Mitchell v. Mitchell
62 Mass.App.Ct. 769 (2005)
- After suffering from more than ten years of verbal and physical abuse inflicted by the husband, the wife, on December 20, 2001, filed a complaint for protection from abuse under c. 209A.
- An abuse prevention order was issued that same day directing the husband to (among other things) refrain from abusing or contacting the wife.
- On June 20, 2002, the husband filed a verified motion requesting the court “to reconsider or vacate” the order.
- “He stated that the wife had contacted him repeatedly by telephone since the issuance of the order and had spent time with him in Los Angeles while attending the funeral of his mother.In the husband’s view, the wife’s repeated contacts with him and her successful requests to spend time alone with him while they were in Los Angeles clearly indicate that she does not fear physical or verbal abuse from him and did not fear such abuse in the past.”
The order was vacated.
The appropriate standard for deciding a motion to reconsider or vacate an abuse prevention order, and whether the husband’s evidence was sufficient to support the judge’s decision.
No. Case reversed.
- The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient grounds for allowing an order to be vacated.
- An abuse prevention order should be set aside only in the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no longer needed to protect the victim from harm or the reasonable fear of serious harm.
- Here, “the evidence that the wife might have acquiesced in some contact with the husband (occasioned, in large part, by the unusual circumstance of the husband’s mother’s funeral) does not suffice to meet the husband’s heavy burden of demonstrating that the order was no longer needed to protect the wife.”
- Prof: Case equates the final order to a judgment in a traditional case.