DIANE L. LITCHFIELD
vs.
PAUL M. LITCHFIELD.
Docket No.: 99-P-1864
Massachusetts Court of Appeals
Middlesex.
Argued January 9, 2002.
Decided: June 27, 2002.
Abuse Prevention. Protective Order.
Public Policy. Practice, Civil, Judicial discretion.
Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on September 29,
1995.
Proceedings to modify and extend an abuse prevention
order were had before Edward M. Ginsburg, J.
William G. Small for Paul M. Litchfield.
Geoffrey H. Lewis for Diane L. Litchfield.
Toni G. Wolfman & Stephen C. Warneck, for The Women's
Bar Association of Massachusetts & others, amici curiae,
submitted a brief.
Present: Laurence, Dreben, & Trainor, JJ.
DREBEN, J.
The main thrust of the defendant's appeal from a
modification and extension of an abuse prevention order,
pursuant to G. L. c. 209A, is that the restrictions
contained in the order are unreasonable and
unconstitutional.(FN1) The order, dated October 31,
1997, is permanent and requires the defendant to stay at
least 500 yards from the plaintiff and one mile from her
home.(FN2)
Prior to issuing the order in question, the judge, who
was familiar with the case, having presided over the
parties' divorce and having issued or extended orders
under G. L. c. 208, 34B,(FN3) held a hearing and heard
from both parties, individually.(FN4) The gist of the
defendant's statements, in support of his motion to
change the 500-yard and one-mile restrictions, was that
his mother, his friends, and his business contacts lived
within the one-mile radius of the plaintiff's home and
that he would be precluded from visiting his family and
from conducting business in the town in which he had
lived his whole life. The plaintiff, on the other hand,
in opposing a change of the geographic restrictions of
the order then in place, made the following points: over
a period of ten years, including when she had been
pregnant with her first child, the defendant repeatedly
beat and threatened her. He also threatened her brothers
and father. He was in prison for various charges
including assault and battery against her and for
possessing a machine gun and silencer.(FN5) She stated
that the children were afraid of the defendant, and she
was very fearful of him, even now in court, and would
never feel safe.
In deciding whether to modify or renew an abuse
prevention order, a judge's discretion is "broad."
Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). See
Kindregan & Inker, Family Law and Practice 57.7 (2d ed.
1996). His or her statutory authority is based on "the
Commonwealth's public policy against domestic abuse --
preservation of the fundamental human right to be
protected from the devastating impact of family
violence." Champagne v. Champagne, 429 Mass. 324, 327
(1999). The determination of what distance is sufficient
to provide an appropriate zone of protection for an
abused person or family depends upon the facts of each
case and the judge's assessment of the threat posed by
the abuser. In view of the criminal assaults and
batteries upon the plaintiff and the defendant's prior
illegal possession of a machine gun, the judge did not
exceed the wide discretion accorded him by G. L. c.
209A, 3, in concluding that the circumstances warranted
the relief ordered.(FN6)
The defendant speculates that he may unknowingly be in
violation of the 500-yard order. While 500 yards is a
long distance,(FN7) the defendant's fears are not
supported by our cases. He "cannot be convicted of
violating a 'no contact' [or stay away] order issued
under c. 209A where the contact occurs in circumstances
where [he] did not know, and could not reasonably have
been expected to know," of the proximity of the
plaintiff or his children. Commonwealth v. Raymond, 54
Mass. App. Ct. 488, 493 (2002). This is consistent with
the "'long-standing' common-law principle that, absent
contrary indication from the Legislature, we assume that
the Legislature did not intend 'to make accidents and
mistakes crimes.'" Commonwealth v. Finase, 435 Mass.
310, 315 (2001), quoting from Commonwealth v. Collier,
427 Mass. 385, 388 (1998). Commonwealth v. Raymond, 54
Mass. App. Ct. at 493.
The defendant also claims that the order is invalid on
two other grounds. Without in any way suggesting that
these claims have merit, we do not reach them. His
contention that an order by another judge extending an
earlier c. 209A order for one week to October 31, 1997,
to allow the judge familiar with the case to act on the
permanent terms of the order, was invalid is not
properly before us. At the hearing on October 24, 1997,
when the judge indicated she would extend the order, the
defendant acquiesed to the extension or at least waived
any objection to it. We also do not reach the
defendant's constitutional arguments as they were raised
for the first time on appeal.
Since we find no abuse of discretion in the October 31,
1997 order, that order is affirmed.(FN8)
So ordered.
Notes:
(FN1). We acknowledge the helpful brief of amici, the
Women's Bar Association of Massachusetts, the Domestic
Violence Council, Inc., and Jane Doe, Inc.
(FN2). The order contained the same terms as a previous
order issued under G. L. c. 208, 34B, which on its face
stated that it was agreed to by the parties. Although
the defendant did not attempt to have the order
corrected to show that he had not agreed to its
geographic terms (he had agreed to its permanency), we
do not base our decision on whether the defendant agreed
to the order.
(FN3). The order contained in the record appendix
indicates it was issued on June 3, 1997, and vacated on
July 31, 1997, when another order entered.
(FN4). Portions of the October 31, 1997 hearing are
inaudible and it may be that the parties were not under
oath. Neither party raises any objection on that score.
Both parties filed motions to include additional
material in the record on appeal, and each opposed the
other's motion. The plaintiff sought to file a
supplemental appendix which included, among other
things, her affidavits in support of the several abuse
prevention orders that were issued since 1995; the
defendant wanted to include the transcript of the
hearing at the divorce proceeding in support of his
contention that he did not agree to the geographic terms
of the c. 208, 34B, order. Since we do not base our
decision on the defendant's agreement to the terms of
the c. 208 order, and since the statements of each of
the parties at the October 31, 1997 hearing set forth
their contentions and were transcribed, we deny both
motions to supplement the record.
(FN5). In his brief the defendant acknowledged that at
the time of the June 3, 1997 hearing, when he had been
brought to court pursuant to a writ of habeas corpus, he
was incarcerated at M.C.I, Cedar Junction, on a sentence
for possessing a machine gun.
(FN6). Had the record not indicated the extreme danger
posed to the plaintiff, particularly by the defendant's
possession of a machine gun and silencer, the imposition
of such a great distance in a stay away order should
have been accompanied by findings explaining the unusual
order.
(FN7). See Commentary to 4.0 of the Guidelines for
Judicial Practice: Abuse Prevention Proceedings at 59
(Dec. 2000), pointing out that an order which requires
the defendant to stay a great distance away from the
plaintiff is difficult to enforce, and that an order up
to 100 yards is usually sufficient.
(FN8). The plaintiff seeks legal fees under G. L. c.
208, 17 & 38. Those provisions do not apply to this
case. In the absence of any claim under G. L. c. 209A,
3(f), we do not consider whether that section may be
applicable to these proceedings. See Gustin v. Gustin,
420 Mass. 854, 858 (1995).