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Home Summary Index 209A Index
 

 

  NISSENBAUM’S STANDARD SET OF

  SUMMARIES OF LAW

209A Soup to Nuts

 

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13.0 Appeal

Obligation of Appellant.

An appellate court is free to disregard argument based on transcript not furnished to the court. Kunen v. First Agric. Natl. Bank, 6 Mass. App. Ct. 684, 689 (1978). Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).

It is appellant’s burden to provide the appellate court with those portions of the record that support his claims on appeal. Arch Med. Assocs., Inc. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992).

A party claiming an insufficiency of evidence has the burden on appeal of furnishing the court with all the evidence. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).

Gaps in an audio record of the kind that appeared here can be repaired by using the procedure set out in Mass.R.A.P. 8(b)(3)(v), as amended, 388 Mass. 1110 (1983), captioned: "Unintelligible Portions of the cassette." Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).

Appeals court, as matter of discretion, can and did sent its our own motion to the register of probate, who furnished a copy of the transcript. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).

By not having a full transcript (or agreed statement of what was said), appellate leaves a crucial gap in the record that will cause the Appeals Court to leave the main order undisturbed. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).

Appeals Court will not, as a reviewing court, hypothesize the absence of a response that might support a finding of fear of imminent serious physical harm. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998).

 

Appeal May Proceed if Order Has Expired.

If a c. 209A order expires, the appeal from it is not moot. See Frizado v. Frizado, 420 Mass. 592, 593-594 & n.2 (1995); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998) cited with approval in Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).

The proper issuance of mutual restraining orders is an issue of statewide legal significance that warrants a decision despite expiration of the order. See Cobb v. Cobb, 406 Mass. 21, 23-24 (1989); Frizado v. Frizado, 420 Mass. 592, 593-594 (1995); Larkin v. Ayer Div. of Dist. Ct. Dept., 425 Mass. 1020, 1020 (1997). Cf. Zullo v. Goguen, 423 Mass. 679, 680 (1996); Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).

Entries of the orders against dad have been made in the Commonwealth's criminal records system. Defendant could be adversely affected by entries in the event of future applications for an order under G. L. c. 209A or in bail proceedings. Frizado v. Frizado, 420 Mass. 592, 593-594 (1995). Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).

Defendant has a surviving interest in establishing that the orders were not lawfully issued, thereby removing a stigma from his name and record. Wooldridge v. Hickey, 45 Mass. App. Ct. 637 (1998). But, see Wotan v. Kegan, 428 Mass. 1003, 1003-1004 (1998)

Standard of Review of Trial Court’s Findings.

Chapter 209A proceedings are civil in nature, Jones v. Gallagher, 54 Mass. App. Ct. 883, 886 (2002), and the Appeals Court accords the judge's findings the great deference prescribed by Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).

The Appeals Court may supplement those findings with inspection of the transcript of the c. 209A proceedings to assist us in determining whether the evidence, as matter of law, warranted issuance of the c. 209A order. See Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020, 1020 (1997). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).

If the evidence is conflicting, the Appeals Court reads it in a light most favorable to the plaintiff. See Ford v. Grafton, 44 Mass. App. Ct. 715, 721, cert. denied, 525 U.S. 1040 (1998). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 (2003).