MA Court of Appeal

NOTICE: The slip opinions and orders posted here are subject to formal

revision and are superseded by the advance sheets and bound volumes of the

Official Reports.

---------------------------------------------------------------------------

45 Mass App Ct 637(1998)

97-P-551 Appeals Court

DENISE E. WOOLDRIDGE

vs.

STEVEN C. HICKEY

Franklin. June 3, 1998. - October 13, 1998.

Present: Kass, Spina, & Beck, JJ.

Abuse Prevention. Moot Question. Practice, Civil, Moot

case, Record.

Civil actions commenced in the Franklin Division of the Probate and Family

Court Department on September 4, 1996.

The cases were heard by David M. Fuller, J.

Joanne I. DeLong for the defendant.

---------------------------------------------------------------------------

KASS, J. On the ground that the record is devoid of any evidence of abuse

in the statutory (G. L. c. 209A) sense, Stephen Hickey appeals from abuse

prevention orders issued against him by a Probate Court judge. Although the

record induces concern that, notwithstanding an absence of evidence of

abuse, the judge may have acceded to the use of c. 209A orders as a

bargaining chip in connection with pending proceedings for modification of

a divorce judgment, Hickey has left a crucial gap in the record that causes

us to leave the main order undisturbed. The appeal is properly before us

under Zullo v. Goguen, 423 Mass. 679, 682 (1996), and an order of a single

justice allowing late filing of a notice of appeal.

1. Circumstances of the c. 209A orders. Under a divorce judgment that

issued some years before the proceedings now under review, Wooldridge and

Hickey had joint legal custody of their three children and Hickey had

physical custody of them. Before she applied for an abuse prevention order,

Wooldridge had filed a complaint for modification of the divorce

judgment.[1] Although that judgment had placed physical custody of the

children with Hickey, the children had, apparently, come to spend more time

with their mother, Wooldridge, than their father, Hickey. Disputes about

responsibility and financial obligations continued to roil between

Wooldridge and Hickey. Following Wooldridge's application for a c. 209A

order, the judge issued three sets of orders: first, on September 4, 1996,

he issued ex parte orders directing Hickey to stay away from Wooldridge

and, somewhat anomalously, from the three children of whom he had physical

custody and joint legal custody; second, an order issued September 12,

after hearing, that extended the abuse prevention order requiring Hickey to

stay away from Wooldridge until November 26; third, on that latter date,

the judge extended the order for an additional six months.

2. Mootness. Although the abuse prevention orders have expired, Hickey's

appeal is not moot. Entries of the orders against Hickey have now been made

in the Commonwealth's criminal records system, and Hickey could be

adversely affected by them 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). Hickey has a surviving interest in establishing that

the orders were not lawfully issued, thereby removing a stigma from his

name and record. Section 7, third par., of G. L. c. 209A provides that

whenever an abuse prevention order is vacated, the court shall direct the

appropriate law enforcement agency to destroy all record of the vacated

order. See Smith v. Joyce, 421 Mass. 520, 521 (1995).

3. Evidence of abuse. For purposes of obtaining a protective order under G.

L. c. 209A, abuse means: "(a) attempting to cause or causing physical harm;

(b) placing another in fear of imminent serious physical harm; (c) causing

another to engage involuntarily in sexual relations by force, threat or

duress." G. L. c. 209A, Sect. 1, as appearing in St. 1990, c. 403, Sect. 2.

Generalized apprehension, nervousness, feeling aggravated or hassled, i.e.,

psychological distress from vexing but nonphysical intercourse, when there

is no threat of imminent serious physical harm, does not rise to the level

of fear of imminent serious physical harm. Larkin v. Ayer Div. of the Dist.

Court Dept., 425 Mass. 1020 (1997). The judge must focus on whether serious

physical harm is imminent and should not issue a c. 209A order on the

theory that it will do no harm, i.e., "seems to be a good idea or because

it will not cause the defendant any real inconvenience." Smith v. Joyce,

421 Mass. at 523 n.1.

In the transcript of the proceedings in the Probate Court, Wooldridge never

speaks of having suffered physical harm; of being in fear of imminent

serious physical harm; or of having been caused through force to engage in

unwanted sexual relations.[2] In the main, what Wooldridge had to say to

the judge was that there seemed to be no reasonable negotiating with her

former husband and that she could not stand arguing with him. She thought a

protective order would level the field in the forthcoming custody and

support discussion -- obviously not an appropriate criterion for issuance

of an abuse prevention order. During the ex parte hearing, in particular,

Wooldridge spoke only of Hickey having been "abusive" and "verbally

abusive." There was no questioning that explored what she meant by that.

The following excerpt from the transcript of the second hearing (following

the ex parte one) conveys the flavor of her testimony on that occasion:

The Court: "Right, but why does that cause you to feel

that you need a restraining order to be in force? Are

you getting hate mail from him or you just --"

Ms. Wooldridge: "No, (inaudible) -- I couldn't get

what I needed from the divorce (inaudible) because

there's no negotiations (inaudible)."

The Court: "But does he do more than that, does he

threaten you, does he --"

Ms. Wooldridge: "He wants (inaudible)."

Ms. Dulong: "I would object to that. She wrote

something up, your honor. I'm not (inaudible) she's

going to testify. I haven't had a chance to see it."

The Court: "Is that a recitation of some prior

incidents?"

Ms. Wooldridge: "Yes, just to explain to you what I

had to go through the first time and letters from

people that (inaudible)."

The Court: "But my question to you is why do you feel

you need the additional protection of an order for

abuse and to stay away from your residence and not

contact you, which if you didn't have you feel you'd be

subject to some danger or imminent physical harm?"

Ms. Wooldridge: "Yes."

The Court: "Why? Why do you feel that?"

Ms. Wooldridge: "Because (inaudible)."

The Court: "That was when you were living with him,

right? You were married?"

Ms. Wooldridge: "That was when we negotiated our

divorce. Every time (inaudible)."

The Court: "Okay. And what's happened recently? You've

been separated for seven years?"

Ms. Wooldridge: "Yeah, and the divorce says that I do

what I do, and there was just fighting about

everything; it was just literally no child support

payments, take care of all the important issues

(inaudible), and there is no attempt, you know, at

discussion, there's just intimidation, there's threats

he's going to take them away from me, threatens them

he's going to take them away from me. My children

depend on me."

The Court: "So you feel the ability to seek legal

redress on the relative responsibilities to the

children under the divorce, you feel that you have

unequal abilities to negotiate with him because of his

intimidating tactics, is that what you're saying?"

Ms. Wooldridge: "Yes."

The questions that the judge put to Wooldridge that we have underscored

show that he had not lost sight of the central importance of the fear of

imminent serious physical harm in these cases. See Commonwealth v. Gordon,

407 Mass. 340, 348-349 (1990). The judge inquires of Wooldridge why she

feels she is subject to some danger of imminent physical harm. Wooldridge

merely responds, "Yes." The judge then asks, "Why? Why do you feel that?"

The transcript reads, "Because," and then, just short of the meat in the

coconut, reads "inaudible." The answer may have described past physical

harm and fear of a repeat performance that gave the judge a basis for his

order.[3] We are not prepared, as a reviewing court, to hypothesize the

absence of a response that might support a finding of fear of imminent

serious physical harm. It is, of course, the burden of an appellant to

provide us 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, therefore, has the burden on appeal of furnishing the court with

all the evidence. 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."

On the basis of the record, as it was allowed to stand, we shall not

disturb the issuance of the protective order issued September 12, 1996,

directing Hickey to stay away from Wooldridge. There was no evidence that

warranted issuance of the ex parte order of September 4, but that order was

subsumed by the posthearing order of September 12. There was no evidence of

imminent serious physical harm to the children. The most that Wooldridge

said about the children, other than that they were subjected to verbal

harassment by their father, is that their father "has hit my son and grabs

him when angry." Without further explanation, that statement was not

evidence of abuse within the meaning of the statute.

The orders of September 12 and November 26, 1996, directing the defendant

Hickey to stay away from Wooldridge are affirmed. The order to him to stay

away from his children is vacated. The Probate Court judge shall cause a

direction to be sent, conformably with G. L. c. 209A, Sect. 7, third par.,

for the destruction of all record of the vacated order.

So ordered.

-------------NOTES------------

[1] The record contains neither the judgment of divorce nor the complaint

for modification. We know of the existence of those documents from

testimony during the c. 209A hearings but know few of their details.

[2] Counsel for Hickey did not include the transcript of the proceedings in

the Probate Court in the record-appendix. Abuse prevention orders and their

review on appeal are civil in nature, not criminal. Transcript of

proceedings in the trial court does not automatically come before us. 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). As matter of discretion, we sent

on our own motion to the register of probate in Franklin County, who

furnished us with a copy of the transcript, but under the cases cited, we

were not bound so to do.

[3] It did not, escape our notice that, in continuing his colloquy with

Wooldridge, the judge remarks, "Okay," and then asks, "And what's happened

recently?" Wooldridge's response describes no current conduct that

amplifies her earlier claim of fear of some imminent physical harm. We do

not think, however, that this exchange justifies an assumption on our part

that Wooldridge's response recorded as inaudible gave the trial judge

nothing to go on to support his ultimate finding and order.