I hate you permanently not

Posted on December 20th, 2006, by Dmitry Lev

Another piece of the 209A saga and judicial wisdom (please apply sarcasm as you see fit) has been brought to us by the Chelsea District Court. Here, a judge decided that he would issue a permanent 209A order at the 10 day hearing. Not surprisingly, the Court of Appeals disagreed, noting that under the statute, the maximum length of time allowed for an order issued at the 10-day hearing is one year. Shorter is okay, longer is not. Accordingly, the permanent order was vacated.

What’s most surprising about this incident are the actions of the District Court judge. While other 209A matters at times rest on more subjective issues, like the judge’s finding of facts or placing credibility with one side’s testimony versus another, here the issue is one of clear black letter law and its application.

“Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.” MGL Ch 209A, Sec 3.

Seems rather straightforward. The case was an unpublished Massachusetts Court of Appeals matter, Docket No. 2005-P-1760 (October 23, 2006), Scholwin v. Scholwin.

The 209A Appellate Theatre, Act One

Posted on December 11th, 2006, by Dmitry Lev

Last week at a nearby District Court at a 209A hearing a judge fell for the most obvious and transparent stunt by the Plaintiff: tears. There was no physical abuse. There was no threat of physical abuse. There wasn’t even a hint of the possibility of physical abuse. But instead of considering the merits (or lack thereof) of the case and instead of at least attempting to apply the definition of abuse to the facts, as prescribed by law, the judge looked at the Plaintiff’s tears, looked at the defense attorney, interrupted him, and angrily said: “Counsel, I’ve heard enough!! Can’t you see that this Plaintiff is terrified by your client??” The judge then extended the 209A order for one year. A gross injustice, especially considering that the Plaintiff in this case was an actress with enough stage experience to be able to turn the tears on and off at will.

Sad and unfair.  What to do?  Political and legislative pressures aside, the more immediate and effective way of handling the cases of 209A’s being granted without proper consideration of the facts and the law is this: APPEAL, APPEAL, APPEAL.  While the process is costly and lengthy for the client, and tedious and time consuming for the attorney, two good things come out of a successful appeal.  First, depending on the specifics of the case and the nature of the relief sought, the lower court judge’s decision may be reversed, remanded,  or the 209A order could be vacated altogether.  Second, the lower court judge gets a figurative slap on the wrist and another tally on his “reversed” scoreboard.

Judges don’t like to be reversed.  It sends a strong message to the judge, “Hey, Your Honor, you made a mistake!” The next time that judge hears a 209A case, s/he is bound to approach it more carefully. Being overturned once is unpleasant, but being overturned two, three, four times on the exact same issue could affect a judge’s reputation enough to make them think twice.

Clients are hesitant about appealing orders that only last one year. All things considered, the order will probably expire on its own by the time the Appeals Court decision is rendered. But a Defendant who loses in a 209A case must at least consider an appeal and discuss it with their attorney.  Allowing judges to hand out 209A orders based on theatrical tears alone with no repercussions only reinforces the already rampant  carte blanche in this area.  By keeping judges in check with well planned and well argued appeals, the era of free-for-all 209A’s may just near its final curtain.