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17-P-924                                           Appeals Court

                          G.B.   vs.   C.A.


                           No. 17-P-924.

           Norfolk.     May 3, 2018. - November 1, 2018.

           Present:   Sullivan, Blake, & Englander, JJ.


      Abuse Prevention.    Protective Order.   Res Judicata.




     Complaint for protection from abuse filed in the Dedham
Division of the District Court Department on June 30, 2016.

     A motion to extend an abuse protection order was heard by
Paul J. McCallum, J.


    Syrie D. Fried for the defendant.


    BLAKE, J.   Following a three-day evidentiary hearing, a

judge of the District Court extended an abuse prevention order,

which had been issued ex parte, for a period of one year.
                                                                     2


The defendant appeals,1 claiming that the evidence was

insufficient to issue the G. L. c. 209A order (209A order) and

that the doctrine of res judicata precludes entry of the order.

We affirm.

     1.    Chapter 209A proceedings.   a.   December 4, 2015,

complaint.    We summarize the facts as the judge may have found

them.    Compare Aguilar v. Hernandez-Mendez, 66 Mass. App. Ct.

367, 367-368 & n.1 (2006).    The parties were involved in a

dating relationship for close to three years.     Their

relationship ended on December 2, 2015.     The following day,

December 3, the defendant, a Boston police officer, appeared at

the plaintiff's workplace.2    A struggle ensued when he attempted

to return ceramic flowers to the plaintiff, which he had taken

from her home after having given them to her as a gift about a

year earlier.    The incident was captured by the plaintiff's

workplace security cameras, from two different angles.       The

video equipment did not record sound.

     The videotape recordings show that the plaintiff threw the

flowers in the trash, and the defendant, who had moved behind

the service counter, attempted to, and finally did, retrieve




     1   The plaintiff did not participate in this appeal.

     2 The plaintiff's workplace is located on a busy street in
Boston.
                                                                     3


them.    The plaintiff lunged at the defendant, pointing long

fingernails toward his face, and a struggle ensued.    Some of the

struggle appears on the recording, showing the plaintiff

attempting to take the flowers back, and the defendant keeping

them away from her.    The parties then went off camera for a

period of time.    The plaintiff eventually landed on the ground,

injuring her face and lip.3    The recording did not capture how

she landed there or how she was injured.    The parties then came

into the range of the camera and became visible on the

recording.    As the plaintiff attempted to call the police, the

defendant tried to get the cellular telephone (cell phone) away

from her; he boxed her in to a corner of the store.    The

plaintiff was initially unsuccessful in calling the police; the

defendant disconnected and muted her cell phone.    The defendant

admitted that he had done so, contending that he wanted to talk

to the plaintiff about the situation because "it might not be

good for [her]."    As a result of the 911 hang-up call, a 911

operator called back and the defendant answered the plaintiff's

cell phone.    The defendant then left the store and walked across

the street to the police station.4    Officers arrived on the scene




     3 A Boston police detective noticed a red mark near the
plaintiff's eye and some swelling and redness around her mouth.

     4   The defendant was not assigned to this police station.
                                                                     4


and spoke to him at length.    They then came in the store, and

the recording was played for them.    Initially, they did not

speak to the plaintiff; she spoke Spanish and none of the

officers spoke Spanish.    Eventually, a Spanish-speaking officer

arrived and assisted in interviewing the plaintiff.    The

plaintiff was transported to a hospital, treated, and released.

     The following day, December 4, 2015, both parties appeared

at the West Roxbury Division of the Boston Municipal Court, each

seeking a 209A order against the other.    The judge requested

that the video recording of the incident be brought to the

court.   After viewing the video, the judge denied both 209A

requests.5

     Sergeant Detective John Hamilton, a member of the Boston

police department domestic violence unit, was assigned to this

case.    Following his investigation, Hamilton determined that the

plaintiff was the aggressor.    As a result, he sought a criminal

complaint against her for assault and battery on a family

member, with a hearing date of February 2, 2016.    The defendant

was not charged with any offense.    The matter was also referred

to the police department's internal affairs division because it


     5 The only transcript in the record on appeal is for the
evidentiary hearing held in the Dedham District Court in July,
2016, which resulted in the extension order now on appeal. The
defendant has not provided us with any other hearing
transcripts.
                                                                      5


was a domestic violence incident involving a Boston police

officer.

    b.     January 15, 2016, complaint.    Approximately six weeks

later, on January 15, 2016, the plaintiff returned to the West

Roxbury court house and filed another complaint seeking a 209A

order.   In her affidavit, the plaintiff alleged that on December

9, 2015, the defendant followed her in his motor vehicle.       She

stated that she was sitting in the passenger seat of a motor

vehicle when the defendant pulled up next to her and looked at

her with "anger in his face."    When she grabbed her phone to

call 911, the defendant drove away.       She further alleged that,

on January 2, 2016, the defendant solicited a friend from Spain

to call her and "threaten [her] to not go to court" on February

2, 2016.   The plaintiff averred that the defendant was

intimidating her and that she did not feel safe.      A different

judge denied her request for a 209A order.

    c.     Clerk magistrate hearing.   On February 2, 2016, the

parties appeared before a clerk magistrate for a hearing on the

criminal complaint application against the plaintiff stemming

from the December 3, 2015, altercation.      After the hearing, and

with both parties' assent, the clerk magistrate took no action.

She told the parties that she would hold the application "in

abeyance" for sixty days and that, if there were no further

incidents, the complaint would be dismissed.      She also told the
                                                                        6


parties to stay away from one another.       The application was

ultimately dismissed with the following notations:       "no probable

cause found," "request of complainant," and "failure to

prosecute."

       d.    May 12, 2016, complaint.   On May 12, 2016, the

plaintiff returned to the West Roxbury court house and filed

another complaint seeking a 209A order.       The complaint itself

stated that the defendant carried a gun, and listed December 3

and 9, 2015, as prior abuse dates.       In her affidavit, which

directed the plaintiff to "[d]escribe in detail the most recent

incidents of abuse," she alleged that the defendant was "not

complying with the order of not contacting me."       Specifically,

she alleged that the defendant drove by her work; that, on May

7, 2016, he had contacted her on an Internet application called

"WhatsApp," and that he "went to Housing to try to tell lies."6

She also stated that the defendant was following her from her

children's school and that internal affairs was investigating

him.       The plaintiff's request for a 209A order was continued for

a two-party hearing on May 19, 2016, at which time both parties

appeared.      A third judge denied the requested order.



       At the evidentiary hearing that resulted in the extension
       6

order now on appeal, see part 1.e., infra, the defendant
acknowledged sending the plaintiff a text message on WhatsApp,
but testified that he did so in error. He hung up the call when
he realized his mistake and did not leave a message.
                                                                    7


     e.   June 30, 2016, complaint.   On June 30, 2016, the

plaintiff returned for a fourth time to the West Roxbury court

house seeking a 209A order.   Because the plaintiff had moved to

a location outside of the West Roxbury jurisdiction, she was

referred to the Dedham District Court.    There, she applied for a

209A order, which was granted after an ex parte hearing.      The

extension of this order is the subject of the present appeal.

In the June 30 complaint, the plaintiff recounted the December

3, 2015, altercation, indicating that the defendant grabbed her,

struck her in the face, pushed her, and slammed her against the

ground.   She also claimed that two different judges on two

different dates ordered the defendant to stay away from her, not

to drive by her job, and not to contact her in any way, and that

he had violated those orders on five separate dates.7   She stated

that she is "tired of being afraid and always looking over [her]

shoulders."   The judge entered an ex parte 209A order and

scheduled the matter for a further hearing.    A different judge

presided over a three-day evidentiary hearing and extended the




     7 When asked by the judge at the ex parte hearing in Dedham
District Court whether her requests for 209A orders had been
denied in the West Roxbury Division of the Boston Municipal
Court because she did not live within that court's jurisdiction,
she answered that the order was denied "because we both agreed
not to talk to each other and not to contact each other." This
was not accurate.
                                                                     8


209A order for one year, to July 14, 2017.     This appeal

followed.

       2.   Sufficiency of the evidence of abuse.   We review the

issuance of a 209A order "for an abuse of discretion or other

error of law."    E.C.O. v. Compton, 464 Mass. 558, 562 (2013).

"[A] judge's discretionary decision constitutes an abuse of

discretion where [the reviewing court] conclude[s] the judge

made a clear error of judgment in weighing the factors relevant

to the decision, . . . such that the decision falls outside the

range of reasonable alternatives."    L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014).     A plaintiff seeking the extension

of an abuse prevention order must prove "by a preponderance of

the evidence . . . that the defendant has caused or attempted to

cause physical harm, committed a sexual assault, or placed the

plaintiff in reasonable fear of imminent serious physical harm."

MacDonald v. Caruso, 467 Mass. 382, 386 (2014).     See Iamele v.

Asselin, 444 Mass. 734, 736-737 (2005).     "In reviewing the

judge's decision to [allow] the plaintiff's request for an

extension of her protective order, we will not substitute our

judgment for that of the trier of fact.     We do, however,

scrutinize without deference the propriety of the legal criteria

employed by the trial judge and the manner in which those

criteria were applied to the facts" (quotation omitted).        Id. at

741.
                                                                    9


     The defendant argues that the plaintiff failed to prove, by

a preponderance of the evidence, that she suffered abuse.8   He

focuses his claim on the fact that the only "new" evidence

presented by the plaintiff in support of the 209A request was an

incident where the defendant drove by the plaintiff's workplace.

While we might agree that that incident, in isolation, would be

insufficient for the issuance of a 209A order, this does not end

the inquiry.   Our cases are clear that "[i]n evaluating whether

a plaintiff has met her burden, a judge must consider the

totality of the circumstances of the parties' relationship."

Id. at 740.    This is so because "[s]uch consideration furthers

the Legislature's purpose to establish a statutory framework to

'preserv[e] . . . the fundamental human right to be protected

from the devastating impact of family violence.'"    Id., quoting

Champagne v. Champagne, 429 Mass. 324, 327 (1999).    Indeed, in

evaluating whether an initial 209A order or its extension should

issue, the judge must "examine the words and conduct 'in the

context of the entire history of the parties' hostile

relationship.'"   Vittone v. Clairmont, 64 Mass. App. Ct. 479,

487 (2005), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 930

(1999).


     8 As pertinent here, abuse is defined as "attempting to
cause or causing physical harm"; [or] "placing another in fear
of imminent serious physical harm." G. L. c. 209A, § 1.
                                                                  10


     Here, each party sought to introduce the video recording of

the December 3, 2015, incident, as each contended that the

recording would vindicate him or her, respectively.   In

discussing with counsel the evidence that would be offered, the

judge stated, "I think I have to hear everything to make a

decision."   In response, counsel for the plaintiff suggested

that the parties stipulate to present evidence from "December 3,

2015 onwards," to which counsel for the defendant responded,

"That's fine."   The judge's statement and the parties'

stipulation is consistent with Iamele and its progeny.     The

touchstone of an analysis as to whether a plaintiff has met her

burden in a 209A proceeding must include a consideration of the

totality of the circumstances of the parties' relationship.9     The

judge properly considered the events of December 3, 2015, and

the subsequent actions of the defendant in considering the

plaintiff's request for an extension of the 209A order.




     9 Here, those facts include the defendant's failure to stay
away from the plaintiff both before and after the sixty-day
window imposed by the clerk magistrate; the internal affairs
investigations, which are likely to engender hostility; the
parties' demeanor in court; and the likelihood that the parties
will encounter one another in the course of their usual
activities where the defendant is a Boston police officer, and
the plaintiff's workplace is on a main thoroughfare in Boston.
See Iamele, 444 Mass. at 741.
                                                                    11


       We agree with the defendant that the video recording shows

the plaintiff acting in an aggressive manner, and that the

plaintiff's testimony was conflicting at times.    However, it was

ultimately up to the judge to determine the credibility of the

witnesses.   He could have believed her version of events, or

not.   Indeed, he would have been within his discretion in

finding that the plaintiff was the initial aggressor in the

December, 2015, incident, or that it involved mutual combat.

Neither finding, however, would negate the further discretion

afforded the judge to consider this incident in the totality of

the circumstances surrounding the request for the 209A order at

issue in this case.

       Both parties testified to their version of what occurred on

the video, and what occurred off camera.    As to what was not

captured on the recordings, the judge heard conflicting

evidence.    The plaintiff testified that the defendant hit her

and threw her to the ground.    The defendant testified that while

his back was turned, she grabbed him, lost her grip, and fell.

Although we review documentary evidence de novo, we review other

evidence under the usual standard.    See, e.g., Commonwealth v.

Hoyt, 461 Mass. 143, 148 (2011); Commonwealth v. Bean, 435 Mass.

708, 714 n.15 (2002).

       Overall, the judge was in the best position to assess the

parties' credibility.    Not only did he observe the parties as
                                                                   12


they testified, but he viewed the events on the recordings, and

he heard the testimony of all the witnesses concerning what

happened on and off camera, as well as the conduct of each of

the parties subsequent to the December, 2015, incident.     This

conduct includes, but is not limited to, the defendant's efforts

to prevent the plaintiff from calling 911, the defendant's

repeated intrusions into the plaintiff's day-to-day activities

over the course of the next several months, and the utter lack

of allegations that the plaintiff attempted to contact the

defendant during that time.   This evidence is sufficient to

support the judge's conclusions.   See S.T. v. E.M., 80 Mass.

App. Ct. 423, 429 (2011) ("Credibility determinations and an

evaluation of the sufficiency of all the evidence are matters

for the hearing judge to decide").   See also Adoption of Larry,

434 Mass. 456, 462 (2001) (deferring to judge's assessment of

witness credibility).

     In considering whether the plaintiff was in reasonable

fear, the judge implicitly credited the evidence that the

defendant interfered with the plaintiff's efforts to call 911,10




     10That the plaintiff did not include this in her affidavit
is not dispositive. This was a factual and legal conclusion
that the judge was permitted to make having viewed the video
tape recording and observed the witnesses' testimony. Indeed,
victims of domestic violence may disclose details of the abuse
they suffered over time or in vague or contradictory terms. See
A. Olagunju & C. Reynolds, Domestic Violence, 13 Geo. J. Gender
                                                                  13


an action which is tantamount to intimidating a witness.11

Hamilton testified that the plaintiff attempted to call 911

prior to the defendant making any such call.12   As a result of

this testimony, the following exchange occurred between the

judge and Hamilton:

     Q.: "And further on did . . . [the defendant] ever inform
     you that he had hung up one of the calls to 911?"

     A.:   "He did not."

     Q.: "Had you known that[,] would that have given rise to
     the issuance of a criminal complaint against him?"

     A.:   "I don't know.   I, I don't believe it would have."

     . . .

     Q.: "Have you ever charged someone with intimidation of a
     witness when they hang up a phone call?"

     A.:   "I have not personally, no sir."

     Q.: "Wouldn't that give rise out of the statute to
     intimidation if someone hung up -- "

     A.:   "I believe it would, sir."




& L. 203, 250 (2012). Moreover, the plaintiff testified in some
detail about this incident at the evidentiary hearing.

     11Cf. Commonwealth v. Fragata, 480 Mass. 121, 129 (2018)
(where defendant did not allow the victim to call 911 and would
not let her leave, "the prosecutor could have argued that the
defendant attempted or caused physical injury to the victim or
intimidated her to prevent her from contacting the police, i.e.,
with the intent to interfere with a criminal investigation").

     12A Boston police incident history form was admitted in
evidence. It reflected abandoned calls during the altercation.
                                                                   14


    On direct examination the plaintiff was asked, "Do you fear

[the defendant]?" to which she responded, "A lot, a lot, a lot,

a lot."     There was a sufficient basis for the judge to conclude,

based on the totality of the circumstances, that the plaintiff's

subjective fear of physical harm was objectively reasonable.

See Smith v. Jones, 75 Mass. App. Ct. 540, 544-545 (2009).       Cf.

V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017) (in a civil

harassment prevention order proceeding, it is necessary to look

at the whole course of the defendant's conduct).

    Although the judge did not make findings of fact, in

extending the order, he stated, "[A]fter hearing and

consideration of all the evidence and the reasonable inferences

I've drawn from all the evidence, I find that the plaintiff,

[G.B.] has met her burden of proof in this case and I'm

extending [the] order against [C.A.] for a period of a year."

Indeed, where we are able to discern a reasonable basis for the

order in the judge's rulings and order, no specific findings are

required.    See S.T., 80 Mass. App. Ct. at 429; Ginsberg v.

Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006) (affirming

extension where judge made no oral or written findings, but

"[t]he judge's questions during the hearing and her ultimate

decision make it clear that she credited [the plaintiff's]

version of the evidence and rejected [the defendant's]

conflicting testimony").     Contrast Iamele, 444 Mass. at 741
                                                                   15


(vacating and remanding where judge found that plaintiff was in

fear, but, without further explanation, declined to extend

c. 209A order).

     3.   Collateral estoppel.   The defendant next claims that

the judge erred in considering the December 3, 2015, incident

because in December, 2015, and May, 2016, two different judges

had previously determined that the defendant's actions on

December 3 did not constitute abuse.13   He argues that principles

of res judicata prevent a reconsideration of the incident that

was already litigated in his favor.    We view this issue as one

of issue preclusion, or collateral estoppel.14


     13While the record reflects that neither of the parties'
December, 2015, c. 209A complaints resulted in stay away orders,
the defendant did not provide a transcript of the December 4,
2015, hearing. Nor did he provide a transcript of the May 19,
2016, hearing. See note 5, supra. Accordingly, we are unable
to determine the reasons that the judges declined to issue the
requested orders. It is the appellant's burden to provide us
with a complete record. See Mass. R. A. P. 18 (a), as amended,
425 Mass. 1602 (1997).

     14"The term 'res judicata' includes both claim preclusion,
also known as true res judicata, and issue preclusion,
traditionally known as collateral estoppel." Mancuso v.
Kinchla, 60 Mass. App. Ct. 558, 564 (2004). While the defendant
frames his argument as claim preclusion, we view it as one of
issue preclusion, as he contends that on prior occasions judges
determined that he did not abuse the plaintiff on December 3,
2015. "[A] party is precluded from relitigating an issue when:
(1) there was a final judgment on the merits in [a] prior
adjudication; (2) the party against whom estoppel is asserted
was a party (or in privity with a party) to the prior
adjudication; (3) the issue in the prior adjudication is
identical to the issue in the current litigation; and (4) the
issue decided in the prior adjudication was essential to the
                                                                   16


    The defendant asked the judge to view the video recordings

of the December 3 incident and stipulated to the admission of

this evidence.   The parties agreed below that the entire course

of conduct was relevant, see Iamele, supra, and an appeal

arguing a different theory of the evidence therefore is

unavailing.   As the issue of collateral estoppel was not argued

below, it is waived.   See Carey v. New England Organ Bank, 446

Mass. 270, 285 (2006) ("An issue not raised or argued below may

not be argued for the first time on appeal" [quotation

omitted]).

    Even if the defense of collateral estoppel were not waived,

it is unavailable for a separate reason as well.   To consider

the applicability of issue preclusion, "we look to the record to

see what was actually litigated" in the prior proceedings.

Kobrin v. Board of Registration in Med., 444 Mass. 837, 844

(2005).   If the doctrine is asserted as a defense, as is the

case here, "[t]he guiding principle . . . is whether the party

against whom it is asserted 'lacked a full and fair opportunity

to litigate the issue . . . .'"   Martin v. Ring, 401 Mass. 59,

62 (1987), quoting Fidler v. E.M. Parker Co., 394 Mass. 534, 541

(1985).   On this record, we cannot say that the issues in the



earlier judgment." McLaughlin v. Lowell, 84 Mass. App. Ct. 45,
56 (2013), quoting Porio v. Department of Revenue, 80 Mass. App.
Ct. 57, 61-62 (2011).
                                                                   17


prior 209A complaints, whether credited by the various judges or

not, were identical to those in this case and therefore,

actually litigated.   See McLaughlin v. Lowell, 84 Mass. App. Ct.

45, 56 (2013), quoting Porio v. Department of Revenue, 80 Mass.

App. Ct. 57, 61-62 (2011).   This complaint and each complaint

and affidavit previously filed by the plaintiff recited both

historical and new incidents involving the defendant.     See M.B.

v. J.B., 86 Mass. App. Ct. 108, 110-111 (2014).   Furthermore, we

do not have the prior 209A hearing transcripts, and we are

unable to ascertain the basis of those earlier decisions.15    As a

result, issue preclusion is not available to the defendant, and

the judge's decision must be upheld for this reason as well.

See Day v. Kerkorian, 61 Mass. App. Ct. 804, 809 (2004).     Cf.

Krapf v. Krapf, 439 Mass. 97, 109 (2003) (rejecting the

defendant's claim of res judicata where the "record was not

sufficiently developed to enable the court to determine the

judge's reasons for dismissing the complaint . . . with

prejudice").16


     15It is, however, clear from the dockets before us that
this was the only multi-day hearing involving multiple
witnesses. Direct and cross-examination was extensive.

     16Cf. Adoption of Frederick, 405 Mass. 1, 5-6 (1989)
(findings of fact in a prior care and protection proceeding
should not have preclusive effect; nor should they be
dispositive on a subsequent petition to dispense with parental
consent to adopt); Adoption of Karla, 46 Mass. App. Ct. 64, 70
(1998), quoting Cennami v. Department of Pub. Welfare, 5 Mass.
                                                               18


                                   July 15, 2016, extension
                                     order affirmed.




App. Ct. 403, 408 (1977) ("[i]n any proceeding involving the
custody of a child concerns of res judicata must inevitably give
way to an overriding concern for the welfare of the child").
