209A Restraining Order Defense Blog

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 appalling about this incident is the raw ignorance 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 what one of black letter law.

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 The case was an unpublished Massachusetts Court of Appeals matter, Docket No. 2005-P-1760 (October 23, 2006), Scholwin v. Scholwin.

Last week in Malden 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? Thankfully this particular judge only has a few more years on the bench before retirement. But political and legislative pressures aside, there is a more immediate and effective way of handling these cases of 209A's being granted without proper consideration of the facts and the law: 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, the lower court judge's decision would be reversed and the 209A order would be vacated retroactively to the date of the hearing, in other words, the order would go away as if never issued. Second, the lower court judge gets a figurative slap on the wrist and another tally on his "overturned" scoreboard.

Judges don't like to be overturned. It creates an impression that a particular judge is not as well versed in the law as s/he should be and has a negative effect on the judge's reputation and professional standing. It also 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 is outright embarrassing.

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 judicial 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.