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ALM GL ch. 209A, § 3
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797 NE2d 379, 2003 Mass LEXIS 777.
Standard for determining whether prospective relief from a ALM GL c 209A order is warranted must be a flexible
one under Mass. R. Dom. Rel. P. 60(b)(5); the level of impact on the underlying risk from harm that a ALM GL c 209A
order seeks to protect against will vary from case to case. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79,
2005 Mass App LEXIS 36.
Abuse prevention order, entered after a hearing that satisfies due process requirements, should be set aside only in
the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no
longer needed to protect the victim from harm or the reasonable fear of serious harm; furthermore, if the judge
determines that it is appropriate to allow a motion to vacate or terminate a ALM GL c 209A order, the decision should
be supported by findings of fact. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS
36.
With regard to prospective relief, a husband's motion to vacate an abuse prevention order was improperly granted
because the wife's voluntary contact with the husband regarding family pets and a funeral was insufficient to show that
the order was not needed to protect the wife from harm or the threat of serious harm. Mitchell v. Mitchell (2005) 62
Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.
Motion that seeks to vacate retroactively an order issued under ALM GL c 209A on the ground of newly
discovered evidence cannot properly be granted unless it is found that the evidence relied on was not available to the
party seeking relief for introduction at the original trial by the exercise of reasonable diligence, and that such evidence is
material not only in the sense that it is relevant and admissible but also in the sense that it is important evidence of such
a nature that it likely would have affected the result had it been available at the time. Mitchell v. Mitchell (2005) 62
Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.
With regard to retroactive relief from an abuse prevention order, a trial court improperly granted a husband's
motion to vacate because, even if a wife's voluntary contact with the husband concerning pets and a funeral amounted to
newly discovered evidence, a new trial was not warranted based on the fact that the evidence merely impeached the
wife's credibility. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.
Court did not abuse its discretion in issuing a permanent restraining order barring defendant from having contact
with plaintiff or the parties' 14-year-old son after his release from prison, as he spent eight years in prison for raping two
of the parties' children, had physically and sexually assaulted plaintiff, engaged in ominously controlling and wrathful
behavior towards his family while in prison, and upon his release, planned to live in the same general area as plaintiff
and the son. Vittone v. Clairmont (2005) 64 Mass App 479, 834 NE2d 258, 2005 Mass App LEXIS 852, review denied
Vittone v. Clairmont (2005) 445 Mass 1106, 836 NE2d 1096, 2005 Mass LEXIS 633.
Trial court did not err in issuing an ex parte abuse prevention order pursuant to ALM GL c 209A, § 3 against the
fiance and son, as both of them, who resided with plaintiff, were household members under ALM GL c 209A, § 1, the
fiance and plaintiff were in a substantive dating relationship, and plaintiff's affidavits established a sufficient factual
basis for the conclusion that the fiance and son had caused plaintiff physical harm or placed plaintiff in fear of imminent
serious physical harm. Corrado v. Hedrick (2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.
District Judge had the inherent authority to expunge a record of a ALM GL c 209A civil abuse protection order
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation of the
order, nor sealing of the record was sufficient to protect the integrity of the courts, did not send an appropriate message
to the public, and left a record of the order in the system; and (2) the potential harm to the courts and to the victim of the
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL