Callahan v. Callahan
85 Mass. App. Ct. 369
| Mass. App. Ct. | 2014Background
- Callahan sought and obtained a 209A abuse prevention order against Richard in Hampden Probate & Family Court on July 6, 2010, including custody and visitation provisions
- Richard violated the order the same day and was arrested for crimes of violence against April
- Orders were amended on July 19, 2010 to include no contact with the child, with a further hearing scheduled for August 4, 2010
- On September 22, 2010 the order was modified to bar contact, require a 25-yard stay, and keep Richard away from April’s workplace, extending to July 6, 2011
- On July 6, 2011 the order was extended another year to July 5, 2012, and a divorce nisi decree followed a day later
- Richard pled guilty on January 18, 2012 to multiple offenses and received prison and probation terms with conditions mirroring the 209A order; April sought an extension on July 5, 2012, Richard opposed, and a hearing resulted in an extension and denial of modification/termination
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extending the 209A order was proper despite incarceration | April contends continued fear and risk justify extension | Richard argues no basis to extend while imprisoned and under similar probationary protections | Yes; extension upheld despite incarceration |
| Whether fear of imminent serious physical harm is required when abuse is past physical harm and defendant is incarcerated | Fear based on past harm and continued risk supports extension | Incarceration negates imminent-harm fear as a basis for extension | Fear of imminent harm not always required; continued abuse or risk allows extension |
| Whether judge properly weighed totality of circumstances and initial order in deciding extension | Totality, including prior violations and ongoing custody issues, supports extension | Decision overbroad or not properly grounded in initial order | Judge properly weighed totality and affirmed extension |
Key Cases Cited
- Iamele v. Asselin, 444 Mass. 734 (2005) (burden for extension and criteria established)
- MacDonald v. Caruso, 467 Mass. 382 (2014) (extension may be warranted for continued need without new abuse)
- Vittone v. Clairmont, 64 Mass. App. Ct. 479 (2005) (consideration of imprisonment as a factor in extension; fear may persist despite confinement)
- Champagne v. Champagne, 429 Mass. 324 (1999) (preserves public policy to protect from domestic violence; factors beyond imminent harm)
- Crenshaw v. Macklin, 430 Mass. 633 (2000) (discretion at renewal hearing; broad discretion appropriate)
- Jordan v. Clerk of the Westfield Div. of the Dist. Ct. Dept., 425 Mass. 1016 (1997) (context for imminent harm analysis when imprisonment is involved)