S.T. v. E.M.
80 Mass. App. Ct. 423
Mass. App. Ct.2011Background
- Plaintiff sought an abuse prevention order under G. L. c. 209A against the defendant.
- Ex parte order issued February 23, 2010; extension/hearing contemplated March 10, 2010.
- Judge favored mediation and largely avoided a full evidentiary hearing.
- Judge vacated parts of the order without a full evidentiary record, and delayed proceedings.
- On April 16, 2010, plaintiff testified; defendant did not testify; judge barred calling defendant as a witness.
- Court dismissed the matter; plaintiff appealed seeking reinstatement of hearing and proper procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred in preventing defendant from testifying | Plaintiff argues defendant must be allowed to testify to present evidence. | Defendant's side contends no requirement to testify and court may manage evidence. | Yes; court erred by excluding defendant’s testimony. |
| Whether the hearing should have proceeded with full evidentiary presentation | Plaintiff asserts a full hearing should occur with witnesses and evidence. | Defendant argues mediation/alternate forum acceptable and speedy disposition warranted. | Remand for new fair hearing before a different judge. |
| Whether the judge violated statutory directive against coercing mediation | Plaintiff contends court overstepped by steering to mediation without consent. | Defendant contends mediation is appropriate within discretion. | Yes; improper to compel mediation over objection. |
| Whether due-process fairness required opportunity to respond to evidence | Plaintiff argues opportunity to respond and present evidence was denied. | Defendant maintains procedures were adequate given context. | Yes; fairness required opportunity to present relevant evidence. |
Key Cases Cited
- Frizado v. Frizado, 420 Mass. 592 (Mass. 1995) (adverse inference permitted from failure to testify in civil matter)
- Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627 (Mass. 2010) (adverse inference from failure to testify; evidentiary consequences)
- McGinnis v. Aetna Life & Cas. Co., 398 Mass. 37 (Mass. 1986) (civil testimony and inferences in absence of testimony)
- C.O. v. M.M., 442 Mass. 648 (Mass. 2004) (limits on cross-examination; meaningful opportunity to challenge evidence)
- Vittone v. Clairmont, 64 Mass. App. Ct. 479 (Mass. App. Ct. 2005) (serious harm imminence; not issuing 209A order lightly)
- Vaccaro v. Vaccaro, 425 Mass. 153 (Mass. 1997) (records in statewide DV registry; long-term consequences)