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An 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 Mass. Gen. Laws ch. 209A order, the decision should be supported by findings of fact.
After suffering from more than ten years of verbal and physical abuse inflicted by the husband, the wife filed a complaint for protection from abuse under c. 209A, supported by her affidavit and three police reports. An ex parte abuse prevention was issued directing the husband to refrain from abusing or contacting the wife. The order was extended for one year. Subsequently, the husband filed a verified motion requesting the court to reconsider or vacate the order, stating that the wife had contacted him repeatedly by telephone since the issuance of the order and had spent time with him in Los Angeles while attending the funeral of his mother. In the husband’s view, the wife's repeated "contacts" with him and her "successful requests" to spend time alone with him while they were in Los Angeles "clearly indicated that she did not fear physical or verbal abuse from him and did not fear such abuse in the past." The husband's motion to reconsider or vacate was granted. The wife challenged the decision.
Was the wife’s voluntary contact with the husband sufficient to show that the abuse prevention order was not needed to protect the wife from harm or the reasonable fear of serious harm?
In reversing, the court determined that Mass. Gen. Laws ch. 209A, § 3 contemplated the modification of abuse prevention orders. Further, it allowed for both prospective and retroactive relief. With respect to the retroactive relief sought, the court looked to the principals outlined in Mass. R. Dom. Rel. P. 60(b)(2) (1975) and Mass. R. Civ. P. 60(b)(2). Motions to vacate seeking retroactive relief on the ground of newly discovered evidence were not granted unless the evidence was not available at the trial by the exercise of reasonable diligence, and the evidence was material. Even if the wife's conduct constituted newly discovered evidence, the evidence merely challenged her credibility. With regards to prospective relief, the court determined that the standard for such relief was flexible based on the need for safety in each particular case. The wife's voluntary contact was insufficient to show that the order was not needed to protect the wife from harm or the reasonable fear of serious harm.