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MacDonald v. Caruso (Lawyers Weekly No. 10-039-14)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11381   TRACY MacDONALD  vs.  KEVIN CARUSO. Plymouth.     November 4, 2013.  ‑  March 11, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Abuse Prevention.  Practice, Civil, Presumptions and burden of proof.  Evidence, Presumptions and burden of proof.  Probate Court, General equity power.       Complaint for protection from abuse filed in the Plymouth Division of the Probate and Family Court Department on June 25, 1999.   A motion to terminate an abuse prevention order, filed on May 20, 2011, was heard by Lisa A. Roberts, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Thomas Arthur Hensley for the defendant. Claire Laporte, Rebecca Cazabon, Stacy Anderson, Benjamin Nardone, & Shrutih Ramlochan-Tewarie, for The Domestic & Sexual Violence Counsel, Inc., & others,  amici curiae, submitted a brief.       GANTS, J.  The central issue in this case is the standard to be applied when a defendant seeks to terminate a permanent abuse prevention order under G. L. c. 209A, § 3.  We conclude that a defendant who seeks to terminate such an order must show by clear and convincing evidence that, as a result of a significant change in circumstances, it is no longer equitable for the order to continue because the protected party no longer has a reasonable fear of imminent serious physical harm.  Having considered the evidence presented here in support of the defendant’s motion to terminate the permanent order, in light of the totality of the circumstances, we conclude that the judge did not abuse her discretion in denying the motion. Background.  According to the complaint and affidavit filed by the plaintiff, Tracy MacDonald, on June 25, 1999, in support of her application for an ex parte temporary restraining order under G. L. c. 209A, § 4, against the defendant, Kevin James Caruso, the plaintiff had obtained an “order of protection” in the State of New York against the defendant in March, 1994.  She left New York, where she had resided, on November 6, 1995, because the defendant threatened to kill her, and she has not lived in New York since that date.  On June 1, 1999, she began receiving “odd mail” in Massachusetts, where she resided, postmarked in the region where the defendant then resided, stating that she had inquired about numerous products; one […]

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Posted by Massachusetts Legal Resources - March 11, 2014 at 5:44 pm

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