Court Case Record Colleen McCabe vs. Patrick McCabe 2010-J-0487

Colleen McCabe vs. Patrick McCabe Court Case Record

Court Case Number: 2010-J-0487

Case Number2010-J-0487
Case TitleColleen McCabe vs. Patrick McCabe
Case TypeCivil
StateMassachusetts, MA
CountyPlymouth District, PL
CourtPlymouth District, PL
Court Address
Field Date10/25/2010
Close Date10/25/2010


Colleen McCabePro Se Plaintiff/Respondent
Patrick McCabePro Se Defendant/Petitioner
Entry Date Paper Entry Text
10/22/2010 #1 Motion to waive the entry fee, filed by Patrick McCabe.
10/22/2010 #2 MOTION for stay w/attachs, filed by Patrick McCabe.
10/25/2010 #3 RE#2: The motion to waive the entry fee is allowed, notwithstanding the fact that there exists, based on information omitted from the affidavit of indigency, a question regarding the petitioner's indigency status. By the Court (Green, J.).
10/25/2010 #4 ORDER: The defendant's motion for a stay is denied. The motion judge had ample opportunity to observe the demeanor of the plaintiff at the hearing on her request for extension of the order. In his written findings, the judge observes that the plaintiff exhibited clear signs of her extreme fear of the defendant. The defendant suggests that such fear is inadequate to support the extension of a restraining order under G. L. c. 209A, citing Banna v. Banna, 78 Mass. App. Ct. 34 (2010). The defendant misapprehends the effect of Banna. In that case, the judge did not ascertain the current state of affairs at the time of the extension request, instead merely asking the plaintiff if she wished to extend the order. By contrast, in the present case the judge observed that the plaintiff remained in "extreme fear" of the defendant. To the extent that the defendant means instead to argue that extension of the order was inappropriate because the plaintiff's fear had no reasonable basis in fact, he has failed to establish his claim. In particular, the defendant has not submitted the affidavit (and other evidence, if any) submitted in support of the original complaint for a restraining order, and in support of the previous extension. While such an affidavit is inadequate, standing alone, to support extension of an order, in the presence of demonstrated continuing fear on the part of the plaintiff the facts underlying the original order are material to ascertaining whether the fear has a reasonable basis in fact. Since the record before me does not include the evidence on which the restraining order originally issued, and was previously extended, I am not in a position to conclude (as the defendant asserts) that the plaintiff's fear has no basis in fact. By the Court (Green, J.) *Notice/Attest/Image.
10/27/2010 Motion to reconsider paper #3 filed by Patrick McCabe.
10/29/2010 RE#4: The motion for reconsideration is allowed, and after reconsideration, the court's order dated 10/25/10 is to stand. *Notice.