4.0 Obligation of the Judge to Exercise Discretion

Champagne v. Champagne, 429 Mass. 324, 327 (1999) Case addressing whether G. L. c. 208, § 18, empowered a probate court to issue permanent orders, the court stated [in dicta] that "[a]lthough parties may receive c. 209A protective orders to supplement a divorce decree, they must renew these protective orders annually."

The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options. Discretion "implies the absence of a hard-and-fast rule" and may, in some settings, encompass taking no action. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).

Proper exercise of judicial discretion requires more than avoiding "arbitrary determination, capricious disposition, or whimsical thinking." It imports a willingness, upon proper request, to consider all of the lawfully available judicial options. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).

"Where discretion to grant relief exists, a uniform policy of denying relief is error." Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).

It is error for a judge to refuse to exercise discretion. Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1982) cited with approval in Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).

It is error to refuse, on the basis of personal preference or philosophy, a request to give consideration to a permanent order permitted by G. L. c. 209A. Such consideration need not be extensive or formal, only conscientious. Lonergan - Gillen v. Gillen, 57 Mass. App. Ct. 746 (2003).