NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-186
R.D.
vs.
W.H.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the extension of an abuse
prevention order issued pursuant to G. L. c. 209A, § 3 (209A
order) and from the subsequent modification, rather than
termination, of the order. We affirm.
Background. The parties moved in together in March 2019,
and the plaintiff gave birth to their child in August 2019. In
October 2019, the defendant was indicted in the United States
District Court for the District of Massachusetts on a variety of
drug and gun charges. The defendant pleaded guilty in March
2022, and was awaiting sentencing. On May 9, 2022, the
plaintiff filed a complaint for a 209A order on behalf of
herself and the child, alleging that the defendant had placed
her in fear of imminent serious physical harm. A District Court
judge issued the 209A order ex parte. On May 23, 2022, the
defendant was charged with violating the 209A order. On June 6,
2022, an extension hearing was held on the 209A order at which
both parties were represented by counsel. The plaintiff
testified but the defendant did not, apparently because of the
pending criminal charges. The judge extended the order for one
year. In July 2022, the defendant received a Federal prison
sentence of more than seven years. In August 2022, he filed a
motion to terminate the 209A order or, in the alternative, to
modify it. After a hearing on September 9, 2022, a different
judge (motion judge) modified the order to allow the defendant
to have some contact with the child by telephone and mail.
Discussion. 1. Sufficiency of evidence. The defendant
contends that the judge abused his discretion by extending the
209A order and applied an incorrect legal standard at the
extension hearing. See Constance C. v. Raymond R., 101 Mass.
App. Ct. 390, 394 (2022), quoting E.C.O. v. Compton, 464 Mass.
558, 562 (2013) (extension of 209A order reviewed "for an abuse
of discretion or other error of law"). We disagree.
"The standard for obtaining an extension of an abuse
prevention order is the same as for an initial order -- 'most
commonly, the plaintiff will need to show a reasonable fear of
imminent serious physical harm at the time that relief . . . is
sought.'" S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019),
quoting McDonald v. Caruso, 467 Mass. 382, 386 (2014). "[F]or
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the plaintiff's fear of imminent serious physical harm to be
reasonable, it is not necessary that there be a history –- or
even a specific incident of physical violence." Noelle N. v.
Frasier F., 97 Mass. App. Ct. 660, 665 (2020). In evaluating
whether the plaintiff has met her burden of proving that she has
a reasonable fear of imminent serious physical harm, the judge
"must consider the totality of the circumstances of the parties'
relationship." Iamele v. Asselin, 444 Mass. 734, 740 (2005).
According to the plaintiff's affidavit in support of the ex
parte order, earlier that day, during a telephone call, the
defendant yelled at her and told her that he was going to her
mother's house to attack the plaintiff's brother. The plaintiff
further alleged that the defendant had been "diagnosed with
bipolar disorder/depression," had a history of violence toward
his former wife, had access to weapons in the past, and she
"suspected that he [was] on steroids."
At the extension hearing, the plaintiff testified that
after the ex parte order issued, the defendant was verbally
abusive to her, and "threatened through a third party . . . that
if [she] continue[d] to keep [their] son away from him, that he
[was] going to take [her] down with him." The plaintiff
indicated that the defendant's erratic behavior had "gotten
progressively worse" since he became aware of the sentencing
date in Federal Court, he had threatened to kill himself, and
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she had to "walk on eggshells around him." She also testified
that she was afraid the defendant would become physically
violent toward her based on incidents during which he was "in
[her] face . . . aggressive and in [her] space, and intimidating
[her] with his body size." She testified that she believed the
defendant was staying with relatives who had guns in their
house.
Based on the evidence, the judge could have concluded that
the plaintiff proved by a preponderance of the evidence that the
defendant had placed her in reasonable fear of imminent serious
physical harm. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139,
141 (2006) (reasonable fear of imminent serious physical harm
where defendant was "physically aggressive" with plaintiff
despite not touching her, by screaming and waving his hands in
her face). See also Noelle N., 97 Mass. App. Ct. at 665-666
(erratic and unstable behavior can create reasonable
apprehension that force might be used).
We are not persuaded by the defendant's argument that the
judge applied an incorrect legal standard at the extension
hearing. The defendant points to the judge's remark at the
outset of the extension hearing, explaining to the plaintiff
that he had to find a "reasonable basis" to extend the order
based on her "present apprehension . . . [t]hat could be based
on fear of intimidation, abuse." The judge ultimately found
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that "the plaintiff has established by a preponderance of the
credible evidence that she does suffer from fear of, or
reasonably suffer from fear of physical abuse." To whatever
extent the judge's informal oral comments articulated the
standard imperfectly, we are satisfied that he applied it
correctly. There was no error or abuse of discretion.
2. Defendant's right to be heard. We disagree with the
defendant's assertion that he was deprived of a meaningful
opportunity to counter the plaintiff's claims that the relatives
with whom he was staying had guns in their home, and on a past
occasion, he had spit in his former mother-in-law's face.
A defendant in a 209A extension hearing "has a right to
notice and an opportunity to be heard." M.M. v. Doucette, 92
Mass. App. Ct. 32, 34 (2017). See Guidelines for Judicial
Practice: Abuse Prevention Proceedings § 1:02 (rev. Oct. 2021).
"A meaningful opportunity to be heard includes an opportunity to
address the material and determinative allegations at the core
of a party's claim or defense and to present evidence on the
contested facts." Idris I. v. Hazel H., 100 Mass. App. Ct. 784,
788 (2022).
Here, the defendant, who was represented by counsel,
neither objected to the plaintiff's testimony nor sought
additional time to investigate her assertions. He argues on
appeal that he should have been allowed to present rebuttal
5
evidence, but never requested the opportunity to do so at the
hearing. The defendant did not cross-examine the plaintiff on
either assertion nor address them during closing argument. Any
argument that the defendant was unfairly surprised by the
plaintiff's testimony was waived. See Wilhelmina W. v. Uri U.,
102 Mass. App. Ct. 634, 641 (2023) (arguments not raised to
judge are waived).
3. Termination of the 209A order. The defendant claims
the motion judge abused his discretion by "refusing to even
consider termination of the 209A order." See MacDonald, 467
Mass. at 394. First, we think this argument mischaracterizes
the judge's ruling and the underlying hearing. The defendant's
motion was to terminate the 209A order or, in the alternative,
to modify it to permit contact with the child. At the start of
the hearing, the judge verified that the motion was pleaded in
the alternative. A lengthy dialogue followed between the judge
and counsel, during which they focused on how to facilitate
telephone contact with the child. Toward the end of the
hearing, the judge indicated that his role was not to "mediate"
the dispute, and if pressed to decide the motion, he would deny
it. The defendant responded by returning the discussion to the
logistics of telephone contact. After further back and forth
between the judge and the parties, an agreement was reached that
the order would be modified. When the judge ultimately stated,
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"[T]he motion is denied in part and allowed in part," the
defendant did not object.
We see nothing in the tone or conduct of the hearing that
supports the defendant's contention that the judge refused to
consider termination of the 209A order. After actively
participating in a negotiated agreement for modification and
failing to press for termination of the 209A order in any
meaningful way, the defendant can hardly complain now that he
was deprived of a fair hearing by the judge. See Wilhelmina W.,
102 Mass. App. Ct. at 641.
Moreover, the judge had ample basis to deny so much of the
defendant's motion as requested termination of the 209A order.
The first judge understood the defendant's prison sentence was
imminent when he granted a one-year extension of the 209A order.
That the sentence had been imposed, as expected, when the motion
judge heard the defendant's motion three months later was not "a
significant change in circumstances" that would warrant
termination of the order. See MacDonald, 467 Mass. at 382-383
(termination of existing 209A order requires defendant to "show
by clear and convincing evidence that, as a result of a
significant change in circumstances, it is no longer equitable
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for the order to continue because the protected party no longer
has a reasonable fear of imminent serious physical harm").
Orders extending and
modifying abuse prevention
order affirmed.
By the Court (Shin, Brennan &
Hodgens, JJ. 1),
Clerk
Entered: November 14, 2023.
1 The panelists are listed in order of seniority.
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