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23-P-200 Appeals Court
CALLIOPE C. vs. YANNI Y.1
No. 23-P-200.
Middlesex. December 1, 2023. - February 9, 2024.
Present: Wolohojian, Milkey, & D'Angelo, JJ.
Abuse Prevention. Protective Order.
Complaint for protection from abuse filed in the Framingham
Division of the District Court Department on November 1, 2022.
A hearing on the complaint for protection was had before
David W. Cunis, J.
Melissa Levine-Piro (Amanda Castro also present) for the
plaintiff.
D'ANGELO, J. A District Court judge declined to issue a
G. L. c. 209A abuse prevention order (209A order) against the
defendant. The plaintiff appeals from the judge's order and
argues that the judge erred by applying the wrong legal standard
and by incorporating irrelevant considerations into his
1 The parties' names are pseudonyms.
2
analysis. On January 12, 2024, we issued an order reversing the
judge's order denying the plaintiff a 209A order against the
defendant and remanding for further proceedings. This opinion
states the reasons for that order.
Background. On November 1, 2022, the plaintiff applied for
an ex parte abuse prevention order against her ex-boyfriend2
pursuant to G. L. c. 209A. The plaintiff's affidavit asserted
that the following events occurred. The defendant sent her
threatening messages via Instagram. She responded by telling
the defendant to leave her and her family alone. The defendant
then stated that he was on his way to the plaintiff's house and
that he would see the plaintiff in fifteen minutes. He started
calling the plaintiff repeatedly and sent her additional
threatening messages. The plaintiff's affidavit also asserted
that the defendant "had a history of physically and emotionally
abusing [her]" while they were dating. The judge granted the ex
parte 209A order and scheduled a two-party evidentiary hearing
for November 16, 2022.
2 At a subsequent hearing, both parties testified that they
were previously in a dating relationship, which, if the
relationship was substantive, is one circumstance in which a
judge may issue an abuse prevention order. See G. L. c. 209A,
§ 1. The defendant, moreover, did not argue at the hearing that
the parties were not in a substantive dating relationship. He
did not file an appellate brief in this matter.
3
Both parties appeared with counsel for a hearing on whether
a 209A order should be issued against the defendant. The
plaintiff testified that she and the defendant dated from June
of 2017 to June of 2020. She stated that, during their
relationship, the defendant had committed several acts of
violence towards her, including striking her in the face and
destroying her cell phone in front of her, and that the
defendant had verbally threatened her on multiple occasions.
The plaintiff also stated that, after the parties ended their
relationship in 2020, they had no interaction for more than a
year.
On November 1, 2022, after having no contact for over a
year, the defendant sent a direct message to the plaintiff via
Instagram.3 In response to the message, the plaintiff wrote the
defendant, "[P]lease don't contact me or my family from this
point forward." After other messages from the defendant, the
plaintiff responded, "Leave me and my family alone," and, "Stop
victimizing me with the past. I'm not yours to hurt anymore.
My family and I have moved on it's time for you to as well."
Ignoring these requests, the defendant replied, "See you in 15
if your [sic] home." He then proceeded to place eleven
telephone calls to the plaintiff over the next twenty minutes,
3 Copies of the following messages between the parties were
introduced in evidence.
4
none of which the plaintiff answered. The defendant warned the
plaintiff in a direct message, "Don't play games with me[.] I
will absolutely dismantle anything and everything does that make
sense? Are you registering everything I'm saying." After
receiving the multiple telephone calls, but without answering
them, the plaintiff called 911 and a police officer was sent to
the plaintiff's house to check on her parents.
In his testimony, the defendant did not contest any of the
historical facts testified to by the plaintiff, except he said
that the plaintiff had struck him in the past during their
relationship. As to the events of November 1, the defendant
claimed that he had not intended to threaten the plaintiff and
that he "was drunk and not thinking straight" on the day he
contacted her. The defendant thought he had probably been
drinking since the morning. He also testified that he had no
intent to hurt the plaintiff in the future.
After hearing all the evidence and viewing pictures of the
defendant's messages and the plaintiff's responses, the judge
engaged in a discussion with counsel. Although the judge found
the defendant's statement that he would "dismantle everything"
"a little cryptic," he agreed that "it certainly could be taken
as a threat. I have no doubt about that." The judge also found
that the plaintiff testified "credibly to this history of
abuse." The judge added that the plaintiff's fear was "quite
5
palpable. I can see it on her face and in her testimony. She
testifie[d] credibly." In spite of these findings, the judge
expressed concern about the effect a 209A order would have on
the defendant, commenting as follows:
"Sometimes we have to look at it as has the lesson been
learned by the fact that he's for the first time in his
life in a courtroom, you know, with the prospect of having
a restraining order placed upon him which will go on to the
statewide registry for the rest of his life and it will
show up on every -- every CORI check that is done on him."
He later explained, "If [the defendant] had some criminal
history of a long record of violence or of any type of
misbehavior, I think I'd . . . be far more concerned about it.
But I don't really see it."
The plaintiff's counsel argued that the plaintiff's fear
was reasonable given the defendant's history of violence, his
ongoing alcohol abuse, the repeated telephone calls he made to
the plaintiff, the fact that he ignored the plaintiff's multiple
requests to leave her alone, the threats he made against her,
and the fact that he said he was on the way to her house. The
defendant's counsel did not contest any of the facts but
asserted that the defendant should be given one final chance,
and that if the defendant contacted the plaintiff one more time,
she could "come back here and apply again and get it right
away." He stated, "[T]his kid's got a future. He's a graduate
of college."
6
The judge denied the plaintiff's request for a 209A order
and vacated the original ex parte 209A order.
Discussion. We review a judge's decision on a 209A order
"for an abuse of discretion or other error of law." Vanna V. v.
Tanner T., 102 Mass. App. Ct. 549, 552 (2023). "[W]e will not
substitute our judgment for that of the trier of fact. We do,
however, scrutinize without deference the propriety of the legal
criteria employed by the trial judge and the manner in which
those criteria were applied to the facts." (Citation omitted.)
Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).
To obtain a 209A order, a plaintiff must prove by a
preponderance of the evidence that an order is "necessary to
protect her from the likelihood of abuse" (quotation and
citation omitted). Iamele v. Asselin, 444 Mass. 734, 739
(2005). The plaintiff can meet this burden by establishing
(1) that she is in fear of "imminent serious physical harm" and
(2) that her fear is reasonable.4 Id. at 739-740. Accord G. L.
c. 209A, § 1. When determining whether the plaintiff has
satisfied the evidentiary burden, the judge must consider "the
4 The plaintiff also testified that she had suffered
physical abuse from the defendant, which could provide
alternative grounds for an abuse prevention order under G. L.
c. 209A, § 1. Because the judge and the parties at the hearing
focused on the defendant's threats toward the plaintiff, we do
so here as well. Vanna V., 102 Mass. App. Ct. at 552 n.2.
7
totality of the conditions that exist at the time that the
plaintiff seeks the [order]." Iamele, supra at 741.
Here, the plaintiff testified that, based on the parties'
history, the messages the defendant sent her on November 1 put
her in fear. After hearing the evidence and observing the
plaintiff's demeanor in court, the judge characterized her fear
as "palpable" and found that she "testifie[d] credibly." He
also found that one of the defendant's messages "certainly could
be taken as a threat. I have no doubt about that." We
understand the judge's statement that he had "no doubt" that the
defendant's message "could be taken as a threat" to mean that he
agreed that the plaintiff's fearful reaction was a reasonable
one. Additionally, since the defendant discussed going to the
plaintiff's house in "15," there can be no doubt that the fear
was of imminent serious harm.
The plaintiff provided sufficient evidence, which the
judged credited, to sustain her burden of proving that a 209A
order was necessary to protect her from abuse. The judge,
however, improperly considered additional extraneous factors in
deciding whether to issue the 209A order. See Moreno v.
Naranjo, 465 Mass. 1001, 1003 (2013) (concluding that judge
abused his discretion when he relied on effect 209A order would
have on defendant). The judge referred to the lifelong adverse
consequences to the defendant of being subject to a 209A order,
8
including the fact that the order would appear in any future
background checks of the defendant. The effect a 209A order has
on a defendant is not relevant to a judge's assessment of
whether to issue a 209A order. The judge also suggested that
the serious process of going into court and testifying before a
judge should cause the defendant to learn his lesson and leave
the plaintiff alone. These considerations were not relevant to
whether the plaintiff established that she had a "reasonable
fear of imminent serious physical harm," Iamele, 444 Mass. at
736, and should not have been considered by the judge in
deciding whether to issue the 209A order.
Because we conclude that the judge abused his discretion in
declining to issue the 209A order and we seek to put the
plaintiff in the position she would have been in had the judge
properly applied the law and issued the 209A order, we issued an
order on January 12, 2024, reversing the District Court judge's
order denying the plaintiff's request for a 209A order against
the defendant and remanding for further proceedings. On remand,
a two-party hearing on the issuance of a 209A order shall be
scheduled within thirty days of the issuance of the rescript.
The issuance of a new 209A order shall be dependent upon the
plaintiff's demonstrating a continued need for the order. See
Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 782 (2005). In
addition, we directed that a judge of the District Court
9
promptly issue an ex parte 209A order against the defendant on
behalf of the plaintiff until the two-party hearing is held.