Opinion
21-P-324
02-15-2022
B.N. v. B.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
B.L. appeals from a one-year extension of an abuse prevention order issued against him pursuant to G. L. c. 209A, § 3, on the complaint of his estranged biological daughter, B.N. B.N. did not file a brief in this court and did not participate in oral argument. On the record before us, we conclude that at the extension hearing the judge was presented with insufficient evidence to meet the statutory requirement (a reasonable fear of imminent serious physical harm), and we therefore vacate the extension order.
An ex parte hearing was conducted telephonically on July 17, 2020, and an abuse prevention order issued the same day. Both parties were present on July 31, 2020 at a telephonic hearing to extend the order. After that hearing, the judge extended the order for one year (extension order).
In the affidavit in support of her original application and during the hearing on the extension order, B.N. asserted the following: B.L. is her biological father and "gave [B.N.] up" for adoption when she was four years old. B.N. and B.L. first made contact online when B.N. was seventeen; B.N. was initially "excited to meet [her] biological father," but "immediately felt uncomfortable" because he persistently texted her even though she was not responding. B.L. contacted B.N.’s "godsister" and aunt to find out why B.N. stopped responding to him and insulted B.N.’s family and friends "in order to find out why [B.N.] wasn't talking to [him]." B.N. felt it was "overwhelming and overbearing" that B.L. was trying to contact her through her friends and family. B.N. heard from her godsister's family that B.L. had a history of domestic violence (breaking his fiancée's ribs) and substance abuse. After B.N. informed her parents about the contact with B.L., B.N.’s parents asked B.L. to stop contacting B.N. He ignored their request and sent B.N. a "creepy" video recording (video) featuring a man who shares B.L.’s first name and containing the expression, "what goes around comes around." B.N. perceived the video as a "threat that he was going to come hurt [her] and [her] family."
B.N.’s mother also spoke at the extension hearing and said that B.N. was "in fear being at home alone or being at work or at school that this man is going to show up and try to be part of her life, where really he has no right to any part of her life. He gave her up at four."
B.N.’s mother, without objection, received permission from the judge to speak on behalf of B.N. Although the mother was not sworn as a witness, this issue was not raised by the parties at the hearing. We do not rely on these statements. Compare Commonwealth v. Stewart, 454 Mass. 527, 531 (2009) ; Mass. G. Evid. § 603 (2021).
B.L. denied that he had insulted B.N.’s family. He denied the allegations of his substance abuse and domestic abuse, which he maintained were based on false accusations from a former girlfriend of his. B.L. described the video, which he offered to play for the judge, as being about "paying it forward and how kind people can be."
We review for abuse of discretion, see Crenshaw v. Macklin, 430 Mass. 633, 636 (2000), asking whether the judge "made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See Dollan v. Dollan, 55 Mass. App. Ct. 905, 905-906 (2002).
The plaintiff bears the burden of establishing, by a preponderance of the evidence, "facts justifying the issuance and continuance of an abuse prevention order." Frizado v. Frizado, 420 Mass. 592, 596 (1995). See Iamele v. Asselin, 444 Mass. 734, 736 (2005). "[A] plaintiff seeking an extension of a protective order must make a showing similar to that of a plaintiff seeking an initial order -- most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief, whether in the form of an original order or an extension of an order, is sought." Iamele, supra at 734-735. See G. L. c. 209A, § 1 (b ). "In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006), quoting Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). The victim's "fear or apprehension caused by the defendant's words or conduct must be more than subjective and unspecified; viewed objectively, ... the plaintiff's apprehension that force may be used [must] be reasonable" (quotation and citation omitted). Ginsberg, supra.
To demonstrate a reasonable fear of imminent serious physical harm, a plaintiff need not allege "a history -- or even a specific incident of physical violence." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020). But "[g]eneralized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). The judge "must consider carefully whether serious physical harm is imminent and should not issue a G. L. c. 209A order simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience." Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995). See Larkin v. Ayer Div. of the Dist. Court Dep't, 425 Mass. 1020, 1020 (1997).
The record before us does not support a finding that B.N. was reasonably in fear of imminent serious physical harm. It contains no threats or history of violence between B.L. and B.N., and the allegations about B.N.’s substance abuse and abuse of a former partner do not, without more, presage abusive behavior toward B.L. Although unwelcome, on these facts, B.L.’s persistent and unsolicited messaging, and his sending the video, do not rise to the level of abuse. See Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002) (" ‘placing another in fear of imminent serious physical injury[ ]’ closely approximates the common-law description of the crime of assault" [citation omitted]). The judge's findings -- that B.L. "probably" had "good intentions" to reconnect with B.N., but that "she [did] not want the contact," -- do not speak to a reasonable fear of imminent physical harm.
Although there is evidence that the persistent messaging and video were unwelcomed by B.N., we cannot say that her resulting fear was objectively reasonable in light of the specific attendant circumstances and B.L.’s actions and words in this case. Contrast Ginsberg, 67 Mass. App. Ct. at 143-147 (husband's increasingly out-of-control anger and rage, resulting in incident of verbal abuse deemed sufficient to justify ex-wife's reasonable fear of imminent serious physical harm).
Although the defendant appears to seek review of the ex parte order, he conceded at oral argument that only the extension order is the subject of his appeal; thus, we consider only that order.
For these reasons, the extension order issued on July 31, 2020, is vacated.
So ordered.
Vacated