Opinion
16-P-955
03-06-2017
B.T. v. M.T.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, M.T., appeals from the issuance of a G. L. c. 209A order (209A order) against him. We vacate the 209A order.
Background . The plaintiff is the adult daughter of the defendant. On April 13, 2016, she filed a complaint for a 209A order, which was issued on an ex parte basis. The case was continued to April 26, 2016, at which time the plaintiff appeared pro se. The defendant appeared with counsel. After a hearing, a judge of the District Court extended the 209A order for one year. This appeal followed.
The plaintiff's affidavit filed in support of her initial complaint described an incident that occurred on June 13, 2011. The plaintiff contended that the defendant threw a picture at her from across the room, which flew over her head and left a dent in the kitchen table. The plaintiff also indicated that the defendant smashed a telephone to prevent the plaintiff's mother from calling the police. Ultimately, this series of events resulted in the issuance of a 209A order (2011 order) between the plaintiff's mother and the defendant. The 2011 order also precluded the defendant from having any contact with his children, including the plaintiff in this action as she was a minor at that time. The 2011 order was amended thereafter, to allow supervised visitation between the defendant and the children. After a couple of visits, the plaintiff ceased all contact with the defendant. She has not seen or heard from him since 2012. On April 12, 2016, the defendant's girl friend telephoned the plaintiff at her place of employment and asked if the defendant could see the plaintiff for her twenty-first birthday. As a result of this telephone call, the plaintiff applied for and obtained the 209A order.
Discussion . The defendant claims that the judge erred by issuing the 209A order because the evidence failed to show a substantial likelihood of immediate danger of abuse. In deciding whether to issue a 209A order, "[a] judge must consider carefully whether serious physical harm is imminent." Smith v. Joyce , 421 Mass. 520, 523 n.1 (1995). "Generalized apprehension, nervousness, feeling aggravated or hassled ..., 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), quoting from Larkin v. Ayer Div. of the Dist. Ct. Dept ., 425 Mass. 1020 (1997). While the girl friend's telephone call to the plaintiff may have been upsetting to her, it cannot reasonably be said to have placed the plaintiff in fear of imminent serious physical harm as required under G. L. c. 209A. See Carroll v. Kartell , 56 Mass. App. Ct. 83, 86 (2002). Rather, this is a case of "[g]eneralized apprehension ... [that] does not rise to the level of fear of imminent serious physical harm." Szymkowski v. Szymkowski , 57 Mass. App. Ct. 284, 287 (2003).
The issuance of this 209A order on allegations of past abuse alone, without a fear of imminent serious physical harm, was error. See Jones v. Gallagher , 54 Mass. App. Ct. 883, 890 (2002). We conclude that there was no evidentiary basis on which to have issued the 209A order.
Conclusion . The April 26, 2016, order issued pursuant to G. L. c. 209A is vacated. The District Court judge shall cause a direction to be sent, conformably with the provisions of G. L. c. 209A, § 7, third par., for the destruction of all records of the vacated order.
So ordered .
Vacated and remanded.