Opinion
18-P-902
05-22-2019
C.C. v. M.C.D.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from a District Court judge's extension of an abuse prevention order issued pursuant to G. L. c. 209A. He argues that the evidence did not show that the plaintiff was in reasonable fear of imminent serious physical harm. We affirm the extension of the order.
Background. The parties, unmarried, were parents of a daughter born in 2009. In 2011, the plaintiff sought a c. 209A order after the defendant, while on probation, pushed her during an argument. He had "violently tried to grab" the daughter from the plaintiff, grabbing both the plaintiff's arm and the daughter's arm in the process, and tried to knock a cell phone out of the plaintiff's hand. The plaintiff alleged that the defendant had a "history of anger issues," that he had pushed her out of the way when angry on at least one prior occasion, and that she was "very scared." A judge issued a temporary order, including a provision that gave the plaintiff custody of the daughter. After an April 2011 hearing at which both parties appeared, the order was extended for one year. The no-contact provision of the order was also modified to allow contact in a public place during the exchange of the child between the parties so that the defendant could visit with her. At the April 2012 extension hearing, the order was extended for six months.
At the October 2012 extension hearing, before a second judge, there was evidence that a separate Probate and Family Court proceeding regarding child support and visitation had led to an order that exchanges of the child occur at a police station. The plaintiff stated "that if the restraining order goes away it gives him the right to try something," and that "[h]e has anger issues and I'm just very afraid that something could happen." Also, during the preceding six months, the defendant had come to the court house to pick up some papers, had stormed out of the building and broken a door, and as a result had been tried and found guilty of malicious destruction of property, a felony, and sentenced to fourteen days committed time in a house of correction. The judge expressed concern that this type of crime "gives one pause about anger and control and anti-social behavior." The defendant continued to refer to the "alleged" crime, even after the judge reminded him of his conviction and sentence and asked whether it had not gone "a little beyond alleged." The judge announced that he was extending the order for another six months, at which point the defendant grew agitated, stated that the extension was "absurd," and said, "You're going by the words of a psychotic woman. Jackass." The court officers grew concerned, until the judge calmed the situation.
The defendant asserted that this order had been entered for his protection; the plaintiff later asserted that it was for hers. The judge made no express finding on that issue.
The order was extended for one year at the April 2013 extension hearing and again at extension hearings in 2014 and 2015. At the April 2016 extension hearing (according to the plaintiff's 2018 testimony), the defendant arrived late and then had an outburst when the original hearing judge extended the order for another year. The defendant had to be restrained, and the plaintiff took refuge in the victim witness advocacy room because those on the scene did not feel it was safe for her to come out.
The defendant's version was that court officers had come to talk to him but did not physically restrain him and that when they asked him to leave, he did so promptly.
At the April 2017 extension hearing (again according to the plaintiff's 2018 testimony), during a discussion of the defendant's swearing, the defendant grew defensive and "a little outraged." He made a comment to the judge, who was the same judge that had originally issued the order and had extended it the previous year. The judge advised the defendant that he "probably shouldn't be swearing at" the plaintiff. The judge extended the order for another year.
At the April 2018 extension hearing that led to the order now before us, the plaintiff testified, regarding the weekly child exchanges at police stations in the preceding year, that "when we have a disagreement, he often times stomps off and -- and takes my daughter. It makes me very afraid. . . . [I]f there wasn't an active restraining order, I don't know what he would do." Asked by the judge what made her think the defendant would do anything, the plaintiff testified that during a telephone call in the preceding year, the defendant had become upset about a child exchange issue and swore at her despite the judge's warning of the previous year. The plaintiff also recounted the defendant's prior conduct in court and said, "[I]f [he] can't respect authority, he's not going to respect me. And I'm afraid that if he gets outraged, he's going to do something . . . to hurt me." "I fear for myself. I fear that if this order isn't extended, he's going to show up somewhere and there'll be an incident and I won't be protected, and something will happen."
The defendant also testified, giving versions of prior events that conflicted with the plaintiff's, challenging her credibility, and asserting that there was no evidence that she was currently in fear of imminent harm. He also maintained that what the plaintiff said was now making her fearful -- his removing himself from a tense situation between them -- was what he had been taught to do in his anger management therapy. On cross-examination, the defendant acknowledged that he had previously been convicted of a felony for damaging a door in the court house, but when asked whether he had been sentenced to fourteen days in the house of correction, the defendant refused to answer. The judge extended the order for another year, and this appeal followed.
The defendant's main concern was that the c. 209A order restricted his access to his daughter by preventing him from attending school and sporting events, because the plaintiff might be there as well, and thus his attendance would put him in violation of the order's no-contact provision. In response, the judge indicated his willingness to consider amending the order, if the Probate and Family Court judge had no objection, to allow the defendant to attend such events provided he stayed a certain distance away from the plaintiff. Alternatively, the judge stated that the Probate and Family Court itself might assist in negotiating the matter between the parties. So far as the record before us shows, the defendant has not filed motions in either court aimed at resolving the issue.
Discussion. The defendant asserts that the judge erred or abused his discretion by extending the order, because the plaintiff failed to show by a preponderance of the evidence that (as is required for an extension in these circumstances) she currently had a reasonable fear of imminent serious physical harm. See Iamele v. Asselin, 444 Mass. 734, 739-740 & n.3 (2005). We are unpersuaded.
"In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship." Iamele, 444 Mass. at 740. "Generalized apprehension, nervousness, [or] feeling aggravated or hassled" is insufficient, nor should an order issue "on the theory that it will do no harm, i.e., seems to be a good idea or because it will not cause the defendant any real inconvenience" (quotation omitted). Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). With the passage of time, prior threatening conduct may no longer be sufficient to create a reasonable fear. See Smith v. Jones, 75 Mass. App. Ct. 540, 545-546 (2009) (although defendant's previous stalking of plaintiff justified original order, absence of any contact for two subsequent years meant plaintiff had not shown sufficient basis for permanent extension of order). "No presumption arises from the fact that a prior order has issued; it is the plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief." Smith v. Jones, 67 Mass. App. Ct. 129, 133-134 (2006).
Nevertheless, "making a judgment as to when a previously justified fear ceases to be reasonable can be difficult." Smith, 75 Mass. App. Ct. at 545-546. "The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order . . . ." G. L. c. 209A, § 3. The judge is also to consider, among other things, "the parties' demeanor in court." Iamele, 444 Mass. at 740. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487 (2005). The judge has "wide discretion," Smith, 75 Mass. App. Ct. at 544, and in reviewing the judge's decision, although we review legal questions de novo, "we will not substitute our judgment for that of the trier of fact" (quotation omitted). Iamele, 444 Mass. at 741.
Here, by extending the order, the judge implicitly found that the plaintiff did have a reasonable fear of imminent serious physical harm, and we review that implicit finding for clear error. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 62 (2012). Cf. DeMayo v. Quinn, 87 Mass. App. Ct. 115, 116-117 (2015) (finding that sufficient "harassment" occurred to warrant issuance of G. L. c. 258E order reviewed for clear error).
The defendant notes that the judge made no explicit findings in extending the order. But we have not required specific findings of fact in these cases. See, e.g., Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). "Indeed, where we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required." G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).
On this record, the judge could properly find that the plaintiff was still in reasonable fear of imminent serious physical harm. He appropriately focused not merely on the plaintiff's subjective fears, but on whether there were "objective criteria creating these" fears, whether any of the conduct that the plaintiff had described at past hearings had "happened again," and what exactly it was that "ma[de] [the plaintiff] think [the defendant] would do anything."
We are not persuaded by the defendant's argument that the judge applied an improper standard by telling the defendant that, at the next extension hearing, "hopefully . . . the report will be the exchanges are fine, nobody's demonstrating any anger, that the exchanges are pleasant." The judge properly focused on the reasonableness of the plaintiff's current fear; he was not precluded from suggesting what the defendant could do to help diminish that fear going forward.
The judge was familiar with the parties from numerous prior hearings stretching back seven years. He was also able to observe the parties' court room demeanor -- particularly the defendant's, which the transcript alone makes clear was quite volatile. He could also take into account that the parties would have continuing contact in connection with their weekly child exchanges at police stations. There was continuing tension over visitation, and even in the controlled environment of a police station, during the preceding year, the defendant had grown angry and "stomp[ed] off." Given the defendant's behavior in police stations and in court, the judge could credit as reasonable the plaintiff's fear that "if [he] can't respect authority, he's not going to respect me. And I'm afraid that if he gets outraged, he's going to do something . . . to hurt me."
The defendant's history included incidents of pushing the plaintiff when angry; breaking a court house door when angry (leading to a felony conviction and a sentence of imprisonment, which the defendant refused to acknowledge at the most recent hearing); and, in 2016, becoming sufficiently angry in court that the plaintiff had to take refuge in another room while court officers dealt with the defendant. That these incidents had not occurred during the previous year did not preclude the judge from finding that they reasonably contributed to the plaintiff's fear of imminent serious physical harm.
In light of "the entire history of the parties' relationship," we see no abuse of discretion or other error in the judge's decision to extend the order for one year. C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017), quoting Smith, 75 Mass. App. Ct. at 544.
Order entered April 13, 2018, affirmed.
By the Court (Milkey, Hanlon & Sacks, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 22, 2019.