Opinion
21-P-28
12-21-2021
D.C. v. P.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an abuse prevention order issued pursuant to G. L. c. 209A, § 3 (209A order). He claims that the judge abused her discretion because the evidence did not establish that the plaintiff had an objectively reasonable fear of imminent serious physical harm from the defendant. We affirm.
Background. We summarize the factual background. The parties were divorced in February of 2020. Under the parenting plan pursuant to the judgment of divorce, the parties shared physical custody of the children with plaintiff having custody seventy percent of the time. During the summer of 2020, the plaintiff complained of the defendant's harassing behavior. Specifically, the defendant approached the plaintiff at their children's sporting events, walked by her, stood behind her, and pointed his cell phone in her direction, all of which frightened the plaintiff. As the plaintiff and the children were leaving one of the son's baseball games, the defendant slowly passed by them in his car, "glaring" at the plaintiff. On one occasion, after noticing that the plaintiff had changed the locks at her home, the defendant said, "Whoever changed them did a bad job," which the plaintiff interpreted as a threat. In August 2020, the defendant appeared outside the plaintiff's house unexpectedly.
On August 28, 2020, the plaintiff applied for an emergency ex parte 209A order. In her affidavit in support of the application, the plaintiff asserted that she feared imminent harm from the defendant because he had previously (1) kicked a chair out from under her in front of the children, (2) pushed her, and (3) damaged her car by hitting it with his car door. After an evidentiary hearing conducted telephonically later that day, the judge issued an emergency 209A order, prohibiting the defendant from contacting the plaintiff by telephone "either directly or through someone else." The defendant was also ordered to stay away from "the property of the plaintiff's home, but [wa]s permitted to pick up children by remaining on the street in front of the property and ... [dropping] the children off when they return to the plaintiff's home."
On September 11, 2020, the parties appeared before a different judge for a hearing on whether to continue or modify the order. An evidentiary hearing was conducted by Zoom video conference. The plaintiff testified to her fear of the defendant based on his past physical abuse and harassing behavior. Among other things, the plaintiff testified that the defendant "threw [her] against the wall and knocked [her] over [the] sofa." The defendant testified and denied any abusive or harassing behavior. At the conclusion of the hearing, the judge credited the plaintiff's testimony and continued the 209A order for one year.
Discussion. A plaintiff who seeks a restraining order under G. L. c. 209A, whether the initial, ex parte order, or its extension, carries the burden of proving by a preponderance of the evidence that she is suffering from abuse. See Frizado v. Frizado, 420 Mass. 592, 596 (1995). "Abuse" is defined as, inter alia, "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1. "When a person seeks to prove abuse by fear of imminent serious physical harm, our cases have required in addition that the fear be reasonable" (quotation and citation omitted). Iamele v. Asselin, 444 Mass. 734, 737 (2005).
" ‘We review ... for an abuse of discretion or other error of law.’ E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). ‘We accord the credibility determinations of the judge who "heard the testimony of the parties ... [and] observed their demeanor" ... the utmost deference.’ Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999)." Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 185 (2020).
Here, the plaintiff testified to physical abuse by the defendant and stated she was in imminent fear of further harm because the defendant's stalking behavior "appeared to be escalating." The plaintiff testified that she was "very scared about going forward ... Like there's just no way I can protect myself and -- if I have to be near him." The judge was able to evaluate the parties’ demeanor during direct and cross-examination and was in the best position to assess their credibility. See S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019). We see no abuse of discretion in her decision to credit the plaintiff's testimony.
The defendant asks that we vacate the 209A order because the judge's questions demonstrated bias in favor of the plaintiff. Because this issue is raised for the first time on appeal, it is not properly before us. See Demoulas v. Demoulas Super Mkts., Inc., 428 Mass. 543, 547 (1998) (claim of judicial misconduct cannot be raised for first time in posttrial proceedings absent showing of good cause). But even were we to reach the merits of the issue, the defendant would fare no better. We have carefully reviewed the record and do not agree with the defendant's contention that the judge appeared "to lack impartiality and showed bias" in her questioning of the plaintiff. The Legislature intended for proceedings under G. L. c. 209A, to be informal, see Zullo v. Goguen, 423 Mass. 679, 681 (1996), and the plaintiff appeared pro se. We see nothing improper in the judge asking questions probing the plaintiff's testimony regarding the defendant's physical abuse and the plaintiff's fear. Nothing in the record suggests that these questions were intended to "coach" the plaintiff as the defendant suggests. Rather, the record indicates that the judge, as fact finder, asked questions designed to elicit testimony regarding the basis for the plaintiff's fear of the defendant. We see nothing improper in those questions.
Abuse prevention order dated September 11, 2020, affirmed.