Opinion
No. 12–P–295.
2012-11-20
Barbara JEFFERY v. Daniel JEFFERY.
By the Court (GRASSO, FECTEAU & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant Daniel Jeffery (husband) appeals from the extension of an abuse prevention order issued pursuant to G.L. c. 209A, § 3, at the request of Barbara Jeffery (wife).
The husband contends that (1) the wife failed to show by a preponderance of the evidence a need for the extension, and (2) the hearing judge thereby abused his discretion in granting the extension. More specifically, the husband avers that the wife has not alleged, either by affidavit or by testimony, that she continues to suffer from abuse or a threat of abuse. As there is a sufficient basis to conclude that the wife's fear of imminent serious physical harm continues to be objectively reasonable, we affirm. “[A]t a renewal hearing, a judge's discretion is broad....” Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). “The only criterion for extending the original order is a showing of continued need for the order.” Doe v. Keller, 57 Mass.App.Ct. 776, 778 (2003), quoting from Pike v. Maguire, 47 Mass.App.Ct. 929, 929 (1999). Accordingly, at the time an extension is sought, the plaintiff must, by a preponderance of the evidence, establish facts warranting a judicial determination “that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G.L. c. 209A, § 1.”
The protective order entered ex parte on April 12, 2011. Following a hearing on April 26, 2011, the order was extended until October 26, 2011. Following a hearing on October 26, 2011, the order was again extended until April 18, 2012. It is the October 26, 2011, extension from which the husband appeals. The husband, however, also purports to challenge the initial issuance of the order. “Assuming that such a separate challenge may be maintained, ... we need not address the issue because the defendant did not file a notice of appeal with respect to the ex parte order.” Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 2 (2006).
Iamele v. Asselin, 444 Mass. 734, 739 (2005).
As here relevant, “abuse” is defined as “placing another in fear of imminent serious physical harm.” G.L. c. 209A, § 1, as appearing in St.1990, c. 403, § 2.
Where, viewed objectively, “the plaintiff's apprehension that force may be used is reasonable,” the defendant's actions constitute “abuse.” Carroll v. Kartell, 56 Mass.App.Ct. 83, 87 (2002). The husband asserts that the wife failed to demonstrate objectively reasonable fear capable of justifying the order's extension by simply maintaining that “she felt strongly that her husband was not stable and his behavior was not predictable.”
Although the judge made no formal oral or written findings, we discern an evidentiary basis sufficient for the order's extension beyond that advanced by the husband, unlike in Banna v. Banna, 78 Mass.App.Ct. 34, 36 (2010). See Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140, 143 (2006).
The wife, although present, did not testify at the October 26, 2011, hearing. Instead, the hearing proceeded on counsel's respective representations, as well as on the wife's affidavit, the husband's live testimony, and the husband's psychiatric hospital records. To the extent that the husband suggests that representations by the wife's counsel must be excluded from the judge's consideration, we disagree. See Vittone v. Clairmont, 64 Mass.App.Ct. 479, 480, 481 n. 4 (2005) (affirming the extension of the abuse prevention order, this court rejected the defendant's claim that the only evidence properly before the judge consisted of the plaintiff's brief testimony, the plaintiff's affidavit, and evidence of the defendant's criminal convictions, reasoning that defense counsel raised no procedural objections below nor sought to cross-examine the plaintiff). Similarly here, during the course of the October 26, 2011, hearing, the husband's counsel did not object to proceeding on the representations of the wife's counsel and opted not to cross-examine the wife on her affidavit. As in Vittone, both parties here were afforded a meaningful opportunity to challenge the presented evidence, thereby entitling the judge to credit the representations of the wife's counsel.
“It is the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order, that govern.” Iamele, supra at 741. Considering the context of the initial order, the hearing judge credited evidence that the husband threatened the wife with physical harm, explicitly referencing the husband's own acknowledgement of the wife's fear therefrom.
Ginsberg, supra at 140 n. 3 (judge's questions and her ultimate decision make clear that she credited plaintiff's version of the evidence).
The wife's affidavit in support of the initial order provided: “[Husband] is continuously calling me. Has said ‘If you go through with this it will be the saddest thing you ever saw.’ “
At the October 26, 2011, extension hearing, the husband's counsel provided an alternative interpretation of the statement which the judge discredited as “totally counter” to what the wife wrote in her affidavit and that this discrepancy was “of grave concern” to the court. In contemplation of the husband's assertions during the hearing on April 26, 2011, the judge concluded “I mean, he's acknowledging that she was fearful at that point.”
Together with the basis for the initial order, a defendant's violations of the order and ongoing litigation likely to engender hostility, inter alia, bear on the judge's evaluation of a risk of future abuse. Iamele, supra at 740. In spite of orders to the husband to not contact the wife and to stay at least 100 yards away from her, evidence showed that, following the issuance of the April 26, 2011, order, the husband placed numerous telephone calls to the wife and on three identified occasions parked his car near the marital home albeit outside the established 100–yard parameter.
See Commonwealth v. Silva, 431 Mass. 194, 198 n. 3 (2000) (“[R]epetitive hang-up telephone calls might provide a ground for extending the order”), citing Pike v. Maguire, 47 Mass.App.Ct. 929 (1999). Moreover, the husband's psychiatric hospital records solely identify “possible separation from wife” as a stressor, which triggers in the husband suicidal thoughts. See Smith v. Joyce, 421 Mass. 520, 522–523 (1995) (extension justified in part by evidence establishing “a basis for concluding that the defendant's anger against the plaintiff might reignite”).
Through testimony, the husband admitted to violating the order's no contact provision: “And I called her.... And, you know, she won't pick up the phone, which I understand that because I'm not supposed to call.” Moreover, the hearing judge deemed disconcerting the husband's parking at the end of the street while the order was in place.
The judge was entitled to credit the wife's affidavit and counsel's representations, which on the whole establish a record of the husband's violations of the order both in fact and in spirit, particularly in light of the parties' pending divorce proceedings and against the backdrop of the husband's past threat of physical harm and psychological instability. See, e.g., Commonwealth v. Gordon, 407 Mass. 340, 350 (1990), and Commonwealth v. Robicheau, 421 Mass. 176, 181–182 (1995). As such, the totality of the circumstances confirm the wife's objective fear of imminent serious physical harm, justifying the extension of the order in this instance.
Abuse prevention order dated October 26, 2011, affirmed.