Opinion
21-P-782
11-07-2022
M.M. v. M.C.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, M.C., appeals a one-year extension of an abuse prevention order issued pursuant to G. L. c. 209A. He contends that the extension was granted in error, where the plaintiff, M.M., repeatedly testified at the extension hearing that she no longer feared the defendant. We agree and therefore vacate the extension order.
Background.
The defendant was arrested on February 21, 2020, and charged with several offenses resulting from an altercation with the plaintiff. The defendant's arraignment took place that same day, at which time a District Court judge granted the plaintiff's request for a restraining order under G. L. c. 209A, finding that "[a]n imminent threat of bodily injury" and a "substantial likelihood of immediate danger of abuse" existed. The order was set to expire on February 19, 2021. Thereafter, the order was twice extended by agreement, until May 28, 2021.
On May 28, 2021, the defendant and the plaintiff appeared for a hearing on whether the restraining order should again be extended. Counsel for both parties informed the judge that they had agreed to extend the order until the date of the defendant's bench trial, about one month away. Rather than accept the parties' agreement, the judge explained that she would typically extend such orders for one year, and proceeded to question the plaintiff about whether she still feared the defendant. During that colloquy, the plaintiff repeatedly testified that she no longer feared the defendant, stating that she was "not afraid of him today." The plaintiff never contradicted these statements, although she did state that she did not "want anything to do" with the defendant. The hearing judge extended the order for one year over defense counsel's objection.
Other relevant exchanges include, but are not limited to:
The court: "So, do you remain in fear of [the defendant]?"
The plaintiff: "No, I do not."
The court: "You're not afraid?"
The plaintiff: "No."
The court: "So, you're telling me today that you're not afraid of him, you just want nothing to do with him. Am I right or no?"
The plaintiff: "Yes."In all, the plaintiff testified seven times that she was not in fear of the defendant.
Discussion.
The defendant argues that the plaintiff did not meet her burden to establish that she reasonably feared imminent harm from the defendant at the time of the hearing. We review for an abuse of discretion or other error of law. Idris I. v. Hazel H., 100 Mass.App.Ct. 784, 787 (2022).
The extension order from which the defendant appeals has expired, thus raising the question whether this appeal is moot. Although no party raises the issue, we have previously said "that abuse prevention orders may carry collateral consequences following their expiration, so the question whether the order validly issued is not moot merely because it is no longer in effect." Allen v. Allen, 89 Mass.App.Ct. 403, 405 (2016). The prior cases, however, do not expressly address the specific scenario before us, where the only order appealed from is the extension of a prior order, such that the original order will remain of record regardless of the defendant's success on appeal. In any event, under the circumstances, we exercise our discretion to address the merits of the defendant's claim. See Styller v. Zoning Board of Appeals of Lynnfield, 487 Mass. 588, 595 (2021) (noting appellate court's "discretion to answer moot questions").
"Whether seeking an initial abuse prevention order under G. L. c. 209A or a later extension, the burden is on the plaintiff to establish facts justifying issuance, or continuance, by a preponderance of the evidence." Callahan v. Callahan, 85 Mass.App.Ct. 369, 372 (2014). The "abuse" for which an order may issue takes three forms: "(a.) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (cO causing another to engage involuntarily in sexual relations by force, threat or duress." G. L. c. 209A, § 1. These "same statutory definition[s] [apply] in the context of . . . extended . . . orders." Vittone v. Clairmont, 64 Mass.App.Ct. 479, 485 (2005). Thus, to obtain an extension, a plaintiff must demonstrate a present "reasonable fear of imminent serious physical harm." Banna v. Banna, 78 Mass.App.Ct. 34, 35-36 (2010), quoting Iamele v. Asselin, 444 Mass. 734, 735 (2005).
There are circumstances in which "the failure of the plaintiff to have an objectively reasonable fear of imminent serious physical harm does not by itself preclude extension." Callahan, 85 Mass.App.Ct. at 374. These include where the order or extension is sought based on a plaintiff "having already been subject to physical harm." Id. However, those seeking orders or extensions "based on 'fear of imminent serious physical harm' must always show that he or she is currently in fear of imminent serious physical harm, and that such fear is reasonable." Id., citing Iamele, 444 Mass. at 737.
Here, the plaintiff was granted the initial order based on "[a]n imminent threat of bodily injury" -- i.e., she had demonstrated that she reasonably feared imminent physical harm. To obtain an extension, the plaintiff was required to show that she continued to reasonably fear imminent physical harm. See Banna, 78 Mass.App.Ct. at 35-36. The plaintiff did not carry that burden -- indeed, she did not even attempt to do so. Despite the judge's repeated questioning, the plaintiff was unwavering in her testimony that she did not fear the defendant. Although the plaintiff did testify that she no longer wanted contact with the defendant, that is not equivalent to a reasonable fear of imminent physical harm. Cf. Banna, supra at 36 ("asking the complainant whether she wanted to extend the order was not enough"). And while the judge also had before her the plaintiff's affidavit in support of the initial order, that affidavit from fifteen months prior did not establish that the defendant had caused plaintiff actual physical harm such that an extension could be warranted in the absence of a fear of imminent harm. See Callahan, 85 Mass.App.Ct. at 369. We therefore vacate the extension order.
As noted, the plaintiff sought only a limited extension until the date of the defendant's bench trial.
So ordered.
Green, C.J., Henry & Englander, JJ.
The panelists are listed in order of seniority.