Opinion
No. 12–P–839.
2013-06-28
Colleen MULCAHY v. James MULCAHY.
Upon the expiration of the ex parte order, the plaintiff sought to extend it. Both parties were present and represented by counsel at the hearing on the plaintiff's request for extension. In addition to testifying generally in support of the details contained in her affidavit, the plaintiff testified that the defendant often forced her to have sex and that she was in fear of the defendant throughout the time she lived with him. 1 The plaintiff further testified that she was in an address confidentiality program because, as the plaintiff put it, “I don't want him to know where I live ... [b]ecause I'm scared to death of him.” The plaintiff had also sought support from a battered women's counseling center and was seeing a therapist at the time of the hearing. For his part, the defendant admitted to having an anger management problem and claimed that he had received anger management counseling. At the conclusion of the hearing, a District Court judge extended the order for one year to March 8, 2013. 2
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James Mulcahy, appeals from a decision of a judge of the District Court allowing the plaintiff's request to extend a domestic abuse prevention order previously entered against him pursuant to G.L. c. 209A. His principal argument is that the plaintiff failed to meet her burden of establishing that she had a reasonable fear of imminent serious physical harm at the time the order was extended. We affirm.
Background. The parties were married in the fall of 2006 and separated four years later when the plaintiff left the marital premises. Thereafter, the plaintiff maintained her own residence, the address of which she kept secret from the defendant for many months. On February 23, 2012, during divorce proceedings (after failed mediation), the plaintiff obtained an ex parte abuse prevention order under G.L. c. 209A against the defendant. In her supporting affidavit, she averred:
“On or about Feb. 15, 2012, the Defendant called me & was bullying me into what settlement offer to cho[o]se to move forward in our mediated divorce. Jim said that if I chose the money, he would be pissed & take that as me just being out to screw him. He said I would be ‘done’ and I would be his enemy for life and ‘you know how I treat my enemies.’ Jim has a long history of erratic, violent, unpredictable behavior. Throughout our marriage he would fly into violent rages where he would throw things around the house and threaten to destroy my most cherished belongings. I feared for my safety on a regular basis. He would often tell me that he understood how a husband could kill his wife. He said, ‘She does something to piss you off, in the heat of the moment—bam! You kill her.’ Jim has guns and would leave them around the house when angry & he would shoot squirrels in the yard. He grabbed me with excessive force on a few occasions during our marriage. Jim often forced me to have sex with him or would yell & threaten to kick me out of the house if I did not. I left him for good in August 2012. He was furious that I would not respond to his calls or emails & that he did not know where I was living or working. He called my family & a friend & told them that he was afraid I hurt myself (suicide) in order to get them to give him info on where I was. My friend told me he was extremely angry, enraged to a point where his speech pattern was excessively fast and he did not seem concerned for me at all like he said in his voicemail. She told me she was afraid for my physical safety.”
Upon the expiration of the ex parte order, the plaintiff sought to extend it. Both parties were present and represented by counsel at the hearing on the plaintiff's request for extension. In addition to testifying generally in support of the details contained in her affidavit, the plaintiff testified that the defendant often forced her to have sex and that she was in fear of the defendant throughout the time she lived with him.
The plaintiff further testified that she was in an address confidentiality program because, as the plaintiff put it, “I don't want him to know where I live ... [b]ecause I'm scared to death of him.” The plaintiff had also sought support from a battered women's counseling center and was seeing a therapist at the time of the hearing. For his part, the defendant admitted to having an anger management problem and claimed that he had received anger management counseling. At the conclusion of the hearing, a District Court judge extended the order for one year to March 8, 2013.
The plaintiff stated: “When I was married to him, when I was sleeping next to him every night, I was still in fear of him. Every single day I was married to him—well, with the exception of maybe the first five months—I was in fear of him. I was in fear of his out-of-control rages and violent temper.”
The parties dispute whether a “contract” in which the defendant proposed that the plaintiff agree to submit to having sexual relations with him on a predetermined schedule, is a proper matter for inclusion in the plaintiff's proffered supplemental appendix. The document was shown to the judge, who considered it without objection, but was not expressly made an exhibit. We need not resolve this issue given our conclusion that the evidence abundantly demonstrates that the plaintiff's continued fear of imminent serious physical harm was reasonable.
Discussion. We review the issuance (and extension) of a G.L. c. 209A restraining order for an abuse of discretion. Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). In doing so, “[w]e 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 from Pike v. Maguire, 47 Mass.App.Ct. 929, 929 (1999).
In order to obtain an extension of an initial 209A order, a plaintiff must demonstrate that she continues to suffer abuse, as defined in G.L. c. 209A, § 1.
See Iamele v. Asselin, 444 Mass. 734, 739 (2005). “In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship.” Id. at 740. “A determination whether harm is imminent ... may involve an inquiry whether the defendant has engaged in abusive behavior in the past, and whether such behavior is likely to resume.” Smith v. Jones, 67 Mass.App.Ct. 129, 133 (2006).
The statute defines abuse as follows: “(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G.L. c. 209A, § 1, as amended by St.1990, c. 403, § 2.
The defendant maintains that the plaintiff possesses only a generalized apprehension of fear and not a current reasonable fear of “imminent serious physical harm” as required by the statute. We disagree. Our cases hold that the “egregious nature” of past abuse merits consideration in “any assessment of the reasonableness of the plaintiff's fear of imminent serious physical harm,” and that “[t]he infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim's fear of the perpetrator.” Vittone v. Clairmont, 64 Mass.App.Ct. 479, 488–489 (2005). In this case, the record discloses numerous instances of the defendant's sexual and verbal abuse, which, in turn, led the plaintiff to fear for her safety on a regular basis. Given this history, the risk of future abuse should the existing order expire was high. We therefore conclude that the judge acted well within her discretion and, accordingly, we affirm the extension of the abuse prevention order.
So ordered.