MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from the extension of an abuse prevention order issued against him by a District Court judge pursuant to G. L. c. 209A. We affirm.

The plaintiff was initially granted an abuse prevention order against the defendant on September 16, 2013, that was subsequently extended two times until September 30, 2015. The defendant failed to appear, after notice, at the extension hearings. The order finally expired on September 30, 2015. On June 8, 2016, the plaintiff again filed for an abuse prevention order, which was granted following an ex parte hearing and then extended for one year on June 22, 2016, following a two-party hearing at which the defendant appeared. The extension of the 2016 abuse prevention order is the sole subject on appeal.

The original abuse prevention order was issued after a brief dating relationship between the two parties. It was based on the plaintiff's sworn affidavit, which stated that the defendant had harassed her since the end of their relationship, threatened "the wrath of god" on her if she would not continue to date him, attempted to extort her, and threatened that he would spread personal information about her to her children's school, her therapist, and her ex-husband. The defendant subsequently violated the order two times on the same day in November, 2013, after sitting next to and addressing the plaintiff in a bar and later calling her and asking her not to report the contact to the police. The parties have had no interaction since.

In June, 2016, within a year of allowing the order to expire, the plaintiff received an electronic mail message (email) from an e-mail address that matched the defendant's name. The body of the e-mail read only "hi paula," followed by a hyperlink. After receiving this e-mail, the plaintiff sought a new abuse prevention order, and, after an ex parte hearing, it issued. In her affidavit filed with this abuse prevention order request, the plaintiff stated that she feared for her life "since [the] defendant has in the past told [her] that he was going to kill [her] and feed [her] to the pigs."

A two-party hearing was held, during which the plaintiff detailed the reasons for her fear of the defendant including, but not limited to, the fact that he violated her previous abuse prevention order four times in five days. Further, she testified that the defendant had been convicted of violating her previous order and as a result was required to attend the "Emerge" program designed for batterers, and has violated another restraining order that was issued on behalf of a different victim in New York after the defendant's conviction in Massachusetts. At the hearing, the defendant denied sending the e-mail, spoke five times out of turn (four after the judge advised him that he was to speak only through his counsel), and claimed to be living in Maine despite maintaining his residence in Medford. Additionally, he had a specific memory as to the exact date of his previous violation with regard to this plaintiff and, as to the alleged June, 2016, e-mail contact, asserted that the plaintiff created the e-mail herself so as to have contact with the defendant. The order was extended for one year until June 22, 2017.

In support of his decision to extend the abuse prevention order, the judge noted that he found "the plaintiff has made her burden, finds her testimony to be credible, that she is presently in fear of the individual, that she was a victim of a violation of a restraining order out of the Woburn District Court, and she's still in fear of this gentleman." He further found "the plaintiff's testimony in court ... to be credible" and found the defendant's "testimony to be not credible." When pressed by the defendant's attorney as to whether his "basis for finding that [the plaintiff is] in imminent danger" was "based on that email," the judge stated that it was not.

On review of an extension of an abuse prevention order, "we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." C.O. v. M.M., 442 Mass. 648, 655 (2004) (quotation omitted). Under G. L. c. 209A(1), as appearing in St. 1990, c. 403, § 2, abuse is defined in one of three ways: "(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." The complainant bears the burden to establish facts that justify the issuance of an abuse prevention order. Iamele v. Asselin, 444 Mass. 734, 736 (2005). When considering an allegation of abuse under G. L. c. 209A(1)(b ), the judge must determine "whether a plaintiff has a reasonable fear of ‘imminent serious physical harm.’ " Id. at 739-740. The plaintiff must further "show that he or she is currently in fear." Id. at 737.

A judge must consider the totality of the circumstances when evaluating the relationship between the parties and whether the plaintiff has met her burden. At an extension hearing, the inquiry is whether the plaintiff has shown by a preponderance of the evidence that it is necessary for the extension to be issued in order to protect her from a likelihood of abuse. Id. at 739. "The judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire. This does not mean that the restrained party may challenge the evidence underlying the initial order.... Other factors that the judge should consider include, but are not limited to: the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties' demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities (e.g., residential or workplace proximity, attendance at the same place of worship), and significant changes in the circumstances of the parties. No one factor is likely to be determinative.... 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." Id. at 740-741.

Having taken into account the considerations detailed in Iamele, supra, we discern no error in the judge's decision to extend the plaintiff's abuse prevention order against the defendant. The judge had the opportunity to observe the parties during the two-party hearing, and thus was entitled to credit the plaintiff's testimony regarding her fear of the defendant while not crediting the defendant's testimony. See Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999). The defendant's past threats to dismember the plaintiff and feed her to the pigs, in our view, are of sufficient extremity to reasonably produce long-lasting fear. The defendant had been found guilty in 2013 of violating a previous abuse prevention order issued to protect the plaintiff, and the plaintiff asserts that the defendant was also found guilty of such a violation in New York with a different victim. The above discussion, coupled with the lack of clarity as to where the defendant lives, the defendant's past violations of restraining orders, and his uncooperative nature during the hearing provided ample support for the judge's implicit finding that the defendant's actions had "created an apprehension of imminent serious physical harm on the part of [the plaintiff] that was objectively reasonable." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006).

Order extending abuse prevention order affirmed.