Opinion
21-P-65
12-02-2021
R.G. v. J.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, R.G., applied for an abuse prevention order against the defendant, J.S., pursuant to G. L. c. 209A, § 3 ; an ex parte hearing was conducted telephonically on May 17, 2020, and an order issued the same day. Both parties were present on June 1, 2020 at a telephonic hearing to extend the order. After that hearing, the judge extended the order for six months (extension order). On appeal, J.S. challenges both the issuance of the ex parte order and the extension order. We vacate the extension order, concluding that the evidence was insufficient to find a reasonable fear of imminent serious physical harm. Although J.S. argues that the same infirmity is true of the ex parte order, he has failed to provide an appellate record sufficient for us to review, let alone adopt, his argument. For this reason, we affirm the ex parte order.
The hearings were conducted telephonically due to the ongoing COVID-19 pandemic.
We draw the following recitation of the facts from R.G.'s affidavit (which appears to have been submitted with the application for the initial ex parte order), and the testimony and exhibits from the hearing on the extension order. R.G. and J.S. had been in a dating relationship for roughly two years, until April or May of 2017. Until the communications at issue in this case, they had not communicated after August 2017. After more than two years of silence between them, on March 3, 2020, J.S. sent an unsolicited text message to R.G. This message was precipitated by his discovery of the contents of a cell phone and hard drive belonging to R.G. that had remained in J.S.'s possession after their relationship ended. J.S. was upset to discover sexually explicit content on those devices; he concluded that R.G. had been involved with another man at the same time he and R.G. had been involved.
The appellate record contains no transcript of the hearing on the ex parte order.
J.S. sent hundreds of text messages to R.G. between March and May 2020, referring to the contents of the devices in his possession, threatening R.G. with various civil actions to harm her professional standing in order to force her to communicate with him, threatening to disclose the incriminating contents of the phone to undisclosed third parties, refusing to return the devices until R.G. came to his house to pick them up personally, berating her for having cheated on him, and sending R.G. one of the sexually explicit photographs stored on the devices. The number and frequency of the text messages can fairly be characterized as being a barrage at certain points. J.S.'s text messages contained profanity and were "aggressive," but R.G. acknowledged that the threats they contained were "always ... non-physical in nature." After R.G. could not get J.S. to agree to return the devices to her, or to stop communicating with her, she retained counsel, who sent a letter demanding that the items be returned and that J.S. cease communicating with R.G. J.S. instead responded with approximately 109 text messages, which included a renewal of his threat to file a civil action against R.G. The volume of text messages from the defendant alarmed R.G., and J.S.'s reference to the city and State to which she planned to relocate for work (which she had not told him about), made her concerned that J.S. might come to her residence or place of work. Based on these concerns, R.G. went to the police, who advised her to apply for a c. 209A abuse prevention order, which she did. J.S. violated the ex parte order by having a courier service deliver the cell phone and hard drive to R.G.'s residence.
We review the issuance of an abuse prevention order for abuse of discretion. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). In determining whether the judge abused her discretion, we ask whether the judge "made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
As relevant here, "abuse" under the statute is defined as "placing [the plaintiff] in fear of imminent serious physical harm." G. L. c. 209A, § 1 (b ). "A plaintiff seeking an initial order on the basis of abuse as defined in § 1 (b ) must show that he or she is currently in fear of imminent serious physical harm, as well as that the fear is reasonable" (citation omitted). Iamele v. Asselin, 444 Mass. 734, 737 (2005). "The standard for obtaining an extension of an abuse prevention order is the same as for an initial order -- ‘most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief ... is sought.’ " MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting Iamele, supra at 735. The plaintiff bears the burden of establishing facts showing that the defendant has placed her in reasonable fear of imminent serious physical harm. See Frizado v. Frizado, 420 Mass. 592, 596 (1995). "In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006), quoting Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
In order to support a finding that the plaintiff was in reasonable fear of imminent serious physical harm, "it is not necessary that there be a history -- or even a specific incident of physical violence." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020). However, "[g]eneralized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). The judge "must consider carefully whether serious physical harm is imminent and should not issue a G. L. c. 209A order simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience." Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995).
Here, there was insufficient evidence to support a finding that R.G. was reasonably in fear of imminent serious physical harm. There was no history of violence by J.S. The threats contained in the text messages were, as R.G. acknowledged, always "non-physical in nature," and focused mainly on the possibility that J.S. would try to harm R.G.'s reputation. Threats of contemplated legal action, even when they cause emotional "suffer[ing]" or "aggravation," do not "rise to the level of ‘imminent serious physical harm’ " that is necessary to support the extension of an abuse prevention order (citation omitted). Larkin v. Ayer Div. of the Dist. Court Dep't, 425 Mass. 1020, 1020 (1997).
R.G. testified at the extension hearing that she was "alarmed" J.S. might come to her residence or workplace, and J.S. did in fact violate the ex parte order by returning the cell phone and hard drive via a courier service to R.G.'s home. But the judge credited the explanation offered by J.S.'s counsel that the items had been delivered in this manner on counsel's advice after counsel had been unable to deliver the items to R.G.'s counsel due to the exigencies presented by the COVID-19 pandemic. There was corroborating objective evidence that the items were in fact delivered via a bona fide courier service, not by J.S. himself. In these circumstances, although the delivery of the items caused R.G. to sleep "with a loaded gun next to [her] bed," her fear -- even if understandable -- could not be laid at J.S.'s door since he only followed his counsel's (mis)guided advice about how to comply with R.G.'s demand that the items be returned to her. Cf. Noelle N., 97 Mass. App. Ct. at 665-666 (plaintiff's fear of imminent serious physical harm was reasonable, and abuse prevention order properly issued, where defendant told plaintiff he purchased gun and showed gun to plaintiff and plaintiff's young children).
J.S. also asks us to vacate the ex parte order. However, he has not provided us with a transcript of the ex parte hearing or even the text of the ex parte order. An appellant must "include those parts of the trial transcript ... ‘which are essential for review of the issues raised on appeal.’ " Cameron v. Carelli, 39 Mass. App. Ct. 81, 84 (1995), quoting Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). See Mass. R. A. P. 18 (a) (1) (A) (v) (b), as appearing in 481 Mass. 1638 (2019). We are "free to disregard argument based on transcript not furnished to the court" (citations omitted). Wooldridge, 45 Mass. App. Ct at 639 n.2. Accordingly, we do not disturb the ex parte order.
For these reasons, the extension order issued on June 1, 2020, is vacated, and the ex parte order issued on May 17, 2020, is affirmed.
So ordered.
affirmed in part; vacated in part