Opinion
20-P-500
05-14-2021
R.T. v. C.T.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the trial court's order denying his motion for rehearing or to vacate an abuse prevention order, G. L. c. 209A, § 3, requiring him to refrain from abuse of the plaintiff, R.T., stay away from and have no contact with her, and stay away from her home and workplace. We affirm.
Background. The plaintiff's affidavit and testimony at the hearing, which the judge credited, set forth as follows. The defendant is the plaintiff's older brother, and physically and sexually abused her when she was six to thirteen years old. Beginning when the plaintiff was approximately eight years old, the defendant also forced her to watch pornography with him, and subsequently made her reenact the positions, telling her he would "teach[ ] [her] how to please a boy right." That sexual abuse continued until the plaintiff was eleven years old. At some point, the plaintiff moved out of her parents' home and avoided attending any family events where the defendant might be present, to protect herself from any further harm.
The plaintiff was eighteen at the time of the hearing. She testified that the last act of abuse was in late 2013 or 2014.
By mid-2019, the defendant was living in Georgia, but returned to Massachusetts for family events. On one such occasion in early 2019, the defendant, along with other extended family members, went to a restaurant where the plaintiff was working. The defendant stared at her and she was terrified. This encounter caused the plaintiff to have a panic attack, and as a result, her boss reassigned her to work in another area of the restaurant. After that, the defendant repeatedly telephoned the plaintiff, and tried to contact her through other family members and various forms of social media. The plaintiff testified that, as a result of the physical, emotional, and sexual abuse and the defendant's recent efforts to contact her, she continued to be in fear of the defendant.
Discussion. 1. Sufficiency of the evidence. The defendant argues this court should vacate the abuse prevention order because the plaintiff failed to establish that she was reasonably in fear of imminent serious physical harm. As an initial matter, we note that the defendant has failed to provide this court with a copy of the motion to vacate or a transcript of the hearing on it.
As appellant, it was the defendant's obligation to provide the court with those documents. See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). We note that the plaintiff has provided the court with copies of her complaint for protection from abuse, the transcript of the hearing on it, the abuse prevention order, and the judge's ruling on the defendant's motion for rehearing or to vacate the order.
Based on the record before us, we conclude there was sufficient evidence for the abuse prevention order to issue. Under G. L. c. 209A, § 3, a person "suffering from abuse" by a "family or household member" may request the court to issue an abuse prevention order. The statute defines "abuse" as "the occurrence of one or more of the following acts between family or household members: (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.
Under § 1 (a ) and (c ), a plaintiff is not required to prove a reasonable fear of imminent future physical abuse. Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-187 (2020), citing McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-734 (2016). "Rather, when a plaintiff has suffered physical [or sexual] abuse, a judge may reasonably conclude that a c. 209A order is necessary ‘because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.’ " Yahna Y., supra at 187, quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).
Here, the evidence supported the judge's finding that "the defendant had previously and repeatedly sexually assaulted the plaintiff, which misconduct constituted abuse and physical acts of violence to the plaintiff." The judge credited the plaintiff's uncontested affidavit and testimony that when she was a prepubescent child, the defendant repeatedly forced her to watch pornography and act out the positions. About two months before the August 7, 2019 hearing on the abuse prevention order, the defendant came with their grandparents and cousin for a meal at the restaurant where the plaintiff was working and stared at her, after which he repeatedly contacted her by telephone and social media. The judge also found that the plaintiff was "clearly still affected by the defendant's prior sexual misconduct," noting that she "appeared upset, distraught [and] fearful" during the hearing. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020) ("We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference" [citation omitted]). Based on these findings,
Contrary to the defendant's argument, the judge properly "dr[e]w an inference based on the fact that the grandparents knew that [the plaintiff] worked there, that [the defendant] also knew that she would be there and that he sought to have face-to-face contact with her."
The defendant argues in his reply brief that the plaintiff did not "dedicate even one word of her testimony" to the past acts of sexual abuse and "offered absolutely no evidence whatsoever to support" the judge's finding. On the contrary, the plaintiff testified that the allegations recounted in her affidavit were true and accurate; it described how the defendant "physical[ly] abuse[d]" and "sexually assault[ed]" her.
"[t]he judge could reasonably conclude that the damage from the defendant's past sexual [and physical] abuse still affected the plaintiff and that an order was necessary to protect her from the impact of that abuse, even if the evidence did not show that another sexual assault or other physical harm was imminent."
Yahna Y., 97 Mass. App. Ct. at 187.
Although the judge's finding of previous physical and sexual abuse, combined with the necessity of an order to protect the plaintiff from the current effects of that abuse, would have been sufficient grounds for issuance of the order, the judge also found that the "totality of the circumstances, including the defendant's acts of sexual abuse plus his recent actions in going to the plaintiff's workplace[,] reasonably put the plaintiff in fear of imminent serious physical harm." In determining whether the plaintiff has established abuse under G. L. c. 209A, § 1 (b ), the judge must decide whether the plaintiff's fear of imminent serious physical harm is objectively reasonable. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005). "The inquiry is particularized and situation dependent, calling upon the judge to examine the words and conduct ‘in the context of the entire history of the parties' hostile relationship.’ " Id. at 487, quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999).
For the first time in his reply brief, the defendant argues that the sexual assaults described in the plaintiff's affidavit do not meet the definition of abuse under G. L. c. 209A, § 1, defined as conduct including "causing another to engage involuntarily in sexual relations by force, threat or duress." We need not reach the issue, because the defendant raised it for the first time in his reply brief. See Commonwealth v. Bacigalupo, 49 Mass. App. Ct. 629, 632 n.2 (2000) ("Ordinarily, we are not required to decide an issue raised in a reply brief").
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"Indeed, the nature and duration of a relationship, as well as any prior history of violence, threats, or hostility within it, serve as the necessary backdrop for reaching a proper understanding of more recent words and behavior as well as for assessing the reasonableness of an applicant's fear of imminent serious physical harm."
Vittone, supra.
Here, evaluating the totality of the circumstances including the defendant's prior physical and sexual abuse of the plaintiff from when she was six to thirteen years old, as well as his recent appearance at her workplace and attempts to contact her, the judge had a reasonable basis to conclude that the plaintiff was reasonably in fear of imminent serious physical harm. See Vittone, 64 Mass. App. Ct. at 489 ("The infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim's fear of the perpetrator"). Accordingly, we discern no abuse of discretion.
2. Surrender of firearms. In the defendant's brief he asks this court to vacate the portion of the order requiring him to surrender his firearms because the trial court did not have personal jurisdiction over him. However, as noted above, the defendant did not include his motion to vacate or a transcript of the hearing in the record as required by rule 18 of the Rules of Appellate Procedure. Further, the defendant waived the issue in his reply brief and at oral argument. For these reasons, we need not reach the issue.
3. Request to remand. The defendant is not entitled to a new hearing at which he would be allowed to testify and call additional witnesses. "Due process requires that the defendant be given the opportunity to testify and present evidence." C.O. v. M.M., 442 Mass. 648, 656 (2004). We agree with the trial court judge that "[t]he defendant had a full and fair opportunity to contest the issuance of the order of protection at the original hearing date. The defendant elected, through counsel, to waive his presence and his right to testify at the hearing." Further, the trial court judge specifically asked defendant's counsel if she had any evidence to present; she replied that she did not. Therefore, after careful consideration, we conclude the trial court judge did not abuse his discretion in denying the defendant's motion for rehearing or to vacate the order.
Order dated September 27, 2019, denying motion for rehearing or to vacate abuse prevention order affirmed.