Opinion
21-P-228
02-09-2022
T.W. v. C.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff appeals from a Boston Municipal Court judge's determination not to extend an ex parte G. L. c. 209A abuse prevention order (209A order) against the defendant. The plaintiff argues that, because she proved by a preponderance of the evidence that she had a reasonable fear of imminent serious physical harm from the defendant, the judge abused her discretion in not extending the order. We affirm.
Background. On September 8, 2020, the plaintiff was granted an ex parte 209A order. A ten-day hearing was scheduled for September 22, 2020. After some delay due to a procedural mix-up, a two-party hearing was held on October 7, 2020.
At that hearing, the plaintiff testified that she and the defendant were formerly engaged and have a two year old daughter together. As of mid-2020, the plaintiff and the defendant were not living together. The plaintiff testified to an incident on July 21, 2020, during which she and the defendant got into an argument while she was out with her neighbor. When the plaintiff returned home, the defendant allegedly grabbed her hand, crushed it in his own, and threw her off her bed. She testified that her adult son tried to intervene, but the defendant threatened the son as well.
The defendant also testified regarding the incident, stating that the plaintiff had started the fight and scratched him. Two pictures of the defendant's injuries were admitted in evidence.
The plaintiff testified that after that incident, the defendant threatened her via text message. On July 27, 2020, he texted her, "I should've knocked your head off lol." On August 3, 2020, he texted her, "I ain't never hit you so stfu with that bs hahaha cause I should've hit you right in you[r] lip make it bubble cause you talk nuff lies lol." These text messages were admitted in evidence.
The defendant testified that by August 2020, the two had tried to reconcile. However, the plaintiff testified that while she was dropping off her daughter at the defendant's house on September 4, 2020, the defendant became angry and yelled, "I can't trust you. I should punch you in your fucking face." The defendant also allegedly clenched his fists and made angry noises.
The plaintiff testified that when she arrived home later that day, the defendant texted her and accused her of cheating on him. The defendant then showed up at her apartment, repeatedly rang the bell to her building, and, once inside the building, banged on her door and yelled to be let in. During his testimony, the defendant admitted that he slashed three of the plaintiff's car's tires as he was leaving her apartment. He testified that he had purchased the tires and had slashed them "to get even with [her]," but that he later texted her to apologize and offer to pay for the tires.
On September 7, 2020, the plaintiff reported the incident to the police, and she obtained the ex parte order the next day. On September 21, 2020, the defendant posted on Facebook, "I avoid BS cuz my temper go from [zero] to life in prison." The plaintiff testified at the October 7 hearing that the post made her fear for her safety.
Discussion. "The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005). "Abuse" is defined as, inter alia, "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1. "When a person seeks to prove abuse by fear of imminent serious physical harm, our cases have required in addition that the fear be reasonable" (quotation and citation omitted). Iamele, supra at 737.
A decision to issue or extend a 209A order is reviewed "for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 562 (2013). "We 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 Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999).
Here, the burden was on the plaintiff to prove that she was in reasonable fear of imminent serious physical harm. To meet this burden, it was necessary that the judge credit the plaintiff's testimony that she was in such fear. During the October 7 hearing, the judge was able to evaluate the parties' demeanor and was in the best position to assess their credibility. See S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019). The judge ruled from the bench that there was "not sufficient evidence to meet the standard that [the plaintiff] is in fear" of imminent abuse. It is thus apparent that the judge did not credit the plaintiff's testimony regarding her fear. See Prenaveau v. Prenaveau, 81 Mass. App. Ct. 479, 496 (2012), quoting Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) ("In a bench trial credibility is ‘quintessentially the domain of the trial judge [so that her] assessment is close to immune from reversal on appeal except on the most compelling of showings.’ "). The plaintiff has given us no reason to reverse the judge's determination here. Of course, as the judge stated, if the plaintiff believes she has experienced additional acts of abuse since the hearing, she is free to seek a new 209A order.
To the extent that the plaintiff sought the extension order based on the defendant's having inflicted abuse in the form of "attempting to cause or causing physical harm," G. L. c. 209A, § 1, we note that the judge was not required to credit the plaintiff's testimony.
Order denying extension of G. L. c. 209A order affirmed.