Opinion
20-P-1123
06-03-2021
A.L. v. E.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In July of 2018, a Framingham District Court judge granted the plaintiff, A.L., an abuse prevention order pursuant to G. L. c. 209A against her husband, E.R. The order was extended for one year in July of 2019, and was subsequently extended a second time for an additional six months in August of 2020. E.R. appealed the latest order, arguing that the grant of yet another extension constituted an abuse of discretion. We affirm.
Discussion. "A plaintiff seeking the extension of an abuse prevention order must prove by a preponderance of the evidence ... that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm" (quotation and citation omitted). G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018). "We review the issuance of [an extension] of a 209A order for an abuse of discretion or other error of law, ... such that the judge's decision falls outside the range of reasonable alternatives" (quotations and citations omitted). Id. E.R. claims that the judge's decision to extend the abuse prevention order for six months in August of 2020, constituted an abuse of discretion. We disagree.
E.R. contends that A.L. failed to demonstrate that she suffered past abuse in the form of actual or attempted physical harm, and as such, the judge's decision to grant the abuse prevention order was an abuse of discretion. We disagree. Past physical abuse in the form of actual or attempted physical harm is not the only form of abuse that meets the requirements of G. L. c. 209A, § 1. It is not necessary for there to be a history, or even a specific incident of physical violence, for a judge to grant an abuse prevention order under G. L. c. 209A. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020). Abuse may be shown in the following three manners: "[1] attempting to cause or causing physical harm, [2] placing another in fear of imminent serious physical harm, [or 3] causing another to engage involuntarily in sexual relations by force, threat or duress." G. L. c. 209A, § 1 (definition of abuse). In the event the 209A order is granted based on fear of imminent serious physical harm, then such fear must, however, be reasonable. See Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).
Here, while E.R. is correct that A.L. has not demonstrated an incident of actual physical violence, this failure is immaterial when determining the validity of the 209A abuse prevention order against him. The extension of the 209A order was granted not for past instances of actual physical harm, but rather due to A.L.’s reasonable fear of imminent serious physical harm. See G. L. c. 209A, § 1. Therefore, the judge did not abuse his discretion.
Nonetheless, E.R. claims that A.L. did not have a reasonable fear of imminent serious physical harm. He claims that mere disagreements over children and finances are not only common for couples amid divorce proceedings, but that they also cannot serve as the basis for an abuse prevention order under G. L. c. 209A. However, based upon the record before us, the judge clearly did not award the extension for mere verbal disputes over children and finances. Instead, the record demonstrates ample testimony for the judge to have properly awarded the order based upon a reasonable fear of imminent serious physical harm.
In particular, A.L. testified that E.R. had become increasingly angry with rage, such that he seemed "out of control." In an incident in early July of 2018, E.R. leaned over A.L. while she was at a table, jabbed a paper at her, and screamed at her about their finances. A.L. testified that she felt immobile, as she could not get away from him in that moment, and that she "had no idea what he was going to do, he was so angry." She also testified that prior to this incident, she felt the need to try to come up with a "safety plan." Given E.R.’s increasingly hostile, out-of-control anger towards A.L., the judge was permitted to conclude that such behavior gave rise to a reasonable fear of imminent serious physical harm. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143-147 (2006) (husband's increasingly out-of-control anger and rage, resulting in incident of verbal abuse deemed sufficient to justify ex-wife's reasonable fear of imminent serious physical harm).
In another incident in August 2017, A.L. testified E.R. became so enraged with having to attend couples counseling, that he began screaming so loud, in the presence of A.L. and the counselor, that spit was coming out of his mouth.
In Ginsberg, the instance of verbal abuse that served as the basis for the 209A order was a husband uncontrollably yelling at his ex-wife, projecting his saliva into her face, and pursuing her throughout the house as she attempted to avoid his presence, similar to the instance of verbal abuse described by A.L. See Ginsberg, 67 Mass. App. Ct. at 141-142, 146-147.
However, A.L.’s fear of imminent serious physical harm did not arise solely from the July 2018 incident. A.L. testified that E.R. purposefully turned the WiFi off at her house, causing her to fear that she would not be able to contact help in the event E.R.’s increasing rage became uncontrollable. At the August 7, 2020 hearing, she testified that in recent years, E.R. had developed a newfound interest in guns, where he would go to the shooting range for target practice, and then would leave the paper targets around the house to show his "marksmanship." In the twenty-plus years that she had known E.R., he had never previously expressed any interest in guns; "in fact, it was the opposite."
On another occasion, after the restraining order was granted, A.L. went to a concert at her church, where E.R. sat down directly behind the chair where she had placed her coat and purse. This instance caused A.L. to startle. When E.R. walked into regular church services she was attending on two or three subsequent occasions, she experienced panic and fear, as she described E.R.’s actions essentially as a subtle, yet deliberate attempt to test the boundaries of the 209A order. E.R., however, maintains that there have been no incidents of abuse in the last two years, as he has complied with the 209A order. Yet, "obedience alone is not a ground for refusing an extension of the initial order." Iamele v. Asselin, 444 Mass. 734, 738 (2005). See G. L. c. 209A § 3 ("The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order"). Ultimately, we award the utmost deference to the credibility determinations of the judge who heard the testimony of the parties and observed their demeanor. See Noelle N., 97 Mass. App. Ct. at 664. E.R.’s "erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension that force might be used" (quotation and citation). Id. at 665. Therefore, we find no abuse of discretion in the judge finding A.L.’s fear of imminent serious physical harm to be reasonable, such that it was a sufficient basis to extend the abuse prevention order under G. L. c. 209A.
E.R. also argues that the judge extended the 209A order based on past abuse. Contrary to E.R.’s argument, the judge's decision to extend the order based on past abuse was neither erroneous, nor did it constitute an abuse of discretion. See M.B. v. J.B., 86 Mass. App. Ct. 108, 117 (2014) (judge may consider totality of circumstances, including history of anger and violation of no contact orders, to justify issuance of abuse prevention order under G. L. c. 209A).
Finally, E.R. claims that based on some of the judge's comments at an extension hearing on July 24, 2019, he awarded both extensions of the 209A order based upon an improper presumption. We disagree. No presumption arises from the initial grant of an abuse prevention order under G. L. c. 209A, and it is the plaintiff's burden to justify any extension of the original order. See MacDonald v. Caruso, 467 Mass. 382, 386 (2014). The judge's statements that E.R. claims gave rise to an improper presumption essentially were a recitation of the procedural history of the case, and nothing more. Prior to such statements, the judge summarized A.L.’s testimony, in that she testified she was in fear of imminent serious physical harm. He then acknowledged defense counsel's cross-examination of A.L., but also emphasized the burden of proof to defense counsel, pointing out that it was neither a reasonable doubt standard, nor even a standard of clear and convincing evidence. Instead, the judge properly emphasized that he had to determine, only by a mere preponderance of the evidence, whether A.L. was in reasonable fear of imminent serious physical harm. See Iamele, 444 Mass. at 736 (explaining plaintiff's burden of proof to receive extension of 209A order).
At the July 24, 2019 extension hearing, following A.L.’s testimony and defense counsel's cross-examination, the judge stated:
"I note the First Justice of Lowell, who was sitting here that date -- and matter of fact, the Regional Administrative Justice for Region 4, Judge Fortes -- heard all the evidence when they both were here, and Judge Fortes extended the order with a minor modification. Then they're before the Probate Court now, and it appears the Probate Court judge, Judge Black -- Judge Black, he modified the order with respect to the children but, you know, putting aside Judge D'Angelo, as the emergency judge, judge -- two other judges have passed on this and they have not terminated the order."
At no point did the judge state that because the order was previously awarded and extended, he had to presume it was proper. E.R. argues that the fact that the extension granted in August of 2020 was only for six months demonstrates that the judge was acting out of improper deference towards the previous extensions. We disagree. The duration of an extension of an abuse prevention order is entirely within the broad discretion of the judge. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). The fact that the judge extended the order only for six months, as opposed to a year like the previous extension, in no way demonstrates that the judge acted under a presumption of validity. Instead, the six-month extension merely demonstrates the judge's proper exercise of his broad discretion. As such, we find no error.
Order dated August 7, 2020, affirmed.