Opinion
15-P-426
02-02-2016
RIMA BAAKLINI v. ALEXANDRE EL HOMSI.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant husband appeals from the order extending, for the fourth time, an abuse prevention order pursuant to G. L. c. 209A, § 3, following a complaint brought by the plaintiff wife. He contends that the plaintiff failed to establish that (1) she was in fear of imminent serious bodily harm, and (2) her fear was objectively reasonable. Because the judge, in issuing the extension, explicitly found that the statutory requirements were met and credited the plaintiff's testimony, and her testimony, if believed, was sufficient to establish reasonable fear, we affirm.
Discussion. We review the extension of an abuse prevention order for abuse of discretion. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). Credibility determinations by the judge are entitled to "the utmost deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). In order for the extension of an abuse prevention order to be appropriate, a plaintiff must show by a preponderance of the evidence that it is necessary to protect her from the likelihood of abuse by the defendant. See Iamele v. Asselin, 444 Mass. 734, 739 (2005). "Abuse" is defined to include, as pertinent here, "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1, as appearing in St. 1990, c. 403, § 2. If the order is based on fear of imminent harm, that fear must be objectively reasonable. See Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002).
The defendant argues that even if the plaintiff's testimony is fully credited it did not establish a fear of physical harm that was imminent. He further claims that the plaintiff's fear was not objectively reasonable. Rather, according to the defendant, the extension of the order represents an impermissible remedy for past abuse. We disagree.
At the hearing, the plaintiff described a pattern of verbal abuse followed by physical abuse during their marriage. In particular, she described an incident in May of 2012 when the defendant pushed her against the wall and threatened to throw their son "out of the deck" if she "called" the police. She testified to the abuse that occurred on the day the 209A order first issued -- the defendant yelling and pushing her away from his car when she approached to gather the children, and his threatening to "kill someone" if she kept asking questions about their son's ear drops. She further testified about the defendant's controlling nature and her fight to stand up for herself. She explained, "I know that if we're going to be in contact, that it's going to come back, and I can't, I'm scared. I can't imagine my life without the restraining order, to be honest, your honor."
Although there had been no violations of the restraining order since it first issued, the judge appropriately considered the entire relationship in determining the need for an extension of the order. "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." Iamele, 444 Mass. at 741. Mindful of that principle, the judge concluded, "[B]ased on the evidence I've heard today that I find credible, I find that, in fact, [the plaintiff's] fear of imminent, serious, physical harm is objective and reasonable and I am extending the order for one year." We defer to the judge's credibility determination and conclude that the evidence, while not overwhelming, was sufficient to establish a reasonable fear of imminent serious bodily harm.
December 4, 2014, order extending abuse prevention order affirmed.
By the Court (Vuono, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 2, 2016.