Opinion
No. 15–P–1270.
08-22-2016
Tammy BOURLA v. Avraham BOURLA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The parties are married with two children, but are involved in ongoing divorce proceedings. The plaintiff sought an abuse prevention order against the defendant pursuant to G.L.c.209A. A District Court judge issued a temporary order after an ex parte hearing, and subsequently extended the order after a hearing at which both parties were present and represented by counsel. The order prohibited the defendant from abusing or contacting the plaintiff and the two children. The defendant appeals the denial of his motion to dismiss the complaint, and the extension of the order. We affirm.
Subsequent to the defendant filing this appeal, the District Court allowed his motion for modification to “[a]llow [the] children to contact [the] father by [tele]phone.”
The plaintiff has not appeared in this appeal.
Discussion. 1. Motion to dismiss complaint. The defendant argues that the judge erred in denying his motion to dismiss because the plaintiff's complaint and supporting affidavit presented no evidence that either she or the children “suffer[ed] from abuse.” G.L.c. 209A, § 3. A person has suffered from abuse where “she has a reasonable fear of imminent serious physical harm produced by the defendant's words or actions, viewed in light of the attendant circumstances.” Smith v. Jones, 75 Mass.App.Ct. 540, 544 (2009). This standard is objective, in that the “complainant's fears ‘must be more than “subjective and unspecified.” ‘ “ Id. at 543, quoting from Vittone v. Clairmont, 64 Mass.App.Ct. 479, 486 (2005).
The defendant filed a motion to dismiss the complaint, arguing that the court lacked personal jurisdiction, that venue was improper, and that the complaint was insufficient to justify the order. On appeal, he raises only the sufficiency of the complaint and whether the order therefore was properly issued.
The escalating nature of the defendant's actions well supported the issuance of the order as to both the plaintiff and the children. In her affidavit in support of the ex parte order, the plaintiff described an incident in July, 2014, when she “had a stomach ache [and] didn't want to be intimate.” The defendant reacted by “br[eaking] [a] countertop into pieces with [his] fist.” Later, he disposed of an iPod and changed the settings on her telephone to prevent Internet access. In the fall of 2014, he memorialized his wish to control the plaintiff in a letter to her: “Your body belongs to me. You are commanded to give [sexual intercourse] to me willingly as much as I desire.” While the affidavit did not state that the defendant had physically harmed the plaintiff, “[a] plaintiff need not wait until an assault occurs to seek protection.” M.B. v. J.B., 86 Mass.App.Ct. 108, 117 (2014). The affidavit paints a picture of the defendant's mounting instability, thus reasonably supporting the plaintiff's fear that she would soon suffer physical abuse.
To the extent the defendant argues that an affidavit must be supported by testimony to justify an ex parte order, we have never imposed such a requirement. See Guidelines for Judicial Practice: Abuse Prevention Proceedings §§ 2:04 commentary, 3:07 (Sept.2011) (if affidavit is sufficient to support issuance of order, testimony is unnecessary).
The defendant's argument that the order was unnecessary because he was already subject to criminal prosecution under a “disinvitation notice” is without merit. Given that abuse prevention proceedings are civil, potential criminal liability for the same behavior is irrelevant. See S.T. v. E.M., 80 Mass.App.Ct. 423, 430 (2011) (“A judge should not ... discontinue an abuse prevention proceeding because he believes it should move to another forum—[such as] criminal court”).
The defendant's argument that issuing the order to protect the children was error is similarly unavailing. The affidavit provides at least two bases of “independent support” to issue the order as to the children as well. Smith v. Joyce, 421 Mass. 520, 523 (1995). At one point the defendant said, “I am going to kill myself,” in the children's presence. In another incident, the plaintiff brought the children to a restaurant to see the defendant during a period of separation. There, after following the plaintiff around and verbally harassing her, the defendant “grabbed [their four] y[ea]r old and left [the] restaurant,” forcing the plaintiff to follow him with their older child in tow. The fact that the husband threatened violence to himself in front of the children, and then forcibly removed one of them, provides adequate support for the judge's order as to the children. See Custody of Vaughn, 422 Mass. 590, 599–600 (1996) (discussing the “profound impact” that “witnessing domestic violence” has on children).
2. Extension of the order. The defendant argues that the extension of the order was also error because the plaintiff failed to show a risk of harm to herself or the children. However, “[t]he only criterion for extending the original order is a showing of continued need for the order.” Iamele v. Asselin, 444 Mass. 734, 739 (2005), quoting from Doe v. Keller, 57 Mass.App.Ct. 776, 778 (2003). This inquiry examines the “totality of the circumstances” surrounding the parties. M.B. v. J.B., 86 Mass.App.Ct. at 117.
At the extension hearing, the plaintiff provided further evidence that the defendant's behavior was rapidly progressing to pose a serious danger to herself and the children. After the incident in July, 2014—an act the defendant himself described as a “fit of rage”—and after the letter espousing his sexual entitlement, the defendant sent the plaintiff another letter in December, 2014. That letter demanded, among other things, that the plaintiff daily read the Bible, “wear nice clothes” and makeup, “do intense aerobic exercise,” and clean the house. Then, days before the plaintiff sought the initial order in January, 2015, the defendant asked the plaintiff to have sex with him, followed her when she refused, claimed she had cheated on him, and threatened suicide. As the judge found, the plaintiff had “every right to be afraid of” the defendant, thus supporting a continuing need for the order. See Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 146 (2006) (need for order shown where defendant went “into a rage at an objectively trivial incident,” and “pursu[ed] her ... as she tried to avoid” him, claiming she “ruined his life”).
In making his findings and ruling, the judge expressly credited the plaintiff's testimony.
The defendant's attempt to characterize this letter as a “honey-do list” ignores the letter's surrounding circumstances. Before the letter, the defendant also disallowed the plaintiff from using contraception so that she would “be pregnant and suffer.” Thus, after having claimed ownership over the plaintiff's body, her reproductive choices, and her means of communication, the letter asserted the defendant's control over every other aspect of her day. See Schechter v. Schechter, 88 Mass.App.Ct. 239, 241 n. 5 (2015) (domestic violence includes “behaviors that are intended to monitor, control, or threaten an intimate partner”) (citations omitted). Further incapacitating the plaintiff's communication access, the defendant later “disconnected the [house] telephone.” In this context, the judge's comments that he did not “know what century [the defendant] was born in but ... she's not an animal, she's not property” did not “imply personal animus” against either the defendant or his religion. Rather, such comments underscored how antiquated and harmful the defendant's language towards the plaintiff actually was. See, e.g., Harmon v. Old Colony R.R., 165 Mass. 100, 104 (1896) (holding that a married woman is a “distinct and independent person from her husband”).
The plaintiff presented additional evidence that showed a continuing need to protect the children from the defendant as well. See Schechter v. Schechter, 88 Mass.App.Ct. 239, 251253 (2015) (discussing requirements for parent to obtain abuse prevention order on behalf of minor child). For instance, during the incident at the restaurant the defendant told the older son “that he needed to do an investigation with him to figure out who the [other] man was.” That same day, when the defendant refused to leave, the older son began “banging his head saying that he wanted to be knocked out [and that he] can't hear this anymore.” Later, in December, 2014, when the plaintiff refused to go with the defendant outside in the dark, “he went [back] inside and verbally abused the children and then looked at [the plaintiff] and said now are you ready to go out?” The defendant's involvement of the children in his spousal abuse, his verbal abuse directed at the children, and the evident negative impact his behavior already was having on the older child provide more than enough support to extend the order for the protection of the children. See Schechter v. Schechter, 88 Mass.App.Ct. at 253 (father's “chronic misbehavior” indicated that allowing contact between him and child would “cause the child to suffer serious emotional harm,” despite lack of verbal or physical abuse directed at child).
The judge specifically cited this incident in his findings.
Order denying motion to dismiss complaint affirmed.
Order dated February 24, 2015, affirmed.