Opinion
No. 16–P–179.
11-21-2016
Suzanne M. BURKE v. Michael W. BURKE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an abuse prevention order entered pursuant to G.L. c. 209A, on September 30, 2015, which extended a previous order for ninety days. He argues that the plaintiff was not entitled to an abuse prevention order because she showed nothing more than a generalized apprehension which, standing alone, was insufficient to justify extending the initial order. Because we conclude that the evidence was sufficient to permit the judge to conclude that the plaintiff had met her burden to prove "by a preponderance of the evidence that an extension of the order [wa]s 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), we affirm.
Although the order has expired, this appeal is not moot. Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 638 (1998). We note that the defendant has not appealed from the initial order which was subsumed by the September 30, 2015, order that is the subject of this appeal. Id. at 642.
Based on the plaintiff's affidavit and testimony, the judge could find the following facts. The parties had been married for almost fifteen years. Albeit not recently, the defendant had once told the plaintiff that "if we ever split up, he had a bullet with our names on it." According to the plaintiff, the defendant was a very angry person, and emotionally and mentally abusive. The marriage had been in a "rocky place" for a while, and they had recently separated. On the day of the separation, the first things the defendant removed from the marital home were his many guns and the knife the plaintiff kept in her bedside table to protect herself. He did not turn all those guns in to the police department, despite the provisions of the initial restraining order. The defendant's answers to the judge's questions about why he removed the guns were shifting and implausible. For example, at one point during the hearing, the defendant stated he removed the guns because he did not "wanna do the back and forth thing with—with the police"; at another point, his counsel stated that the guns were removed because hunting season was coming up (even though the defendant acknowledged that the guns included pistols which are not used for hunting). The wife was fearful and nervous.
The judge was entitled to infer from the timing of the defendant's removal of the guns and the wife's knife, thus depriving her of self-protection, the defendant's failure to turn in all the guns as required, the defendant's lack of a consistent explanation for the urgency with which he removed the guns from the home, the defendant's earlier reference to having a bullet with the plaintiff's name on it, and the volatility of the parties' situation (which the judge considered "an extremely traumatic time"), that the defendant posed a risk of imminent physical harm to the plaintiff. This is not a case where the plaintiff's apprehension—even if characterized as "generalized"—stood alone.
"In reviewing the judge's decision to [allow] the plaintiff's request for an extension of [the] protective order, ‘we will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.’ " Iamele v. Asselin, supra at 741, quoting from C.O. v. M.M., 442 Mass. 648, 655 (2004). Here, it is clear that the judge employed the correct legal principles and considered, as she was required to, the totality of the circumstances, including "the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties' demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities (e.g., residential or workplace proximity, attendance at the same place of worship), and significant changes in the circumstances of the parties." Id. at 740.
For the reasons set out above, we affirm the order dated September 30, 2015.
So ordered.