Opinion
No. 15–P–1243.
05-27-2016
Monica Erin BUSCH v. Aaron J. BUSCH.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Aaron J. Busch, appeals from the issuance of a one-year extension of a temporary abuse prevention order that was obtained by his daughter, Monica Erin Busch. See G.L. c. 209A. The defendant contends that the judge erred in extending the order because there was no basis to establish the continuing need for the order. We affirm.
Because the parties share a last name, we refer to the plaintiff by her first name for ease of reference.
Background. In 2012, the defendant was convicted of several sexual offenses against Monica, who was a minor at the time, including indecent assault and battery and lewd and lascivious behavior. After being released from incarceration in Massachusetts, the defendant moved to South Carolina.
On March 24, 2015, at approximately 6:45 A.M., Monica began receiving text messages from a cellular telephone shared by the defendant, Monica's mother, and Monica's brother. Despite her steadfast requests that the messages cease, and repeated statements that she felt harassed, Monica continued receiving messages that are fairly characterized as manic, unrelenting, and potentially menacing. The messages included repeated pleas for Monica to reestablish contact with the defendant, accusations that she had falsely accused the defendant, and a statement supposedly from her mother that she wished Monica had never been born. While the identity of the person sending the messages from the same phone was not always clear, the final messages appear to be expressly from the defendant. When Monica stated that there was a restraining order prohibiting the contact, the defendant stated that he knew there was no such order, although he refused to divulge how he knew.
Specifically, in response to Monica's contention that there was a restraining order prohibiting contact, the defendant stated, “[y]our mom and brother is currently at work. And you do not have such a thing. I will not tell you know I know but I do. I feel sorry for you that you hate your mother and brothers so much. They tried so much to love you Evan [sic] after you destroyed their lives and attacked them.”
On March 25, 2015, following an ex parte hearing, Monica obtained a temporary 209A order against the defendant. At the subsequent hearing to extend that order, Monica testified that she remained in fear of imminent serious bodily harm. The judge granted an extension of the 209A order based on Monica's fear of the defendant which was caused by the past incidents of sexual abuse coupled with the deluge of disturbing text messages received on March 24, 2015. The judge granted the one year extension, which expired on April 4, 2016.
The defendant does not challenge the validity of this order on appeal.
A list of the text messages by both parties was submitted to the judge during the hearing.
Discussion. We review the issuance of a 209A order “for an abuse of discretion or other error of law.” E.C.O. v. Compton, 464 Mass. 558, 562 (2013), citing Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). Here, the judge carefully considered the totality of the circumstances of the parties' relationship and extended the 209A order due to the defendant's past sexual abuse against Monica, the troubling text messages Monica received that could reasonably be attributed to the defendant, or at least orchestrated by him, and Monica's testimony that she was in fear of imminent serious physical harm. See Iamele v. Asselin, 444 Mass. 734, 740 (2005). Although the text messages themselves did not directly threaten imminent physical harm, when considered in the context of the history of sexual abuse perpetrated by the defendant, they were sufficient to support the judge's conclusion that the plaintiff had such a reasonable fear. Ibid. Based on those findings, we discern no abuse of discretion or error of law in extending the 209A order. See Vittone v. Clairmont, 64 Mass.App.Ct. 479, 489 (2005) ; Callahan v. Callahan, 85 Mass.App.Ct. 369, 374 (2014). See also G.L. c. 209A, § 1 “Abuse” (a ), (b ). The fact that the defendant lived in South Carolina at the time of the hearing does not undermine the judge's decision to extend the 209A order. See MacDonald v. Caruso, 467 Mass. 382, 392 (2014) (distance between parties does not, by itself, mean that defendant could not engage in conduct triggering order).
Order extending abuse prevention order affirmed.