Opinion
21-P-494
07-11-2022
E.B. v. U.O.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Following a hearing, a judge of the District Court extended an abuse prevention order against the defendant, U.O. He now appeals, claiming there was insufficient evidence to support the extension. We affirm.
Background.
We summarize the relevant facts as follows. The plaintiff, E.B., and defendant, U.O., met in 2013 and immediately began a dating relationship. In 2014, the couple moved in together, and E.B. gave birth to their first child shortly thereafter. E.B. testified that around this time, U.O.'s behavior became controlling and emotionally abusive: he would "yell and scream" at her and "belittle [her] in public and in front of their friends." U.O. would frequently lose his temper at E.B. when she did something he perceived to be wrong.As a result of one such incident, E.B. contacted the police and moved out of the home into her own apartment.
On one occasion, when the couple was getting ready to attend a Christmas party, U.O. became upset that E.B. was wearing jeans. According to E.B., U.O. called her a "fucking fool," and started to push around the furniture in the room. On another occasion, U.O. became angry when E.B. did not give their son milk despite his suggestion to the contrary. He called E.B. a "fucking moron" and stated that she "[had] no education."
E.B. returned to live with U.O. just before the birth of their second child. Some six months later, the newborn was suffering from infant thrush. Though the child's pediatrician informed the couple that the infection would pass on its own, U.O. witnessed E.B. putting cortisone cream on the baby's face on two occasions. A verbal altercation ensued in which U.O. called E.B. "stupid," prompting E.B. to contact the police and to move out of the home.
Between 2016 and 2019, the couple shared custody of their two minor sons and resided separately. They maintained a coparenting relationship, spending time together, traveling, and hosting joint birthday parties for the children before ultimately marrying and moving into a family home in 2019.
E.B. testified that the two resumed arguing shortly after moving in together. They also began to sleep in separate rooms, and E.B. began to contemplate moving out again.
On May 8, 2020, U.O. entered the room where E.B. was sleeping. He was angry that she had forgotten to close the basement window and, in an attempt to wake her up, began to curse at her and shake and push her on the back. Several days later, on May 11, E.B. filed a police report. A judge of the District Court then issued a temporary abuse prevention order, effective through May 26, 2020, based on the incident.
The order was subsequently extended through August 5, 2020. At that time, the parties modified the order, and it was extended to October 7, 2020, and later, to November 18, 2020.
The order was modified to allow U.O. to communicate with E.B. via email, to allow Facetime video calls between U.O. and his children, and to allow him to attend the children's events and medical appointments. The order was also amended to allow U.O. to pick up and drop off the children at E.B.'s residence because E.B. did not have a car.
On November 18, 2020, a hearing was held at the District Court, where both parties appeared with counsel. At the hearing, E.B. testified to the May 8th incident, recalling that U.O. came into the room where she was sleeping around midnight, turned on the lights, and started to yell and push her. She remembered U.O. "crowding" her and saying, "[w]ake up fucking idiot, what's wrong with you?"; "go the basement"; "close the fucking window;" and "you're a fucking moron, what's wrong with you?" U.O. was on crutches at the time, and E.B. was afraid he would use them to harm her.
Along with her testimony, E.B. also submitted an affidavit in which she described a more extreme version of the events, detailing that U.O. "started shaking [E.B.] to get [E.B.] out of bed and then pushing [her] in the back harder and harder" and that he appeared "aggressive and angry" in doing so. After considering the testimony of the witnesses, affidavits, exhibits on file, and arguments, the judge made several findings on the record. First, she concluded there was sufficient evidence before her "of an incident on May 8 involving physical abuse." Second, she stated that she credited E.B.'s testimony regarding what happened on May 8 and May 9. And third, she noted that she had several exhibits, including E.B.'s affidavit and police reports describing various incidents between the parties, as well as text messages, that "provid[ed] insight into the tenor of the arguments that happen between the parties and the nature of what [she] saw as extremely controlling behavior by [U.O.]" The judge then extended the order through May 11, 2021.
The police report from May 11 submitted as an exhibit at the hearing also states that E.B. reported being pushed by U.O. with increasing force. The police report stated: "[E.B.] explained that her husband U.O. violently woke her up on Friday night for leaving a window open. U.O. was yelling at her and pushed her repeatedly. [E.B.] stated that each time he pushed her, he was pushing harder and harder."
Discussion.
"Whether seeking an initial abuse prevention order under G. L. c. 209A or a later extension, the burden is on the plaintiff to establish facts justifying issuance, or continuance, by a preponderance of the evidence." Callahan v. Callahan, 85 Mass.App.Ct. 369, 372 (2014). As relevant here, a plaintiff must prove that he or she is suffering from "abuse," defined as (a.) "attempting to cause or causing physical harm" or (b) "placing another in fear of imminent serious physical harm." Iamele v. Asselin, 444 Mass. 734, 736-737 (2005); G. L. c. 209A, § 1 (a.), (b) . This definition "closely approximates" the definition of assault. See Parreira v. Commonwealth, 462 Mass. 667, 674 (2012) .
Appeals from expired prevention orders should not be dismissed as moot where the parties have "surviving interest[s] in" the case. Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 638 (1998) . See Allen v. Allen, 89 Mass.App.Ct. 403, 405 (2016) ("abuse prevention orders may carry collateral consequences following their expiration").
"The standard for obtaining an extension ... is the same as for an initial order." S.V. v. R.V., 94 Mass.App.Ct. 811, 813 (2019), quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014).
Where an order is issued under subsection (a.) of the statute, a plaintiff seeking an extension need not prove that additional violence occurred or that she has a reasonable imminent fear of future abuse. See Yahna Y. v. Sylvester S., 97 Mass.App.Ct. 184, 186-187 (2020); Mclsaac v. Porter, 90 Mass.App.Ct. 730, 733-734 (2016) . Instead, the judge issuing the extension "may reasonably conclude that there is a continued need for [an] order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent." Mclsaac, supra at 733, quoting Callahan, 85 Mass.App.Ct. at 374.
We note that the judge did not articulate the specific provision of G. L. c. 209A, § 1 she relied on in extending the order. But "where we are able to discern a reasonable basis for [an] order ... no specific findings are required." G.B. v. C.A., 94 Mass.App.Ct. 389, 396 (2018). Given the judge's explanation for the extension, it appears she issued the order under subsection (a.) . Because we ultimately conclude that the judge had a reasonable basis for doing so, her failure to name the subsection on the record is not fatal.
"The only criterion for extending the original order is a showing of continued need for [it]." Pike v. Maguire, 47 Mass.App.Ct. 929, 929 (1999). A judge evaluating the risk of future abuse should the existing order expire considers "the totality of the circumstances of the parties' relationship . . . viewed in the light of the initial abuse prevention order." Iamele, 444 Mass. at 740-741. The judge also must consider "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 . . ., and significant changes in the circumstances of the parties." Id. at 740. "Such consideration furthers the Legislature's purpose to establish a statutory framework to 'preserve . . . the fundamental human right to be protected from the devastating impact of family violence'" (citation omitted) . Id. "No one factor is determinative." Id. at 741.
We review the extension of an abuse prevention order "for an abuse of discretion or other error of law." G.B. v. C.A., 94 Mass.App.Ct. 389, 393 (2018), quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013). An abuse of discretion may only be found where a judge clearly erred in weighing the factors relevant to her decision, such that the decision falls "outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We give great deference to a trial judge's exercise of discretion when reviewing under this standard. See id. ("it is plainly not an abuse of discretion simply because a reviewing court would have reached a different result"). We accord the "utmost deference" to the judge's credibility determinations because she "heard the testimony of the parties . . . [and] observed their demeanor" (quotations omitted). Noelle N. v. Frasier F., 97 Mass.App.Ct. 660, 664 (2020), quoting Yahna Y., 97 Mass.App.Ct. at 185. Nevertheless, "we 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." G.B., supra, quoting Iamele, 444 Mass. at 741.
In challenging the issuance of the extension, U.O. makes a variety of arguments related to the sufficiency of the evidence against him. We address each in turn.
U.O. first challenges the judge's finding that the May 8 incident involved physical abuse. In support of his claim, U.O. points to the fact that E.B. did not sustain injuries, seek medical attention, or describe physical pain she experienced as a result of the incident. This contention is unavailing.
Prong (a.) of the statute applies where the defendant has "caus[ed] physical harm." It is clear that the physical harm need not be "serious," as other provisions refer to "serious physical harm." Even a transient sensation of pain is sufficient to meet the standard of "physical harm." Indeed, in another context, the Supreme Judicial Court has expressly described "fleeting pain or minor, transient marks" as "physical harm." Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015).
The judge had before her sufficient evidence to support the conclusion they did. U.O's acts described by E.B. -- entering the room where E.B. was sleeping late at night to yell at her, then pushing her in an angry and aggressive fashion, multiple times, harder and harder -- involved the use of physical force, something that is relevant in our law to distinguish more from less serious physical battery. Cf. Commonwealth v. Eberhart, 461 Mass. 809, 818-819 (2012) ("Harmful battery and reckless battery do have as an element the use of 'physical force' sufficient to implicate the [violent crime] sentencing enhancement. Offensive battery, however, which can be committed through such de minimis touching's as tickling and spitting, does not") In addition, E.B. testified to her shock that this happened while she was asleep, stating that "it's sort of like I was sleeping and he was coming to get me." She spoke of her disabling fear and her conclusion that she "had to run." And, later in her testimony, she equated being pushed with being hit, stating that she was "always ashamed" to describe her abuse as "physical" because "For me, physical [means] to be in a hospital. But if he hit you or push you, I don't see it." She stated she herself would not describe something as physical abuse unless "I was almost killed." The record also provided further context, including U.O's statements and prior incidents between the parties and E.B.'s reaction to them, that implied the severity of the assault on May 8. On all the facts and circumstances revealed by the record, we think there was evidence sufficient to support a conclusion by a preponderance of the evidence that the increasingly forceful, offensive, and unjustified pushes U.O. administered to E.B. while she was sleeping caused at least transient pain in E.B. and that this amounted to physical harm.
In this case there was no specific testimony by E.B. about the level of pain and we think it would be prudent in subsequent cases involving prong (a.) for counsel to adduce direct testimony of the force used or the description of the pain caused so that the record is clear about the unconsented to touching.
E.B.'s subjective views about what amounts to "physical abuse," understandably if unfortunately informed by the shame victims may feel about domestic violence, have no bearing on the proper construction of our statute.
U.O. next argues that E.B. failed to show that she was suffering from abuse at the time of the hearing on her request for an extension of the order. Where an extension is based on a finding of past physical abuse, however, the plaintiff need only show that he or she is "still 'suffering from' that abuse in that the victim reasonably remains in fear of the abuser." Mclsaac, 90 Mass.App.Ct. at 733-734. At the hearing, E.B. testified to her present fear of U.O. In addition, she presented evidence of the parties' relationship leading up to May 8, including U.O.'s history of controlling behavior, anger, verbal abuse, and past physical violence, which the judge apparently credited, and which supported her ongoing concern for her safety. She therefore satisfied her burden. The judge could have reasonably determined that E.B. was still affected by the May 8 incident and that an extension was necessary to protect her from the impact of that event. That the parties no longer lived together or that U.O. had not violated the order does not undercut this conclusion. They were still involved in "ongoing child custody or other litigation that engenders or is likely to engender hostility," Iamele, 444 Mass. at 740, namely, a divorce in which U.O. alleged E.B. commenced the G. L. c. 209A proceedings as a means of gaining an advantage.
At the hearing, E.B. suggested that U.O. had been physical with her in the past but she was "ashamed" to report it. The judge did not make any specific findings about these claims. Generalized allegations alone are insufficient to support the extension of an abuse order, see Wooldridge, 45 Mass.App.Ct. at 642, however, we think these allegations lend additional support to E.B.'s fear of U.O.
U.O. further claims error to the extent the judge extended the order on the basis of U.O.'s "allegedly controlling but non-physical behavior." Because the order was primarily predicated on a finding of past physical abuse, this contention is without merit. In a totality of the circumstances analysis, it was within the reasonable range of alternatives for the judge to highlight other aspects of the parties' relationship in addition to the May 8 incident of abuse that she found troubling. See L.L., 470 Mass. at 185 n.27; Iamele, 444 Mass. at 740-741.
The other aspect of the relationship the judge considered was the "tenor of the arguments that happen between the parties." Though the judge did not elaborate further on what she meant by this, our review of the record suggests that this may have been a reference to U.O.'s history of angry outbursts, which the wife testified to at the hearing and in her affidavit, and which were documented in police reports submitted as exhibits.
U.O. finally contends that the judge abused her discretion in crediting E.B.'s testimony because there were "compelling" reasons to doubt her fear of U.O. and her version of the events of May 8. He points to various behaviors and actions he claims are inconsistent with a fear of U.O., such as delayed reporting of the May 8 incident and past physical abuse, as well as agreed-upon modifications of the earlier protective order to increase the parties' contacts. We are unpersuaded by the contention that E.B.'s fear was not credible. We see no reason to doubt the trial judge's findings and we see no abuse of discretion when she had the opportunity to observe E.B.'s demeanor in court and to contrast her testimony with U.O.'s rendition of the events. See Smith v. Jones, 75 Mass.App.Ct. 540, 547 (2009) (Cypher, J., dissenting). Our role as an appellate court is not to reassess such determinations. See Noelle N., 97 Mass.App.Ct. at 665.
The judge was not required to explain why she credited E.B.'s testimony over U.O.'s in the face of potential inconsistencies.
Order extending abuse prevention order affirmed.
The panelists are listed in order of seniority.