Opinion
No. 11–P–1365.
2012-10-4
Patricia FLATLEY v. David ABRAHAMIAN.
By the Court (GRAINGER, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff sought and received temporary and permanent protective orders pursuant to G.L. c. 209A barring the defendant, her former husband, from contact with her and their children upon his release from incarceration on charges of possession of an infernal machine (a pipe bomb), and violation of probation (cocaine use). The defendant appeals from the entry of the permanent protective order. The defendant claims that (1) the order was impermissibly based on stale events that took place during his marriage a decade ago, and (2) there was no present basis for the order due to minimal contact since the divorce and the three-year period of his incarceration. We affirm.
In order to obtain an extension of a protective order, a plaintiff must show “a reasonable fear of imminent serious physical harm” at the time the relief is sought. Iamele v. Asselin, 444 Mass. 734, 734–735 (2005). In ascertaining whether the plaintiff's fear of imminent serious physical harm is objectively reasonable, the judge may properly take into account the totality of the circumstances of the parties' relationship and “the nature and duration of the relationship, as well as any prior history of violence, threats, or hostility within it.” Vittone v. Clairmont, 64 Mass.App.Ct. 479, 487 (2005). After an evidentiary hearing, the judge made the following findings of fact.
The defendant physically abused the plaintiff during their eight-year marriage, placed a gun to her head in front of the children, and made repeated threats to kill the plaintiff, their children, and the dogs. He was a gun collector and possessed at one time more than 100 guns. He built pipe bombs. After the parties' divorce, he threatened his girlfriend and the dog in front of the children. He threatened both his former wife and his girlfriend with “bloodshed” if they called the police.
The defendant denies these allegations, but acknowledges for purposes of appeal that the judge's factual findings are supported by the evidence. In any case, we accord the credibility determinations of the judge who heard the testimony and observed the parties' demeanor the “utmost deference.” Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 3 (2006).
While in jail, the defendant sent letters to the children containing thinly veiled threats of “consequences” should they continue to refuse to communicate with him.
To the extent that the defendant argues that the fact of postdivorce, preincarceration visitation with the children undermines the judge's findings, the recurring threats of violence during those visits belie the defendant's arguments, and support the judge's findings.
Although the defendant claims that the passage of time and lack of recent contact while incarcerated undercut any conclusion that the plaintiff had a reasonable fear of imminent serious physical harm, neither the evidence nor the law “is circumscribed in the rigid manner that the defendant suggests.” Id. at 484 (rejecting defendant's argument that only evidence of recent words or conduct entitled plaintiff to c. 209A order). Given the defendant's extensive history of violence during the parties' marriage, and the threats which continued in letters to his children while incarcerated, the judge's conclusion that the plaintiff “demonstrated a credible ongoing fear of imminent physical harm” from the defendant, justifying the issuance of a permanent restraining order, was neither an abuse of discretion, nor other error of law. See Iamele v. Asselin, 444 Mass. at 739–740.
Permanent abuse prevention order affirmed.