Opinion
11-P-1000
04-23-2012
CONSTANCE HOMAN v. CHRISTOPHER HARPER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Christopher Harper, appeals from orders of the District Court (1) dissolving an abuse prevention order he had sought against Constance Homan, and (2) issuing against him an abuse prevention order sought by Constance Homan. We affirm both orders.
Background. We recite the facts from the record of the hearings in the District Court. On December 30, 2010, Harper applied for, and was granted, an abuse prevention order against his mother, Constance Homan. The next day, December 31, 2010, Homan appeared before the District Court and applied for a restraining order against her son, Christopher Harper. In her affidavit she stated that 'he shoved me.' At the ex parte hearing on the application for the abuse prevention order, Homan testified that 'I am in fear of my life with him.' After hearing Homan's testimony, the judge issued an abuse prevention order against Harper and dissolved the previous abuse prevention order issued against Homan.
On January 13, 2011, both parties appeared before the same judge. At the hearing, Homan testified that 'I'm in fear of my life from my son.' After hearing from both parties, the judge extended for one year the abuse prevention order against Harper. Harper did not appeal this decision.
On January 25, 2011, both parties appeared before a different District Court judge. At that hearing, the judge noted that the abuse prevention order had previously been extended for one year. Harper indicated that he was seeking to have the order vacated. At the hearing, the judge heard from both parties as well as a third party. Harper testified that he was no longer living at his mother's house and that he just wanted the ability to remove his belongings from his mother's house without having to hire a police officer in order to do so. In an effort to accommodate Harper, the judge vacated the abuse prevention order except for provision number one, which ordered Harper not to abuse Homan. The judge assured Homan that he was entering the order without prejudice so that if there was a problem in the future, she would not be precluded from seeking to have the entire order reinstated. Harper did not appeal this order.
Because in his filings in this court, Harper failed to include any of the motions that were allegedly filed in the District Court, we are only able to consider the transcripts of the hearings.
Although the transcript identifies the third party as 'Unidentified,' it is clear from the transcript that the third party is Homan's daughter and Harper's sister.
On March 22, 2011, the parties were yet again before the first District Court judge, apparently for a hearing on Harper's petition to vacate the original order. At the hearing, Harper argued that the original abuse prevention order should not have been issued. The judge ruled that Harper was not entitled to another hearing on the issuance of the abuse prevention order. After a single justice allowed Harper to file a late notice of appeal, he entered his appeal in this court on June 7, 2011.
Again, Harper has failed to include in the record appendix any of the motions or pleadings allegedly filed in this case; thus we are left to deduce the purpose of the hearings from the transcripts.
The notice of appeal is not before us. We shall assume for purposes of decision that the orders he purports to challenge in his brief are properly before us in this appeal.
Discussion. General Laws c. 209A was enacted 'to address the problem of domestic violence through the provision of judicial remedies.' Turner v. Lewis, 434 Mass. 331, 332 (2001). 'Abuse' sufficient to justify issuance of a c. 209A order 'is defined to include any of the following occurrences between family members: '(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress." Dollan v. Dollan, 55 Mass. App. Ct. 905, 905-906 (2002), quoting from G. L. c. 209A, § 1. Judges considering whether to issue a c. 209A order must 'be especially sensitive, and . . . examine such cases with restraint and compassion, . . . ' in the context of the entire history of the parties' hostile relationship." Jones v. Gallagher, 54 Mass. App. Ct. 883, 888 (2002), quoting from Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999).
Harper argues that the c. 209A order was erroneously granted because his mother failed to demonstrate that Harper's acts placed her in fear of imminent serious physical harm. It is true that '[g]eneralized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm' necessary to justify a c. 209A order. Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998), citing Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). Here, however, Homan asserted in her affidavit that Harper 'shoved' her. Past physical harm and fear of a repeat performance may justify a c. 209A order, Wooldridge v. Hickey, supra at 641, and the judge 'had the unrivaled benefit of observing the parties at close hand, with the commensurate ability to evaluate their credibility, in light not only of their testimony but also of their demeanor in court.' Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 147-148 (2006). The judge was entitled to credit Homan's testimony that she experienced physical harm at the hands of Harper and feared for her safety.
Harper has also failed to demonstrate merit in his arguments that the judge was biased against him or that the judge's purpose in issuing the c. 209A order against him was to protect Homan's property.
Order of December 31, 2010, vacating abuse prevention order of December 30, 2010, affirmed.
Abuse prevention order of December 31, 2010, as extended by order of January 13, 2011, and modified by order of January 25, 2011, affirmed.
By the Court (Vuono, Grainger & Carhart, JJ.),