Opinion
16-P-1468
07-06-2017
K.K. v. U.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the issuance of a protective order pursuant to G. L. c. 209A, § 3, sought against him by the plaintiff, his former wife. He argues there was insufficient evidence on which to issue the order. We agree and therefore vacate the order.
The plaintiff was granted ex parte a temporary order on September 9, 2016, pursuant to G. L. c. 209A, § 4. Following a contested hearing on September 22, 2016, the protective order that is the subject of this appeal was issued. The defendant did not appeal the ex parte temporary order.
Discussion. A plaintiff seeking a protective order on the basis of abuse as defined in c. 209A, § 1(b ), has the burden of showing that he or she is "currently in fear of imminent serious physical harm [and] that the fear is reasonable." Iamele v. Asselin, 444 Mass. 734, 737 (2005). In assessing reasonableness, "a court will look to the actions and words of the defendant in light of the attendant circumstances." Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). "The inquiry is particularized and situation dependent, calling upon the judge to examine the words and conduct ‘in the context of the entire history of the parties' hostile relationship.’ Pike v. Maguire, 47 Mass. App. Ct. [929, 930 (1999) ]." Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487 (2005). Nevertheless, the purpose of a protective order is "preventing imminent serious physical harm, not merely responding to past abuse." Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002).
Here, viewing all of the evidence in the light most favorable to the plaintiff, "[t]he defendant's conduct immediately preceding the issuance of the order ... cannot reasonably be said to have placed the plaintiff in fear of ‘imminent serious physical harm.’ " Ibid., quoting from G. L. c. 209A, § 1(b ). At the contested hearing, the plaintiff testified that the incident that led her to seek the order occurred one morning when the defendant dropped off the couple's child at the plaintiff's home. She stated that the defendant threw the child's heavy backpack through the front door, yelled at the plaintiff while standing in the entryway, and then left. The plaintiff testified that she felt "extremely scared" for her safety. However, the evidence did not show that the defendant threw the backpack with the intention of striking the plaintiff or even intended to throw it in her direction. According to the plaintiff's testimony, she was standing on a different floor of the home when the defendant tossed the backpack through the doorway, and it landed on the ground level. Moreover, the defendant's statement after he threw the backpack was not a threat of physical harm but rather an angry expression of frustration. It cannot be said that this behavior created a reasonable fear of imminent serious physical harm in the plaintiff. See Iamele, 444 Mass. at 737. Although his conduct was far from praiseworthy, there is a "higher bar for the issuance of a protective order than is found in the facts of this case." Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). See Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 288 (2003).
The parties' original plan was for the defendant to drive the child straight to school from his home, but the child had forgotten something at the plaintiff's home. The plaintiff testified that the child indicated to the plaintiff that morning that the defendant would instead be taking the child to the plaintiff's home.
The statement was, "I can take [the child] to school or I can drop her off [here]."
Regarding the defendant's past aggression toward the plaintiff and others, as well as his suicidal behavior, those circumstances did not make reasonable the fear of imminent serious physical harm the plaintiff may have had that morning. See Dollan, 55 Mass. App. Ct. at 906. Any fear that the plaintiff may have had as a result of the defendant's hostile behavior, coupled with her years of experience and familiarity with the defendant's temper and instability, is "the kind of ‘generalized apprehension’ that the courts have refused to recognize as abuse under G. L. c. 209A." Ibid., citing Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998) ( "Generalized 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"). Cf. Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140, 146 (2006) (need for order shown where, after two months of "hostile and increasingly erratic" behavior, including telling the plaintiff she "ruined his life" and her family "should be shot," defendant went "into a rage at an objectively trivial incident ... pulling at his hair while pacing back and forth, ... thrusting ... his waving hands into [the plaintiff's] face while screaming at her so uncontrollably as to project his saliva into her face, [and] pursuing her upstairs and downstairs as she tried to avoid his presence").
The plaintiff's testimony about an incident one year prior when the defendant threw two objects in anger did not convert the plaintiff's fear of imminent serious physical harm at the time of the order into a reasonable one. The objects thrown made no contact with the plaintiff, much less caused any serious physical harm. To the extent any of the defendant's behavior during their marriage constituted abuse, such past abuse is insufficient to satisfy the requirement that the plaintiff's reasonable fear of imminent serious physical harm be current. See Dollan, 55 Mass. App. Ct. at 906. See also Smith v. Jones, 75 Mass. App. Ct. 540, 545-546 (2009). The racist and harassing text messages sent by the defendant since their divorce also failed to convert the plaintiff's fear into a reasonable one and fell far short of the escalating menacing behavior taken into account in Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140, 146 (2006).
The order issued September 22, 2016, is vacated. The District Court shall cause a notification and direction to be sent, in conformance with G. L. c. 209A, § 7, third par., for the destruction of all records of the vacated order.
Of course, in the event the plaintiff comes to believe the defendant's conduct has created in her a current, objectively reasonable fear of imminent serious physical harm, she should not hesitate to file a new petition.
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So ordered.
Vacated.