Opinion
19-P-1141
06-01-2020
K.P. v. J.P.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The defendant appeals from an order of a District Court judge extending after notice an ex parte abuse prevention order issued against him under G. L. c. 209A. He argues that the plaintiff failed to prove that she reasonably feared imminent serious physical harm. We affirm.
Background. The judge received the following evidence at the hearing after notice, at which both parties appeared with counsel and the plaintiff testified. The parties divorced in May 2018. They agreed to joint legal custody of their three children and executed a separation agreement detailing their respective parenting time.
The plaintiff testified that the defendant physically abused her during their marriage and described two arguments with the defendant that escalated into violence. One incident, which resulted in the defendant's arrest, occurred on May 15, 2018, about one week before the parties' divorce. The plaintiff, who was at the defendant's house to pick up the children, went to speak with the defendant in the garage. They began arguing, and the defendant "chest-[b]umped [the plaintiff] out of the garage," pushed her, and pinned her to the hood of a car.
Police reports detailing these incidents were admitted in evidence.
The second incident occurred on May 30, 2019, a few weeks before the plaintiff sought the abuse prevention order. The defendant drove to the plaintiff's house and pulled into the driveway. The plaintiff asked the defendant to leave her property, but he refused, causing the plaintiff's boyfriend to come out of the house. The defendant then got out of his car and "posture[d]" at the boyfriend. The boyfriend threw the defendant back in the car, and the defendant left the driveway, only to park the car on the street and get out again. This led to a physical altercation with the boyfriend. The plaintiff testified that she feared imminent physical harm from the defendant during this incident.
The plaintiff testified that there was no reason for the defendant to be at her house because he had already picked up the children. The defendant told police that he went there to get socks for one of the children.
The plaintiff further testified that the defendant had shown up at her house "multiple times over the past six months, unannounced, cursing at [her] in front of the children." The defendant would also show up when the plaintiff was not home, take things from her garage and trash, and steal her mail. Because of the defendant's recent behavior, the plaintiff feared that he would cause her immediate serious harm, which led her to install cameras around her house.
Discussion. A plaintiff seeking issuance or an extension of an abuse prevention order must prove by a preponderance of the evidence that he or she is presently "suffering from abuse." G. L. c. 209A, § 3. "Abuse" can be proven in several ways, including, as pertinent here, by showing that the defendant "placed the plaintiff in reasonable fear of imminent serious physical harm." MacDonald v. Caruso, 467 Mass. 382, 386 (2014). The plaintiff must show both that "he or she is currently in fear of imminent serious physical harm" and that "the fear is reasonable" (emphasis omitted). Iamele v. Asselin, 444 Mass. 734, 737 (2005). In determining whether a plaintiff has met this burden, "a judge must consider the totality of the circumstances of the parties' relationship." Id. at 740. We review the judge's decision "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).
Based on the evidence presented, we conclude that the judge did not abuse her "wide discretion" in extending the ex parte order. Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009). First, while there are no findings on the record, it is clear that the judge credited the plaintiff's testimony that she currently feared imminent serious harm from the defendant. See G.B., 94 Mass. App. Ct. at 396 ("where we are able to discern a reasonable basis for the order in the judge's ruling and order, no specific findings are required"). The defendant argues that the plaintiff's actions belie that she feared imminent harm; for example, he points to evidence that after the May 30, 2019, incident, the plaintiff continued to drive to the defendant's house to pick up the children and insisted that the defendant return to her house to drop them off. But the judge, who heard the plaintiff's testimony and observed her demeanor, could still rationally find that the plaintiff's fear of the defendant was genuine, especially given her testimony that she installed cameras around her house because of her fear. We afford "the utmost deference" to the judge's determination. E.C.O., 464 Mass. at 562, quoting Ginsburg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).
We note also the plaintiff's testimony that she understood the separation agreement to require the drop-offs to occur at her home.
Second, the judge was within her discretion to find the plaintiff's fear to be objectively reasonable. Although the defendant notes that he did not harm or threaten to harm the plaintiff during the May 30, 2019, incident, the judge had to consider all of the attendant circumstances, including the history of the parties' relationship. See Iamele, 444 Mass. at 740. The plaintiff testified that the defendant was physically abusive during their marriage and offered evidence of a specific incident of physical violence perpetrated by the defendant about a year earlier. Furthermore, the judge heard testimony that the defendant had been behaving erratically over the prior six months, showing up at the plaintiff's house unannounced, cursing at her in front of the children, and going through her trash and stealing her mail. Considering these circumstances together with the May 30 incident, the judge could have found that the plaintiff reasonably feared for her safety. While the defendant points to the plaintiff's boyfriend as the aggressor in the May 30 incident, the evidence showed that the defendant played a significant role in provoking the encounter, both initially by refusing to leave the plaintiff's property when she asked him to, and then again by getting out of his car once he had parked it in front of her house. See Commonwealth v. Robicheau, 421 Mass. 176, 182 (1995) (in light of parties' hostile relationship, jury could have found that defendant's "belligerent words and conduct" -- including his refusal to leave victim's property and getting out of car -- "caused a reasonable apprehension in the victim that he intended to harm her"). The judge could also have considered the frequency with which the parties, who share parenting time, would encounter each other. See Iamele, 444 Mass. at 740.
In the end we are satisfied that "[t]hese factors, taken together, in the context of the entire history of the parties' hostile relationship," supported issuance of the abuse prevention order. Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999). The judge's decision did not "fall[] outside the range of reasonable alternatives." G.B., 94 Mass. App. Ct. at 393, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Order dated June 17, 2019, affirmed.
By the Court (Milkey, Shin & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 1, 2020.