Opinion
14-P-1145
05-06-2015
COLLEEN LEONE v. JAMES MULCAHY.
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, James Mulcahy, appeals from the entry of a permanent abuse prevention order issued against him pursuant to G. L. c. 209A, § 3. The abuse prevention order, obtained by the plaintiff, Colleen Leone, on February 23, 2012, was extended for one year after a hearing on March 9, 2012, and ultimately made permanent on April 18, 2014. This court affirmed the first extension in Mulcahy v. Mulcahy, 83 Mass. App. Ct. 1139 (2013). On appeal, the defendant argues that the evidence presented at the final hearing was insufficient to support a permanent extension. We affirm.
We review a judge's decision to extend an abuse prevention order for an abuse of discretion. Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487 (2005). In order to obtain a permanent extension of an initial abuse protection order, a plaintiff must demonstrate that she "continues to require protection from 'abuse' as explicitly defined in G. L. c. 209A, § 1." Iamele v. Asselin, 444 Mass. 734, 739 (2005), quoting from Jones v. Gallagher, 54 Mass. App. Ct. 883, 889 (2002). When such alleged abuse consists of "placing another in fear of imminent serious physical harm," see c. 209A, § 1, as it does here, a judge must ascertain whether such a fear is reasonable based on the totality of the circumstances. See Iamele v. Asselin, supra at 740. We conclude that the record includes ample evidence from which the judge could find that the plaintiff had a reasonable fear of imminent serious physical harm.
First, the judge appropriately considered the defendant's prior physical, verbal, and sexual abuse of the plaintiff. See Vittone v. Clairmont, 64 Mass. App. Ct. at 489 ("The infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim's fear of the perpetrator"); Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006) ("A determination whether harm is imminent . . . may involve an inquiry whether the defendant has engaged in abusive behavior in the past, and whether such behavior is likely to resume").
This finding is consistent with this court's previous holding that "the record [in this case] discloses numerous instances of the defendant's sexual and verbal abuse." Mulcahy, 83 Mass. App. Ct. at 1139. This court also previously referenced the plaintiff's affidavit in which she averred: "He would often tell me that he understood how a husband could kill his wife. He said, 'She does something to piss you off, in the heat of the moment -- bam! You kill her.'" Ibid.
Second, the judge acted well within his discretion to credit the plaintiff's and Francis Carelli's testimony about an incident in a restaurant in April, 2013, where the defendant did not leave immediately after seeing the plaintiff despite the existing abuse prevention order. See E.C.O. v. Compton, 464 Mass. 558, 562 (2013), quoting from Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006) ("We accord the credibility determinations of the judge who 'heard the testimony of the parties . . . [and] observed their demeanor' . . . the utmost deference"); Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995) (recognizing credibility of witnesses as "quintessentially the domain of the trial judge").
Third, because the judge heard the plaintiff's testimony regarding the abuse and observed her demeanor, he could rationally conclude that she continued to have the same reasonable fear of physical harm that had supported the initial order. See Iamele v. Asselin, 444 Mass. at 740 (recognizing parties' demeanor in court as one of factors to consider in evaluating extension of abuse protection order); Callahan v. Callahan, 85 Mass. App. Ct. 369, 375 (2014) (affording deference to judge's conclusion that plaintiff's demeanor reflected her "clear and palpable" fear of defendant). This judge specifically described his own observations of the plaintiff's fear at the hearing on the permanent abuse prevention order. Thus, we see no cause to disturb the judge's decision to permanently extend the abuse prevention order.
Conclusion. For the reasons discussed above, we affirm the permanent extension of the abuse prevention order.
Order dated April 18, 2014, affirmed.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 6, 2015.