Opinion
21-P-678
04-20-2022
L.T. v. E.P.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On September 28, 2020, a Newburyport District Court judge granted the plaintiff, L.T., an ex parte abuse prevention order, pursuant to G. L. c. 209A, against the defendant, E.P. The order was extended for one year on November 5, 2020. E.P. now appeals from the extension of the 209A order, claiming that L.T. failed to prove by a preponderance of the evidence that she had a reasonable fear of imminent serious physical harm, such that there was a likelihood of abuse. We affirm.
The initial order expired on October 9, 2020, but the parties agreed to extend the order until November 5, 2020, to allow for an in-person hearing.
Discussion. "A plaintiff seeking the extension of an abuse prevention order must prove by a preponderance of the evidence ... that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm" (quotation and citation omitted). G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018). "We review the issuance of [an extension] of a 209A order for an abuse of discretion or other error of law, ... such that the judge's decision falls outside the range of reasonable alternatives" (quotations and citations omitted). Id. E.P. claims that L.T. has failed to prove by a preponderance of evidence that she feared imminent serious physical harm such that the extension of the order was necessary to protect against a likelihood of abuse. We disagree.
E.P. also argues that the judge erred in failing to issue any factual findings in support of the extension of the 209A order. However, "where we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required." G.B., 94 Mass. App. Ct. at 396. Here, where the judge heard the testimony of both parties, by deciding to extend the 209A order, the judge implicitly credited the testimony of L.T. such that he found sufficient evidence that E.P. placed her in reasonable fear of imminent serious physical harm. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006).
Here, L.T. testified that on September 26, 2020, E.P. arrived at her home to pick up their daughter. When E.P. arrived, he was very angry, slammed the door of his truck as he exited the vehicle, and started to scream, yell, and point at L.T. as he approached her. While screaming and pointing, E.P. told L.T. he would sue her criminally if she continued to interfere with their daughter and her schooling. E.P. then threatened L.T., as he yelled at her to "mind [her] P's and Q's," and to "watch [her] back," as he was "coming after [her]." L.T. testified that while she had seen E.P. angry, "this [was] just a very different, different thing." E.P.’s anger had begun to rise in the midst of an increasingly contentious custody battle over their daughter. In response to this escalating anger, L.T. testified that she had become so fearful of him that she had been unable to sleep; she refused to stay in her own home alone; and, "even just talking about" E.P.’s increasing hostility would cause her to shake and "throw up."
E.P. had taken their daughter out of public school, and enrolled her in private school, without L.T.’s permission. Because the parties shared joint legal custody of their daughter, E.P. was ordered to re-enroll her in public school, following a hearing in the Probate and Family Court on September 2, 2020.
L.T. also testified that on September 12, 2020, she was nervous of E.P.’s arrival at her home to pick up their daughter, as "things [had been] really escalat[ing] in [c]ourt." Upon his arrival, L.T. saw E.P. get out of his truck, slam the door, and walk very quickly towards the door. Upon seeing this, and believing there was no reason for E.P. to even leave his truck to pick up their daughter, L.T. notified E.P. that her parents were there to visit her. L.T. testified that she told E.P. that her parents were in the home, so as to ensure that E.P. would not think that she was home alone.
In her affidavit, L.T. stated that E.P.’s "complete anger" towards her after the September 2, 2020, child custody hearing caused her to be "extremely afraid for [her] safety," as E.P. had "absolutely unraveled" since the hearing.
On appeal, E.P. characterizes L.T.’s fear as failing to rise to the level of abuse, as defined by G. L. c. 209A, § 1 (b ). E.P. argues that such fear constitutes nothing more than mere "[g]eneralized apprehension, nervousness, [or] feeling aggravated or hassled." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). However, the judge heard the testimony of both L.T. and E.P., and thus, he was in the best position to observe the parties’ demeanor. See S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019). He was in the best position to make a credibility determination between the two parties’ conflicting versions of the events that took place on September 26, 2020. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 185 (2020). Where in extending the 209A order, the judge implicitly credited the testimony of L.T., over that of E.P., see Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), we discern no abuse of discretion in the judge's determination that L.T. was in actual fear of serious imminent physical harm. See G.B., 94 Mass. App. Ct. at 393 (abuse of discretion need "fall[ ] outside the range of reasonable alternatives" [quotation and citation omitted]).
In order to extend the 209A order though, L.T. needed still to satisfy both the subjective and objective portions of the G. L. c. 209A, § 1 (b ) abuse standard, i.e., her subjective fear of imminent physical harm need also have been objectively reasonable. See Yahna Y., 97 Mass. App. Ct. at 186. E.P. argues that L.T. has failed to meet her burden on the objective portion of the G. L. c. 209A, § 1 (b ) abuse standard. We disagree.
In his brief, E.P. argues that the record is devoid of any evidence of physical abuse. He claims that L.T.’s subjective fears, coupled with mere finger pointing and screaming, does not give rise to a reasonable fear of imminent serious physical harm. However, "[t]he purpose of a c. 209A order is to protect a plaintiff from the likelihood of abuse." M.B. v. J.B., 86 Mass. App. Ct. 108, 117 (2014). "A plaintiff need not wait until an assault occurs to seek protection" under G. L. c. 209A, § 1. Id. Further, E.P.’s argument discounts a July 2019 incident where E.P. became angry with L.T. during a drop off of their daughter. He then opened the screen porch door and hit her very hard in the arm. Contrary to E.P.’s argument, the judge was entirely permitted to consider this act of physical violence in determining whether L.T. has demonstrated a reasonable fear of serious physical harm. See Yahna Y., 97 Mass. App. Ct. at 187 ("[W]hen a plaintiff has suffered physical abuse, a judge may reasonably conclude that a c. 209A order is necessary ‘because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent’ " [citation omitted]). See also Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).
E.P. denies that this incident occurred. In his brief, he claims that L.T.’s "self-serving" testimony relating to this incident should be discarded. However, we emphasize that it was the role of the hearing judge to make such a credibility determination upon hearing L.T.’s testimony and observing her demeanor. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020). We afford the judge's credibility determinations the utmost deference. See id.
Notwithstanding the incident of physical violence in July of 2019 though, L.T.’s testimony as to E.P.’s erratic behavior in September of 2020 was nonetheless sufficient to demonstrate her reasonable fear of imminent serious physical harm. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020) ("for the plaintiff's fear of imminent serious physical harm to be reasonable, it is not necessary that there be a history - or even a specific incident of physical violence"). Following the escalating child custody dispute, E.P. began to exhibit an increasing hostility and anger towards L.T., which boiled over into the incident of verbal abuse and threats described above. From such erratic and hostile behavior, the judge was permitted to conclude that L.T. had a reasonable fear of imminent serious physical harm. See Ginsberg, 67 Mass. App. Ct. at 143-147 (husband's increasingly out-of-control anger and rage, resulting in incident of verbal abuse, deemed sufficient to justify ex-wife's reasonable fear of imminent serious physical harm). See also Noelle N., 97 Mass. App. Ct. at 665 ("erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension that force might be used" [quotation and citation omitted]).
At bottom, our role as a reviewing court is not to reassess credibility determinations made by the hearing judge, nor is it to decide whether we would have issued the extension of the 209A order in the first instance. See Yahna Y., 97 Mass. App. Ct. at 185 ("We accord the credibility determinations of the judge who heard the testimony of the parties ... [and] observed their demeanor, ... the utmost deference" [citation omitted]). Accordingly, where the record supports the judge's determination that L.T. was reasonably in fear of imminent serious physical harm, we discern neither an error of law, nor an abuse of discretion.
Order dated November 5, 2020, extending G. L. c. 209A order affirmed.