Opinion
19-P-1790, 20-P-1301
06-16-2021
M.M. v. E.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In these two cases that have been paired on appeal, the defendant (to whom we refer as the wife), appeals from two separate abuse prevention orders. In appeal 19-P-1790, the wife appeals from a one-year abuse prevention order entered on September 13, 2019 by a judge of the Quincy District Court in docket 1856RO000070 (2019 order). In her appeal of the 2019 order, the wife argues (1) that there was insufficient evidence to support issuing the order, and (2) that the order should be vacated because the judge did not make the specific findings required for mutual restraining orders. In appeal 20-P-1301, the wife appeals from a one-year abuse prevention order entered on September 25, 2020 by a different judge of the Quincy District Court in docket 2056RO000731 (2020 order). In her appeal of the 2020 order, the wife argues that the evidence was insufficient to issue the order. We affirm.
Although only two orders are before us in these appeals, there are three relevant restraining order actions between these two parties in the Quincy District Court, the relevant procedural histories of which we summarize as follows.
| Date | Husband's Complaint 1856RO000070 | Wife's Complaint 1856RO000929 Husband's Complaint 2056RO000731 | |
|---|---|---|---|
| 1/23/18 | 209A Complaint | ||
| 1/23/18 | Ex parte order issued | ||
| 1/24/18 | One-year order (to 1/18/19) issued after hearing with both parties present | ||
| 4/13/18 | Order amended in part | ||
| 9/7/18 | Original terms of order reinstated | ||
| 9/10/18 | 209A Complaint; ex parte order not issued, wife directed to appear at hearing | ||
| 9/14/18 | One-year order (to 9/13/19) issued after hearing with both parties present (Stapleton, J.) | One-year order (to 9/13/19) issued after hearing with both parties present (Stapleton, J.) | |
| 10/25/18 | Modification to order | ||
| 3/20/19 | Order amended by stipulation | Order amended by stipulation | |
| 7/12/19 | Modification to order | ||
| 8/6/19 | Order amended by stipulation | Order amended by stipulation | |
| 9/13/19 | One-year order (to 9/11/20) issued after hearing with both parties present (McManus, J.) | One-year order (to 9/11/20) issued after hearing with both parties present (McManus, J.) | |
| 10/4/19 | Notice of appeal filed | ||
| 9/11/20 | One-year order (to 9/20/21) issued after hearing with both parties present (Orfanello, J.) | ||
| 9/14/20 | 209A Complaint; ex parte order issued to 9/25/20 | ||
| 9/25/20 | One-year order (to 9/10/21) issued (Moriarty, J.) | ||
| 10/20/20 | Notice of appeal filed |
As evidenced by the fact that the March 20, 2019 and July 12, 2019 modifications to the restraining orders were made by a judge of the Probate and Family Court, it appears that there is also an action between the parties in that court.
We review the issuance or extension of a 209A order for abuse of discretion or other error of law and accord the credibility determinations of the judge utmost deference. Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020). The person seeking a c. 209A order has the burden of showing by a preponderance of the evidence that he or she is suffering from abuse. Id., citing Frizado v. Frizado, 420 Mass. 592, 596 (1995). Abuse includes, among other things, "attempting to cause or causing physical harm" and "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1. The plaintiff must show that the fear of imminent physical harm is reasonable, Iamele v. Asselin, 444 Mass. 734, 737 (2005), which the judge determines based on the totality of the circumstances, Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009).
"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.’ Indeed, the nature and duration of a relationship, as well as any prior history of violence, threats, or hostility within it, serve as the necessary backdrop for reaching a proper understanding of more recent words and behavior as well as for assessing the reasonableness of an applicant's fear of imminent serious physical harm" (citation omitted).
Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487 (2005).
"Other factors that the judge should consider include, but are not limited to: the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties’ demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities ... and significant changes in the circumstances of the parties. No one factor is likely to be determinative. It is the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order, that govern" (citation omitted).
Iamele, supra at 740–741.
The wife argues that the 2019 and 2020 orders should not have issued because M.M. (husband) showed only "generalized apprehension," rather than an objectively reasonable fear of imminent serious physical harm. See Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 287 (2003) ("Generalized apprehension does not rise to the level of fear of imminent serious physical harm"). In light of the following, we disagree. As to the 2019 order, the husband's 2018 affidavit (filed at the time of his initial c. 209A complaint, and confirmed during the hearing on the 2019 extension) stated that the wife had "flipped out" after waking up, and threw various items at him. About one-half hour later, one of the children called, asking that the husband pick them up because the wife was punching and kicking them, and throwing a water bottle and lamp at them. The children had been locked out of the house, wearing only shorts and no shoes. The husband characterized "this" as an ongoing issue. The husband also averred that the wife had previously thrown objects at him and the children, including, shoes, phones, pans, scissors, drinks, and a fork, and that she had broken a mirror and car windshield wiper. The husband further averred that the wife told the children to kill themselves, and that she hated them and the husband.
In addition, at the 2019 extension hearing, the husband testified that the wife had threatened to kill him and to have him killed, that the children were in daily counseling at school because of their fear that the order would not be extended, and that the wife continued to show up at the husband's workplace -- including as recently as the previous week. The judge could consider that, at the time of the extension hearing, the parties were recently divorced, and that a judge of the Probate and Family Court had entered an order granting the husband custody of the children and preventing the wife from contacting them, except at the children's initiative. The judge could also consider that there had been multiple previous hearings, resulting in either extensions of the initial ex parte restraining order or in modifications, and that the wife had appealed none of those orders. The judge was entitled to accept that the earlier orders rested on sufficient evidence. In short, the judge was permitted to credit the husband's testimony and, if she did so, the judge could have found that husband and the children had suffered multiple acts of abuse by the wife that precipitated the initial restraining order, that the wife had threatened to kill the husband or to have him killed, and that the week before the hearing (and despite the last restraining order still being in place) the wife had gone to the husband's place of work.
The wife has not included a copy of the Probate and Family Court order.
Having not been appealed, the sufficiency of the evidence underlying the earlier order is not now open to collateral attack.
For many of the same reasons, the judge who issued the 2020 order could also permissibly conclude that the husband's fear of serious physical harm was objectively reasonable. Although it is true that, at the 2020 hearing, the husband admitted that there had been no contact between the parties the previous year, "[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order...." G. L. c. 209A, § 3. Moreover, the judge could credit the husband's testimony at the 2020 hearing that the wife had threatened to kill him, that she had a history of abusing their children, and that the children were scared of her. The judge could also infer that the husband remained in fear from his testimony that he and the younger daughter stayed in the house when the restraining order lapsed over the weekend "so [the wife] didn't pull anything." Furthermore, the husband testified that the wife had contacted their older daughter by mail at school and that the daughter was "scared that [the wife] knows where she is" and wanted to obtain her own restraining order against the wife. This is not a situation, such as in Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002) -- to which the wife points -- where "[t]he plaintiff failed to present any evidence that the abuse might resume if the c. 209A order was not issued." Id.
With respect to both the 2019 and the 2020 orders, the wife argues that there was evidence that she is a long-term abuse victim and that the husband had caused her significant physical injury. These are serious and troubling accusations, but they do not automatically preclude a finding of mutual abuse. Rather, as we discuss next, they implicate the issuance of the reciprocal restraining order the wife obtained against the husband in the third action below. See note 1, supra.
The wife argues that the 2019 and 2020 orders in favor of the husband are mutual with the restraining orders that the wife obtained against the husband in docket number 1856RO000929 covering the same periods of time. Even if, as here, orders are entered in different actions, they may be mutual if they impose similar restrictions against both parties. See Uttaro v. Uttaro, 54 Mass. App. Ct. 871, 874-875 (2002) ; Sommi v. Ayer, 51 Mass. App. Ct. 207, 209-210 (2001). The wife is correct that in such circumstances, the judge must make specific written findings whenever mutual abuse prevention orders are issued. G. L. c. 209A, § 3. See Massachusetts Abuse Prevention Proceedings Guideline 6:07. The wife argues that no such findings were made with respect to the 2019 order, and on that basis asks that we vacate the 2019 order. This argument, though, is moot because the 2019 order has been superseded by the 2020 order, which the wife has not challenged on this basis. See V.M. v. R.B., 94 Mass. App. Ct. 522, 525 (2018). And the issue does not fall within the exception for issues of public importance that are capable of repetition, yet evade review. See Matter of Sturtz, 410 Mass. 58, 60 (1991). Instead, should the husband seek to extend the 2020 order, or the wife seek to extend the current order running in her favor in docket 1856RO000929, findings can -- and should -- be made at that time.
We note that the wife has not provided copies of the pertinent extension orders in 1856RO000929, and so although we accept her representation that they are the same as the provisions of the orders entered in favor of the husband, we cannot confirm them on this record.
At oral argument, counsel for the wife stated that she wished to make this argument with respect to the 2020 order as well. But an argument may not be raised for the first time at oral argument. See Board of Reg. in Med. v. Doe, 457 Mass. 738, 743 n.12 (2010) (argument raised for first time at oral argument is waived).
Order dated September 13, 2019, affirmed.
Order dated September 25, 2020, affirmed.