Opinion
No. 15–P–1283.
09-27-2016
Renee PORTANOVA v. Zachary James ORME.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Zachary James Orme, appeals a District Court judge's decision to issue an abuse protection order pursuant to G.L. c. 209A, as it relates to the plaintiff, Renee Portanova, and her dog. On appeal, he claims that the plaintiff failed to prove, by a preponderance of the evidence, that she feared imminent serious physical harm from the defendant on her own behalf or her dog, and that the issuing judge failed to properly apply the statute. We affirm.
1. Plaintiff's protective order. The defendant claims that the plaintiff failed to demonstrate that she feared (from the defendant) the necessary level of abuse contemplated by the statute. We disagree.
Abuse, as defined by G.L. c. 209A, § 1(b), as appearing in St.1990, c. 403, § 2, occurs between household members when one “places another in fear of imminent serious physical harm,” among other situations. In seeking an initial order for relief from abuse, the plaintiff must show, by a preponderance of the evidence, “that he or she is currently in fear of imminent serious physical harm, as well as that the fear is reasonable.” Iamele v.. Asselin, 444 Mass. 734, 737 (2005) (emphasis original). To determine the reasonableness of a person's fear, courts consider “the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
Here, there was ample evidence to support the issuance of the abuse prevention order, which required the defendant to not contact or abuse the plaintiff. Disagreements between June 22 and June 23 had prompted the parties to end their four-month dating relationship. The defendant, on June 23, was still at the plaintiff's home in Somerville when she returned from work. He had damaged the home's interior and exterior, leading the plaintiff to call the police.
The defendant had agreed to move out of the home while the plaintiff was at work.
The purpose of an abuse prevention order under G.L. c. 209A is “to protect a plaintiff from the likelihood of abuse.” M.B. v. J.B., 86 Mass.App.Ct. 108, 117 (2014). While the defendant is correct in his assertions that the plaintiff never directly stated that she feared imminent physical harm and had never been physically abused by the defendant, the circumstances and her testimony support the judge's decision to issue the order.
In her initial complaint for protection from abuse, the plaintiff checked off that the defendant had “placed me in fear of imminent serious physical harm” and wrote that she was “fearful of [the defendant's] actions as demonstrated” on June 23. Upon seeing the defendant exiting her home on June 23, she contacted a neighbor for help rather than approach the defendant herself. Furthermore, the plaintiff testified that the defendant, during an argument on June 22, said things “that were intimidating,” and noted after the June 23 incident that “it seemed that [the defendant's] mental and emotional state had been compromised.” Those events all took place in the two days immediately preceding the District Court hearing, and courts have previously held “erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension that ‘force might be used.’ “ Parreira v.. Commonwealth, 462 Mass. 667, 673 (2012), quoting Commonwealth v.. Robicheau, 421 Mass. 176, 181–182 (1995). In light of the above evidence, the judge properly determined that the plaintiff sufficiently established that she was in fear of imminent serious physical harm at the hands of the defendant.
The defendant also claims that the judge employed the wrong standard in determining the reasonableness of the plaintiff's fear. We disagree. The defendant claims that the judge reached his decision based on whether a reasonable person would fear abuse under G.L. c. 209A, § 1, while the appropriate standard is whether the fear the plaintiff felt was reasonable. See Gordon, supra. Given the presumption that the judge correctly instructed himself on the burden of proof, see Commonwealth v. Kopsala, 58 Mass.App.Ct. 387, 393 (2003), we fail to see how the subtle difference in any way prejudiced the defendant. Rather, the mistake, if any, was nothing more than a slip of the tongue.
2. No-contact order for dog. At the plaintiff's request, the judge also extended the no-contact order to the plaintiff's dog. The plaintiff stated that the defendant had forged a relationship with the dog, and that she wished for that relationship to end, even if the defendant were to see the dog while in the care of someone other than the plaintiff. Under G.L. c. 209A, § 11, inserted by St.1990, c. 193, § 50, a court may extend an order to prevent the defendant “from abusing, threatening, taking, interfering with, transferring, encumbering, concealing, harming or otherwise disposing of” a domesticated animal. The defendant claims that the judge's decision to order the defendant not to contact the plaintiff's dog was in error because the judge's order did not particularly mention one of the activities enumerated in the statute. While the judge did not specifically cite one of the statutory examples, it is apparent from the record that the plaintiff's request was to prevent the defendant from “interfering with” her dog. G.L. c. 209A, § 11. There was no error in extending the protective order to the plaintiff's dog.