Opinion
14-P-1553
11-16-2015
ANNE-MARIE RAJGURU v. SANDEEP RAJGURU.
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, Sandeep Rajguru, appeals from the issuance of a one-year extension of a temporary abuse prevention order. See G. L. c. 209A, § 3. Sandeep contends that the judge erred in issuing the order where the judge relied solely on evidence that supported the issuance of an earlier abuse prevention order and the plaintiff failed to provide sufficient evidence to support a new finding of abuse. We affirm.
We refer to the parties by their first names for ease of reference.
The defendant also appeals from the issuance of the temporary abuse prevention order that preceded the extension. See G. L. c. 209A, § 4. Because the order extending the temporary order was granted, and the issues on appeal are the same, we do not separately consider the preceding temporary order.
Discussion. This case is controlled in all material respects by Callahan v. Callahan, 85 Mass. App. Ct. 369 (2014). In Callahan, this court held that "[a]lthough a person seeking an abuse prevention order (and extension) based on fear of imminent serious physical harm must always show that he or she is currently in fear of imminent serious physical harm, and that such fear is reasonable, . . . the same is not true of a person who seeks an order (or extension) based on having already been subject to physical harm. In that circumstance, the abuse is the physical harm caused, and a judge may reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent." Id. at 374 (quotations omitted). See and compare G. L. c. 209A, § 1(a), (b).
Here, Anne-Marie sought the orders based on two previous assaults. In August, 2012, Sandeep threw Anne-Marie onto the floor and caused her to bleed. In September, 2012, Sandeep choked Anne-Marie in front of their daughter. After the August and September, 2012, incidents, Anne-Marie was granted a restraining order against Sandeep, which he violated. Subsequently, Sandeep tendered a plea to two counts of assault and battery and one count of violating a restraining order, at which time he was placed on probation; stay away orders were issued as a condition of probation, and the parties agreed to vacate the restraining order that had been in effect. Anne-Marie sought the temporary abuse prevention order on the day before Sandeep's conditions of probation expired. Significantly, the judge found that Anne-Marie "relied on the strength of the probation conditions to protect her . . . [and] did not realize that in doing so[,] at the termination of probation, she would have no protection."
Here, as in Callahan, supra, there is a history of violence and physical abuse, and the judge reasonably concluded that there was a continued need for the order. In addition to the history of physical assault, which in and of itself was sufficient to support the order, the judge also found that Sandeep "doesn't quite get the message" that Anne-Marie feared contact with him, and that Sandeep continued to deny his guilt of the past acts of assault and battery, despite his previous plea to the offenses. The judge properly made a "discerning appraisal of the continued need for an abuse prevention order to protect [Anne-Marie] from the impact of the violence already inflicted[,] . . . consider[ed] the totality of the parties' relationship[,] and the legislative purpose of preserving 'the fundamental human right to be protected from the devastating impact of family violence.'" Ibid., quoting from Iamele v. Asselin, 444 Mass. 734, 740 (2005).
The judge found that Sandeep continued to get out of his car and stare at Anne-Marie when dropping off or picking up their daughter, conduct which Sandeep denied.
Abuse prevention orders entered pursuant to G. L. c. 209A are reviewed solely for an abuse of discretion or error of law. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000); Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 285 (2003); Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). The judge did not abuse his discretion, and there was no error of law.
Order issued May 21, 2014, affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 16, 2015.