Opinion
14-P-431
02-11-2015
MELISSA SANTSAVER v. JAMES R. SANTSAVER, SR.
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 husband, James Santsaver, appeals after the continuance of an abuse prevention order under G. L. c. 209A, arguing that the preliminary order should not have been issued ex parte and that the order should not have been extended thereafter. A review of the record shows that there was sufficient evidence for the judge to conclude that the wife was "suffering from abuse" by the husband and to issue the preliminary ex parte order. Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting from G. L. c. 209A, § 3. The record does not establish, however, that the evidence was sufficient to warrant the continuation of the order. See id. at 739 ("The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of 'abuse' . . ."). The wife testified at the extension hearing that she had moved out of the family home and that the son was in no danger from the husband. The wife also testified that the husband had not threatened her with physical harm. While the wife's fear of the possibility that the husband might transmit a sexually transmitted disease to her was not unreasonable, it was not an imminent danger. The wife had moved out of the family home and the parties were separated. There was no allegation that the husband had ever forced sexual relations on the wife. See id. at 741 ("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 governs" whether an order should be extended).
Ex parte abuse prevention order affirmed.
Order extending abuse prevention order vacated.
By the Court (Cypher, Fecteau & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: February 11, 2015.