Opinion
11-P-2
11-23-2011
S.C. [FN1] v. M.C.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the extension of an abuse prevention order pursuant to G. L. c. 209A, § 3, following a complaint brought by the plaintiff. He contends that, even if the plaintiff was placed in fear of imminent serious physical harm, the judge did not find that the plaintiff's fear was reasonable, and it was not in fact reasonable. Because the judge, in issuing the extension, implicitly found that the statutory requirements were met and credited the plaintiff's testimony, and her testimony, if believed, was sufficient to establish reasonable fear, we affirm.
The defendant also purports to challenge the July 16, 2010, ex parte abuse prevention order. 'Assuming that such a separate challenge may be maintained, we need not address the issue because the defendant did not file a notice of appeal with respect to the ex parte order.' Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.2 (2006) (citations omitted).
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On July 30, 2010, the judge heard testimony from the plaintiff and the defendant and found that extension of the abuse prevention order for one year was justified. The plaintiff testified that the defendant emotionally dominated her throughout their marriage and frequently told the plaintiff that he would respond disproportionately to any resistance to his demands, and, in particular, that he had said 'more times [than she] could count' that he would kill her if she left him. She also recounted one incident, weeks earlier, in which the defendant used force to attempt to coerce the plaintiff to engage in sexual relations, and then sexually assaulted her. The defendant denied these allegations. The judge stated, 'I am going to extend the restraining order. I do find based on the testimony here that [the plaintiff] is in fear of imminent serious physical harm from the defendant . . . .' She did not make any further findings of fact or conclusions of law.
We review the extension of an abuse prevention order for abuse of discretion. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). Credibility determinations by the judge are entitled to 'the utmost deference.' Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). In order for the extension of an abuse prevention order to be appropriate, the plaintiff must show by a preponderance of the evidence that it is necessary to protect her from the likelihood of abuse by the defendant. See Iamele v. Asselin, 444 Mass. 734, 740 (2005). 'Abuse' is defined to include, as pertinent here, either 'placing another in fear of imminent serious physical harm' or 'causing another to engage involuntarily in sexual relations by force, threat or duress.' G. L. c. 209A, § 1, as amended through St. 1990, c. 403, § 2. If the order is based on fear of imminent harm, that fear must be objectively reasonable. See Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). However, '[i]f the plaintiff [suffers] from . . . involuntary sexual relations . . . there is no question that an extension should be granted.' Iamele v. Asselin, supra at 740 n.3.
The defendant asserts that the abuse prevention order must be vacated because the trial judge found that the plaintiff was in fear of imminent serious bodily harm, but did not explicitly find that the fear was reasonable. 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. See Ginsberg v. Blacker, supra (affirming extension where judge made no oral or written findings, but '[t]he judge's questions during the hearing and her ultimate decision make it clear that she credited Ginsberg's version of the evidence and rejected Blacker's conflicting testimony'). Contrast Iamele v. Asselin, supra at 741 (vacating and remanding where judge found that plaintiff was in fear, but, without further explanation, refused to extend c. 209A order, and it was not clear whether judge had applied proper standard). Based on her findings and the fact that she extended the c. 209A order, we infer that the judge substantially credited the plaintiff's testimony and ruled that the plaintiff had met her burden.
The defendant also argues that the plaintiff's fear of imminent harm was objectively unreasonable. However, the plaintiff testified that the defendant had many times threatened to kill her if she ever left him, and at the time she applied for the abuse prevention order, she had recently left the marital home and filed for divorce. She further testified that the defendant had begun behaving erratically and went to several of her friends' houses attempting to find her after she went into hiding. Particularly in light of the incident of violent sexual assault that the plaintiff described, it would have been reasonable for her to fear that the defendant intended to act on his threats by finding her and killing or harming her. It is immaterial that the plaintiff did not seek an abuse prevention order earlier. The evidence supports a finding that the defendant placed the plaintiff in reasonable fear of imminent serious physical harm. The judge thus did not abuse her discretion in extending the order.
Order dated July 30, 2010, affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),