Opinion
20-P-1093
01-26-2022
S.D. v. B.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (father) appeals from an order of a District Court judge granting the plaintiff (mother) a six month extension of an abuse prevention order under G. L. c. 209A. The father contends that the judge erred or abused her discretion by extending the order because the mother failed to demonstrate a reasonable fear of imminent serious physical harm, her allegations of past abuse were not credible, and the judge was biased against him. We affirm.
Background. The testimony at the hearing after notice, supplemented by the mother's affidavit, which she affirmed under oath at the hearing, established the following. The father and mother dated for seven years and had two children together. In 2017, after an eight-day trial, a Probate and Family Court judge awarded the father legal and physical custody of the children and allowed the father to relocate with them to California.
The hearing took place by telephone five weeks after the judge granted the initial ex parte order. The first scheduled hearing was continued for two weeks because the father submitted "voluminous documentation" on the day of the hearing. That hearing was continued for one more week at the mother's request, over the father's objection.
When the parties' daughter turned eighteen, she returned to Massachusetts to live with the mother. In July 2020, while the daughter was quarantined for two weeks in the mother's home (presumably because of COVID-19 prevention protocols in place at the time), the mother noticed a car "stationed" for hours at the gas station facing her home. She learned from her next door neighbor and from a gas station employee that the car belonged to a private investigator, whom she believed was hired by the father. She further testified that she had been watched and followed in her car by a private investigator eighteen months before this incident; she provided a video recording of the car following her.
The father denied any knowledge of the cars outside the mother's house or following her around, and his attorney argued that even if the father had hired a private investigator, doing so is not "against the law" and is common in probate and family court matters.
The mother testified that the father had been physically and verbally abusive during their relationship. He kicked, shoved, and strangled her, and once cracked her collar bone. He threatened her if she wanted to go out with certain friends, and twice he would not let her leave the bedroom. She admitted that this abuse had taken place about twenty years before, that she never reported any of the incidents to the police, and that the father had not lived in Massachusetts for ten years. When confronted with the finding of the Probate and Family Court judge that "[n]o evidence at trial [in 2016] suggested that father has ever physically abused mother," she admitted that she had not presented any such evidence, but explained that she had been told that evidence of past abuse could not be raised and had no bearing on the probate matter regarding the custody of the children.
The mother testified that the presence of the private investigator triggered her posttraumatic stress disorder, caused panic attacks, and affected her physical and mental well-being. She stated in her affidavit, "I fully believe he will not stop trying to hurt me -- using my anxiety & PTSD against me."
The father testified that he never abused the mother, never threatened her, had nothing to do with the cars watching and following her, and, living 3,000 miles away, wanted nothing to do with her.
The judge credited the mother's testimony in full, including her "concerns of serious imminent physical harm," "her testimony regarding her past history with the defendant," her claims regarding private investigators following her, her explanation why she did not provide evidence of abuse at the child custody trial, and "her fear of -- and the medical issues she has been suffering from as a result of that." The judge extended the ex parte order for six months.
Discussion. The requirements for obtaining a c. 209A order are well established. See G. L. c. 209A, § 3 ; E.C.O. v. Compton, 464 Mass. 558, 562-563 (2013) ; G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018). "We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law." E.C.O., supra at 561-562.
We agree with the father that the evidence at the hearing did not support the requirements for issuing an order under the second definition of abuse, "placing another in fear of imminent serious physical harm." G. L. c. 209A, § 1 (b ). To obtain a c. 209A order under this definition of abuse, the applicant "must show both that she is currently in fear of imminent serious physical harm, and that her fear is reasonable." Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186 (2020). While the mother's testimony established, in a colloquial sense, that private investigators were "stalking" her, she did not state or imply that she feared being physically assaulted by the father or the private investigators, nor did her testimony suggest that such fear would have been reasonable.
However, abuse is also defined as "attempting to cause or causing physical harm." G. L. c. 209A, § 1 (a ). "With respect to protection from past physical abuse under § 1 (a ), we have held that a plaintiff does not need to prove a reasonable fear of imminent future physical abuse to obtain relief." Yahna Y., 97 Mass. App. Ct. at 186. When "abuse" is caused by past physical harm, "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." Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014) (abuse prevention order warranted even where defendant was incarcerated). In making this assessment, the judge may consider, inter alia, "ongoing child custody or other litigation that engenders or is likely to engender hostility, [and] the parties' demeanor in court." Id., quoting Iamele v. Asselin, 444 Mass. 734, 740 (2005).
The judge specifically credited the mother's claims of past physical abuse and her explanation why she did not provide evidence of those claims in the Probate and Family Court. "We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference." E.C.O., 464 Mass. at 562, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). The judge's findings are supported by the record and do not leave us "with the definite and firm conviction that a mistake has been committed." Marlow v. New Bedford, 369 Mass. 501, 508 (1976), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948) (defining "clearly erroneous"). In light of the father's past physical abuse of the mother, and given the history of the parties' relationship, the ongoing dispute manifested by the daughter's move and the presence of private investigators, and the judge's observations of how the parties conducted themselves during the hearing, the judge could reasonably conclude that the mother was still suffering from past abuse and reasonably remained in fear of the father. See Yahna Y., 97 Mass. App. Ct. at 187 ; McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-734 (2016).
We recognize that the physical abuse of the mother took place twenty years before the hearing and that the father had resided in California for ten years. However, we have affirmed the entry of a c. 209A order on behalf of a plaintiff who was a freshman in college based on sexual abuse that occurred when she was in the sixth and seventh grades. See Yahna Y., 97 Mass. App. Ct. at 185. And in Vittone v. Clairmont, 64 Mass. App. Ct. 479 (2005), we affirmed the entry of a permanent c. 209A order even though the initial order lapsed around eight years earlier and the defendant had been incarcerated in the interim. Based on the factual findings made by the judge, we are constrained to conclude that the judge did not make "a clear error of judgment in weighing the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives." G.B., 94 Mass. App. Ct. at 393, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Finally, we discern no bias. Given the pandemic and the difficulties engendered in convening a hearing electronically with the parties and their attorneys in diverse locations, as well as the father's voluminous submission on the day of the first scheduled hearing, see note 1, supra, the judge did not abuse her discretion in granting continuances of the hearing after notice. See Beninati v. Beninati, 18 Mass. App. Ct. 529, 534-535 (1984). The judge likewise acted within proper bounds when she directed the father -- who began his testimony by arguing that the mother was using the court "to basically terrorize me and my family out of retaliation because I got custody of both of the kids" -- to address the mother's factual allegations.
August 19, 2020, extension order affirmed.