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Silva v. Callahan

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 20, 2012
No. 11-P-794 (Mass. Apr. 20, 2012)

Opinion

11-P-794

04-20-2012

RODOLFO SILVA v. TAMMI CALLAHAN.


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 from the issuance of an ex parte temporary c. 209A order, as well as to the subsequent order extending it for ninety days. We reverse.

The plaintiff has not filed a brief on appeal.

Although the temporary order expired April 14, 2011, and the extension expired on July 15, 2011, this appeal is not moot. Dollan v. Dollan, 55 Mass. App. Ct. 905, 905 n.2 (2002). The defendant has a continuing interest in establishing that the orders were not lawfully issued. The defendant could be adversely affected by having the 209A order on her record in the event of a future application for a 209A order or in other legal proceedings. See Frizado v. Frizado, 420 Mass. 592, 593-594 (1995); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).

Callahan argues that the judge erred by issuing the temporary 209A order and extension because the evidence failed to show a substantial likelihood of immediate danger of abuse. In deciding whether to issue a 209A order, '[a] judge must consider carefully whether serious physical harm is imminent . . . .' Smith v. Joyce, 421 Mass. 520, 523 n. 1 (1995). 'Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm.' Wooldridge v. Hickey, supra at 639, quoting from Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). '[General Laws] c. 209A, § 1(b), focuses on preventing imminent serious physical harm . . . .' Dollan v. Dollan, supra at 906. Callahan's text messages, while apparently containing insulting language and calling Silva a 'lying son of a bitch,' cannot reasonably be said to have placed Silva 'in fear of imminent serious physical harm' as required under c. 209A. See Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002). This is particularly so given the complete absence of evidence that there was a history of physical violence by Callahan, or threats of physical violence. Indeed, immediately after reading the text messages, the judge decided that the order would not be extended. The judge changed her mind after Callahan stated that she would seek a restraining order as well. The judge made no inquiry into Callahan's basis for seeking a restraining order. In any event, whether Callahan intended to obtain a restraining order was irrelevant to the question whether Silva was entitled to one.

The contents of the text messages are not in the record before us. However, we note that the motion judge was able to read the text messages at the extension hearing and stated, 'I don't see anything in here that looks like she is harassing you. It looks like she's trying to get certain information. There was one point when she does call you, you know, 'a lying son of a bitch,' . . . On the very last one she said some bad things.'

The orders entered on March 31, 2011, and April 14, 2011, are vacated, and all records of the restraining orders against Callahan shall be expunged.

So ordered.

By the Court (Kantrowitz, Wolohojian & Sullivan, JJ.),


Summaries of

Silva v. Callahan

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 20, 2012
No. 11-P-794 (Mass. Apr. 20, 2012)
Case details for

Silva v. Callahan

Case Details

Full title:RODOLFO SILVA v. TAMMI CALLAHAN.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 20, 2012

Citations

No. 11-P-794 (Mass. Apr. 20, 2012)