Opinion
19-P-523
03-04-2020
S.J. v. B.H.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
B.H. (the father) appeals from an order extending an abuse prevention order issued pursuant to G. L. c. 209A (209A order), claiming that the evidence was insufficient to establish that S.J. (the mother) had an objectively reasonable fear of imminent serious physical harm. We affirm.
Background. The mother and father briefly dated in 2016. The relationship resulted in a child, born in July 2017, who resides with the mother and her child from another relationship. In September 2018, the mother and father "had been in conversations with a mediator, discussing custody issues" with respect to their child. The father was visiting the child every weekend but wanted additional time. His request was the subject of a mediation session which the mother and father were scheduled to attend on October 10, 2018.
On September 13, 2018, the father was visiting his child at the mother's home when he and the mother had a disagreement about the father's visitation rights. The father yelled at the mother and used "strong language" in front of the children. Thereafter, the mother called the father and asked him not to come to his next scheduled visit. During the telephone call, the mother "was discussing with [the father] that he couldn't be using that language in front of the kids," and the father "said he could and that it was okay for the kids to see [the mother] being yelled at, and that [the mother] in fact needed to stop caring so much about how [the father] treated [her]." The father then said that he would "hire a trained assassin to take [the mother] out" if the father felt it was "necessary" to ensure that he got the visitation he desired at the upcoming mediation session. The mother asked the father if he was serious; the father "said yes."
Two weeks later, at the mediation session, the parties "were at an impasse with discussing the child." The mother felt she was in danger because of the father's threat to hire an assassin, and the father refused to discuss visitation if the mother felt she was in danger. The father also refused to discuss his comments. Ultimately, the father was not granted the visitation he sought. As he was leaving the mediation, the father "ominously said ‘good luck’ in a creepy way," causing the mother to be scared that the father "might feel that he could do something to [her] without other witnesses knowing about it," such as following through on his threat to hire an assassin. The mother contacted the police, and applied for a 209A order, which a District Court judge granted on an emergency basis -- the same judge who would later conduct the extension hearing. The order prohibited the father from contacting or abusing the mother or her children, including the parties' child.
Both the father and mother testified at the extension hearing. The judge credited the mother's testimony, did not credit the father's, and ordered that the 209A order be extended for one year. The father timely appealed.
At some point thereafter, according to defense counsel's representations at oral argument, the father obtained a modification of the 209A order in the Probate and Family Court which allowed him to have contact with his child. As to the mother, the 209A order expired by its own terms on October 23, 2019, but that fact does not render the father's appeal moot. See E.C.O. v. Compton, 464 Mass. 558, 561 n.12 (2013).
Standard of review. We review the judge's decision to extend the 209A order for an abuse of discretion, bearing in mind that his credibility determinations are entitled to "the utmost deference." E.C.O., 464 Mass. at 562, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). A judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Discussion. 1. The mother's burden. To be entitled to an extension of the 209A order, the mother was required to show, by a preponderance of the evidence, that she currently had an objectively reasonable fear of imminent serious physical harm from the father. See Iamele v. Asselin, 444 Mass. 734, 739-740 (2005) ; Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009). In deciding whether the mother met this burden, the judge was required to "look to the [father]'s words and actions, not standing alone or in a vacuum, but in the context of the ‘attendant circumstances.’ " Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486-487 (2005), quoting Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).
The judge credited the mother's testimony that the father "had shown that he felt that it was acceptable to be aggressive toward" the mother by yelling at her and using "strong language" when he disagreed with her position regarding custody of their child. The father then threatened to hire an assassin to kill the mother if he did not prevail on the issue of visitation at the mediation. Contrast Keene v. Gangi, 60 Mass. App. Ct. 667, 669 (2004) (plaintiff's fear not objectively reasonable where defendant did not threaten plaintiff with physical harm). The fact that the father had never physically harmed the mother does not remove the father's conduct and words "from the category of abuse." Ginsberg, 67 Mass. App. Ct. at 145. Nor does it matter that the mother did not seek a 209A order immediately after the father made the threat. See Keene, supra at 669-670 (conclusion that plaintiff had no fear of imminent serious physical harm buttressed by her delay in seeking 209A order). Although the mother was scared of the father's threat right after he made it, she did not fear imminent harm until the father, not having obtained the visitation he sought at the mediation, "ominously" said to her, "good luck." Contrast Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002) (plaintiff's "subjective and unspecified fear" of defendant insufficient to constitute "abuse" where "she identified no particular menacing language or gesture suggesting she was in imminent peril of physical force being used against her"). The father's "true threat," O'Brien v. Borowski, 461 Mass. 415, 423 (2012), made in the context of an ongoing child custody dispute that clearly had engendered hostility, see Iamele, 444 Mass. at 740, "serve[s] as the necessary backdrop for reaching a proper understanding of" the father's conduct and words at the mediation. Vittone, 64 Mass. App. Ct. at 487.
This is not a case where the party seeking a 209A order testifies only to "[g]eneralized apprehension, nervousness, feeling aggravated or hassled." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). The mother testified that the father's conduct before the mediation scared and upset her. His comment and conduct at the mediation then caused her to fear that the father "would carry through his stated intention to kill her." Commonwealth v. Robicheau, 421 Mass. 176, 182 (1995). The judge credited the mother's testimony, as was within his province, and did not abuse his discretion when he concluded that the father's conduct "was not only ‘menacing by objective standards,’ but created an apprehension of imminent serious physical harm on the part of [the mother] that was objectively reasonable" (citation omitted). Ginsberg, 67 Mass. App. Ct. at 143.
2. The father's right of visitation. The judge did not identify any "independent support" for the order prohibiting the father from contacting his child, and there is no evidence that he considered the father's relationship with the child apart from the mother's request that the father stay away from her. See Smith v. Joyce, 421 Mass. 520, 523 (1995). This claimed defect was not brought to the judge's attention at the extension hearing, and we decline to address it here because it appears undisputed that the 209A order was modified to allow the father to have contact with his child. See Vittone, 64 Mass. App. Ct. at 481 n.3. Thus, although the father has a "surviving interest" in establishing that the 209A order was not lawfully issued with respect to the child, Wooldridge, 45 Mass. App. Ct. at 638, our conclusion that the order properly issued with respect to the mother, and therefore is appropriately entered and maintained in the Commonwealth's domestic violence records system, id., renders that issue moot.
Order dated October 23, 2018, affirmed.