Opinion
18-P-1181
04-26-2019
S.M. v. D.M.
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 defendant appeals from a January 16, 2018, order of the District Court, extending for two years an abuse prevention order issued on December 30, 2016, and extended for one year on January 13, 2017. See G. L. c. 209A. We affirm.
Though much of the defendant's brief challenges the sufficiency or even the credibility of the evidence to support the 2016 issuance of the order or the 2017 extension, the present appeal does not place either question before us. See Iamele v. Asselin, 444 Mass. 734, 740 (2005). Instead, our task is to consider whether the judge abused his discretion in concluding that the plaintiff had, at the time of the 2018 extension hearing, a reasonable fear of imminent serious physical harm. See id. at 735. While violations of a restraining order are a factor to consider in a request for an extension, the absence of violations does not by itself demonstrate that a restraining order is no longer needed to protect the plaintiff. Id. at 738. Instead, the judge must consider "the totality of the circumstances of the parties' relationship." Id. at 740.
In the present case, the judge heard evidence at the 2018 hearing that the defendant had refused to cooperate with the plaintiff's attempts to serve him with a complaint for divorce, and had communicated with the plaintiff's mother on numerous occasions in an effort to dissuade the plaintiff from proceeding with a divorce. Though the defendant asserted that he was willing to cooperate with the plaintiff's intention to dissolve their marriage, he offered similar assurances at the 2017 hearing, and the judge accordingly was entitled to discredit his claims of cooperation. Coupled with the plaintiff's testimony that she remained in fear of physical harm at the hand of the defendant, the judge's observation of the plaintiff's demeanor at the 2018 hearing, and the defendant's abusive conduct giving rise to the 2016 order, the judge did not abuse his discretion in extending the order. We accordingly affirm.
We defer to the credibility assessments by the judge in any event, even were there no independent basis to explain them. See Johnston v. Johnston, 38 Mass. App. Ct. 531, 536 (1995).
Order dated January 16, 2018, affirmed.
By the Court (Green, C.J., Neyman & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 26, 2019.