Opinion
21-P-269
06-16-2022
S.S. v. D.S.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, D.S., appeals from a one-year extension of an abuse prevention order issued in 2021 pursuant to G. L. c. 209A. The plaintiff, S.S., obtained an initial ex parte order; the order was extended multiple times. The defendant contends that the judge erred in extending the order in 2021 because (1) the original order was predicated on false allegations of domestic abuse; (2) the plaintiff failed to establish facts showing a reasonable and ongoing fear of imminent serious physical harm; and (3) the judge failed to properly consider the totality of the circumstances of the parties' relationship in issuing the extension. We affirm the extension of the order.
Discussion.
1. Initial order.
D.S. argues that the motion judge improperly relied on false allegations of abuse which formed the basis for the initial G. L. c. 209A order. The request for an extension is "viewed in the light of the initial abuse prevention order," S.V. v. R.V. 94 Mass.App.Ct. 811, 813 (2019), quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005), but we do not revisit the findings underlying the initial order. See Iamele, 444 Mass. at 740 ("The judge . . . consider[s] the basis for the initial order in evaluating the risk of future abuse should the existing order expire. This does not mean that the restrained party may challenge the evidence underlying the initial order."). Accordingly, D.S. may not challenge the validity the initial abuse prevention order in this appeal.
2. Fear of imminent serious physical harm.
D.S. also contends that the circumstances do not warrant an extension of the 209A order because the plaintiff failed to meet her burden to establish a reasonable fear of imminent serious physical harm. "Whether seeking an initial abuse prevention order under G. L. c. 209A or a later extension, the burden is on the plaintiff to establish facts justifying issuance, or continuance, by a preponderance of the evidence." Callahan v. Callahan, 85 Mass.App.Ct. 369, 372 (2014). "The standard for obtaining an extension of an abuse prevention order is the same as for an initial order -- 'most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief ... is sought.'" S.V., 94 Mass.App.Ct. at 813, quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014).
However, where the protection order involves "past physical abuse under [G. L. c. 209A] § 1 (a.), we have held that a plaintiff does not need to prove reasonable fear of imminent future physical abuse to obtain relief." Yahna Y. v. Sylvester S., 97 Mass.App.Ct. 184, 186 (2020). "[W]hen a plaintiff has suffered physical abuse, a judge may reasonably conclude that [an extension of] a c. 209A order is necessary 'because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.'" Id. at 187, quoting Callahan, 85 Mass.App.Ct. at 374. We review the extension "for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013).
The plaintiff testified that she feared imminent serious physical harm or abuse based on threats made by the defendant, and past physical abuse, that occurred over a period of years. We note that D.S. admitted that he hit S.S. on one occasion. The judge, in issuing the order, implicitly or explicitly credited S.S.'s testimony, and found that her fear was reasonable in the context of past abuse. Because the judge credited the plaintiff's testimony, the evidence was adequate to justify the extension order. See Iamele, 444 Mass. at 740-741.
D.S. has not provided a complete copy of the extension order and we therefore do not have a full record of the judge's findings.
3. Totality of the circumstances.
In assessing the likelihood of ongoing abuse, the "judge must consider the totality of the circumstances of the parties' relationship." Iamele, supra at 740. Factors "that the judge should consider include, but are not limited to: the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties' demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities . . ., and significant changes in the circumstances of the parties. No one factor is likely to be determinative." Id.
In addition to the 2017 incident, the judge was permitted to credit testimony that the defendant violated the protective order by entering the plaintiff's barn and house, and by sending the plaintiff multiple unauthorized text messages; and, that the parties were in the midst of a contentious divorce involving substantial assets and custody of two children. The judge was also permitted to credit a police report that two of the plaintiff's chickens' necks were snapped. The judge did not abuse her discretion in extending the abuse prevention order. See G.B. v. C.A., 94 Mass.App.Ct. 389, 394-396 (2018).
S.S. had testified that on one occasion the defendant had threatened to break her neck if she tried to call 911.
The defendant nevertheless claims that the judge failed to consider the totality of the circumstances of the parties' relationship when issuing the extension order. This argument is based on the premise that the judge erred in not crediting D.S. A reviewing court grants the "utmost deference" to "the credibility determinations of the judge who heard the testimony of the parties . . . [and] observed their demeanor" (quotations and citations omitted). Noelle N. v. Frasier F., 97 Mass.App.Ct. 660, 664 (2020). The judge considered all of the evidence, including the testimony of the defendant, and credited the testimony of the plaintiff. There was a reasonable basis for the order and we discern no error in the judge's determination that an extension of the abuse protection order was warranted. See G.B., 94 Mass.App.Ct. at 396.
Order dated February 1, 2021, extending G. L. c. 209A order affirmed.
The panelists are listed in order of seniority.