Opinion
18-P-1236
06-13-2019
S.O. v. J.R.
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 the order extending a G. L. c. 209A abuse prevention order entered against him. He contends that the evidence presented at the hearing was insufficient to support a finding of abuse, as defined in G. L. c. 209A, § 1. We affirm.
Background. The defendant and the plaintiff were in a dating relationship from 2010 until February 2018. During their relationship, they moved into the same three-family apartment building, but resided in different apartment units. They also "got engaged," but "then [their] relationship dissolved." On June 10, 2018, the defendant observed the plaintiff with her new boyfriend. Thereafter, the defendant engaged in actions that led the plaintiff to seek an abuse prevention order.
On June 13, the defendant spoke with the plaintiff's boyfriend. The defendant also sent text messages to the plaintiff advising her that he knew where she parked her car and that she did not have any friends. On June 15, the defendant contacted the plaintiff's late husband's mother and told her to "[k]eep an eye out on [the plaintiff's children]." In mid-June, the cable connection to the plaintiff's apartment unit was disconnected. On June 17, the plaintiff found a "picture" of the defendant with a different woman and a note taped to the door of the plaintiff's apartment unit. On June 18, the plaintiff's boyfriend found a five-page letter on his car, which was addressed to the boyfriend and signed by the defendant. The letter included language to the effect that the plaintiff lives "on an old school Southie street and people on [the] street are watching [the plaintiff]." Also on June 18, two posters were taped to the walls in a common hallway; they stated, "[t]he miserable reality of living with [the plaintiff]. This is the reason I would not purchase property with her. I never knew when my stuff would be thrown out on the street."
The appellate record does not include copies of any of the documents referenced by the plaintiff, but the transcript reflects that the judge reviewed and considered the documents.
The contact between the defendant and the plaintiff's late husband's mother occurred prior to the ex parte hearing. However, the plaintiff did not testify about this incident until the subsequent extension hearing.
On June 19, 2018, the plaintiff sought an abuse prevention order, which a judge allowed after an ex parte hearing. On August 3, 2018, the plaintiff and the defendant appeared for a hearing on the requested extension of the abuse prevention order. During the hearing, the plaintiff testified to additional incidents that occurred after the June 19 hearing. Specifically, she testified that between June 19 and 20 her car "got keyed"; that on June 20 she received a mailed copy of a photograph of the defendant and another woman; that on June 25 the plaintiff's boyfriend received a religious flyer that she believed the defendant sent; and that on June 25 she received a card from the defendant with a "picture" of him and a note that "unfortunately references sex tapes that [the defendant] and [the plaintiff] had made in the past." The plaintiff further testified that she had moved out of the apartment building and that it seemed the defendant had "virtually disappeared since June."
The order was set to expire on July 5, 2018, but the judge granted the defendant's request to continue the extension hearing because he was out of the Commonwealth on July 5.
The transcript reflects that the judge read from the card, which stated "[a]side from the videos we made several years ago." The plaintiff testified that the only video recordings she made with the defendant were "sex tapes" and that "the fact that he's telling me he still has them after many years ago he told me [he] got rid of them, I don't know what's going to happen." The defendant's attorney represented at the hearing that the defendant did not have any "sexual videos" in his possession.
The plaintiff moved two blocks away from her prior residence and testified that she "suspect[s] [the defendant] probably already knows where [she] live[s] since he's already indicated that people are watching me."
The plaintiff also testified, "What happens when he does see [the plaintiff and her boyfriend] again? What happens when he sees me again or he sees my children. Is he going to -- . . . I'm afraid of what's next. I don't know what he's going to do next." The judge granted a six-month extension of the abuse prevention order, finding, in relevant part, "I am sufficiently concerned about [the defendant's] behavior and whether or not it will be ramped up at any stage."
Discussion. The defendant contends that the plaintiff did not present sufficient evidence to support a finding of abuse, as defined in G. L. c. 209A, § 1. For the reasons that follow, we disagree.
Although defense counsel stated at oral argument that the order has since expired, we agree, in the circumstances of this case, that the appeal is not moot given the potential collateral consequences the defendant could face. See Smith v. Jones, 67 Mass. App. Ct. 129, 133 & n.5 (2006); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).
"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. v. Compton, 464 Mass. 558, 561-562 (2013). "To extend an ex parte order, the plaintiff must show that he or she is suffering from abuse, or that a protective order is 'necessary to protect her from the likelihood of abuse.'" Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006), quoting Iamele v. Asselin, 444 Mass. 734, 739 (2005). At issue here is whether the plaintiff was in "fear of imminent serious physical harm." G. L. c. 209A, § 1. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998) ("The judge must focus on whether serious physical harm is imminent"). As such, "we consider whether 'the actions and words of the defendant placed [the plaintiff] in reasonable apprehension that physical force might be used against her.'" Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002), quoting Commonwealth v. Robicheau, 421 Mass. 176, 181 (1995). See Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009) ("reasonable fear of imminent serious physical harm is to be determined by an objective standard").
Here, where the defendant's conduct escalated over a period of less than one month, culminating with keying the plaintiff's car, the judge did not abuse her discretion in granting the extension of the order. See E.C.O., 464 Mass. at 561-562. The defendant seeks to differentiate his actions from actions that would cause a reasonable fear of imminent serious harm, arguing that the aforementioned acts did not pertain to threats of physical harm. See Wooldridge, 45 Mass. App. Ct. at 639 ("imminent serious physical harm" does not include "[g]eneralized apprehension, nervousness, feeling aggravated or hassled . . . when there is no threat of imminent serious physical harm"). While this is not a case where the plaintiff testified to express threats of violence made by the defendant, their absence does not render the G. L. c. 209A, § 1, standard unmet. See Parreira v. Commonwealth, 462 Mass. 667, 673 (2012), quoting Robicheau, 421 Mass. at 181-182 ("erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension that 'force might be used'"); M.B. v. J.B., 86 Mass. App. Ct. 108, 117 (2014) ("The purpose of a c. 209A order is to protect a plaintiff from the likelihood of abuse. . . . A plaintiff need not wait until an assault occurs to seek protection"). Moreover, "[t]he judge had the parties before [her] and was in a position to observe their demeanor." Vittone v. Clairmont, 64 Mass. App. Ct. 479, 487 (2005). Considering the defendant's actions and words in the context of the circumstances at the time of the extension hearing, the judge was within her discretion to conclude that the plaintiff had met her burden of showing "by a preponderance of the evidence that [the] extension of the order [was] necessary to protect her from the likelihood of 'abuse.'" Iamele, 444 Mass. at 739, 741. See Carroll, 56 Mass. App. Ct. at 86.
We recognize that many of the plaintiff's allegations were based on circumstantial evidence. Nonetheless, the record supports a reasonable inference that the defendant was responsible for the conduct directed at the plaintiff, and the judge did not abuse her discretion in making that determination. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Order extending abuse prevention order affirmed.
By the Court (Vuono, Maldonado & Neyman, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 13, 2019.