M.C. v. J.C. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

In June 2017, M.C. sought and obtained a G. L. c. 209A abuse prevention order against J.C., her former husband. The order was later extended for one year. The defendant appeals from both the initial issuance and the extension of that order. We affirm.

Background. The judge made no explicit oral or written findings, but it is clear she credited the evidence from M.C.'s affidavit, which we describe in some detail. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). M.C. and J.C. were married from 2003 to 2009 and had one daughter. During and subsequent to the marriage, J.C. suffered from mental health issues and was diagnosed with bipolar disorder. He also owned a number of firearms during the marriage, including a “[G]lock.” After the divorce, J.C. was involved in relationships that “culminated in violence and involved weapons.” He then relocated from Massachusetts to Fort Lauderdale, Florida, in 2014. J.C. did not have visitation with his daughter after September of 2015 because he refused to allow his parenting time to be supervised.

Shortly before M.C.'s request for the c. 209A order, J.C. began to send “repeated” accusatory e-mails to M.C. about his desire to see his daughter. One of those e-mails included a reference to “2517.” M.C. determined that “2517” was a reference to the biblical passage from Ezekiel 25:17, which plays a prominent role in the film Pulp Fiction, one of J.C.'s favorite movies. Ezekiel 25:17 reads in part,

“And I will strike down upon thee with great vengeance and furious anger those who would attempt to poison and destroy my brothers. And you will know my name is the Lord when I lay my vengeance upon thee.”

A main character in Pulp Fiction says “2517” and recites Ezekiel 25:17 just prior to shooting his victims. J.C. also sent the same “2517” reference to M.C.'s fiancé via text message.

Concerned about the “2517” message, M.C. discussed the e-mail with the daughter's therapist, who became alarmed. The therapist told M.C. that “many individuals with mental health issues who engage in violent acts quote scriptural passages.” M.C. also believed that J.C. would be traveling to New England “sometime in the next couple of weeks.”

Based upon her fear of serious harm at the hands of J.C., M.C. appeared in the Probate and Family Court on June 28, 2017 to obtain the c. 209A order against him. At the ex parte hearing, M.C. was sworn in by the judge and testified that the facts in her affidavit were true.² The order was granted.

On August 15, 2017, a two-party hearing was held regarding M.C.'s requested extension of the order for a full year.³ J.C. did not appear, but J.C.'s counsel was present and argued on his behalf. He argued, inter alia, that the affidavit was insufficient to prove an imminent fear of serious physical harm because his client was settled “1,400 miles away” in Florida and had no desire to return to Massachusetts. The judge extended the order for one year. This appeal followed.

Discussion. On appeal, J.C. does not deny sending the e-mail with the “2517” reference. He argues instead that M.C.'s affidavit does not set forth sufficient evidence of a reasonable fear of imminent serious bodily harm warranting the initial issuance or extension of the c. 209A order. He also asserts a number of other arguments that are unavailing and require little discussion.⁴

“To obtain an initial protective order, a plaintiff must show that he or she is ‘suffering from abuse.’ ” Iamele v. Asselin, 444 Mass. 734, 736 (2005), quoting G. L. c. 209A, § 3. Abuse is defined as (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat, or duress. G. L. c. 209A, § 1. The circumstances justifying both the initial order and any extension need only be proven “by a preponderance of the evidence.” MacDonald v. Caruso, 467 Mass. 382, 386 (2014). The issuance of a c. 209A order is reviewed for an abuse of discretion or an error of law. G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018).

The combination of M.C.'s affidavit and her sworn testimony were sufficient to support the granting of the ex parte order.⁵ Reasonable minds might conclude that “2517” was a thinly veiled but clear invocation of gun violence. M.C. believed that J.C. would be traveling to New England in the next few weeks.⁶ And given J.C.'s history of erratic behavior and mental health history, his familiarity with firearms, and the hostile nature of his recent contact with M.C. and her fiancé, M.C.'s fear was reasonable and we discern no abuse of discretion by the judge in granting the ex parte order.⁷

Likewise, there was no abuse of discretion in the judge's decision to extend the order for one year. When considering an extension, “[i]t is the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order, that govern.” Iamele, 444 Mass. at 741. At the extension hearing, significant detail was added to the facts alleged in M.C.'s affidavit. The evidence revealed that J.C. had previously been charged with domestic violence toward another woman and that he had recently made other improper attempts to reinstitute visitation with the daughter. The judge also viewed, on M.C.'s phone, the entire “2517” e-mail for the first time.⁸ J.C. (through counsel) had the opportunity at the hearing to explain the nature of the “2517” reference but elected not do so. In fact, there was nothing of substance offered in rebuttal.⁹ As a result we find no abuse of discretion in the judge's granting of the one-year extension.¹⁰

Abuse prevention order dated June 28, 2017, and extension order dated August 15, 2017, affirmed.

FOOTNOTES

2.   The transcript reads as follows:The Court: “All right, raise your right hand please.”[M.C., SWORN]The Court: “Okay, so I've read the affidavit and you stand by all the facts in the affidavit as true?”M.C.: “Yes.”The Court: “Okay. All right, then I am going to issue the order based on the representations made in the affidavit.”

3.   The record shows that the order was extended briefly twice prior to the two-party hearing.

4.   These arguments include that the judge erred by not taking oral testimony and exclusively relying on M.C.'s affidavit to issue the ex parte order, that J.C. no longer has the means to visit Massachusetts, that a threat cannot be imminent when there is no prior history of abuse, that M.C. failed to attach the “2517” e-mail to the affidavit in violation of the best evidence rule, that the “2517” reference was vague and speculative, and that referencing “2517” is protected free speech.

5.   Contrary to the defendant's assertion, the judge took sworn testimony and did not solely rely on M.C.'s affidavit. The judge's actions were entirely permissible. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 3:06 commentary (rev. Sept. 2011), https://www.mass.gov/files/documents/2016/08/uz/guidelines-2011.pdf [https://perma.cc/M9MV-8ZXZ].

6.   The issuance of an order under G. L. c. 209A does not require that the imminent serious physical harm be feared to occur immediately. See Commonwealth v. Gordon, 407 Mass. 340, 349 (1990) (“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances”).

7.   Contrary to another of the defendant's arguments, the parties need not have a prior history of abuse for a c. 209A order to issue. See Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002). Further, the defendant's residence in Florida is not dispositive regarding the issue of his ability to place the plaintiff in reasonable fear of imminent physical harm. See Caplan v. Donovan, 450 Mass. 463, 468-472, cert. denied, 553 U.S. 1018 (2008).

8.   In a c. 209A proceeding, “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). The “2517” e-mail was not provided to this court.

9.   The defendant also seems to concede in his brief that he failed to follow previous orders from the Probate and Family Court.

10.   To the extent we have not discussed any other arguments made by the defendant, they “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).