S.P. v. D.C. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from a District Court judge's order permanently extending an abuse prevention order against the defendant. See G. L. c. 209A. We affirm the extension of the order, but remand for the judge's reconsideration of the duration of the extension.

Background. The plaintiff and the defendant were formerly married to each other. In 2014, prior to the plaintiff filing for divorce, the defendant raised his fist to her face during an argument. That same year, after the plaintiff filed for divorce, the defendant engaged in additional behavior that was characterized by the plaintiff as “verbally and emotionally abusive,” which included confronting the plaintiff in public, resulting in a verbal altercation; following the plaintiff and her minor son (son) to a restaurant; and following a woman he believed to be the plaintiff as she drove from Milford to Westborough.²

On December 18, 2014, based on the foregoing events, the plaintiff obtained an ex parte abuse prevention order against the defendant from the District Court. The order applied to both the plaintiff and her son.³ The order was thereafter extended three times before the extension hearing at issue.⁴ On December 28, 2017, after a hearing attended by both parties, a different District Court judge granted a permanent extension of the order.⁵ The defendant appeals therefrom.

Discussion. 1. Extension of the order. On appeal, the defendant contends that there was insufficient evidence presented at the 2017 extension hearing to warrant the extension of the order. We disagree.

“The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G. L. c. 209A, § 1.” Iamele v. Asselin, 444 Mass. 734, 739 (2005). In evaluating an extension of an abuse prevention order, the judge should “consider the totality of the circumstances of the parties' relationship,” including “the likelihood that the parties will encounter one another in the course of their usual activities.” Id. at 739-740. A plaintiff seeking to extend an order that was based on “fear of imminent serious physical harm” must show “that he or she has the same reasonable fear at the time the extension is sought.” Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009) (fear must be objectively reasonable). Moreover, the judge “can properly take into account the entire history of the parties' relationship and any trauma or threat of harm to the applicant's minor children” (citation omitted). Id.

During the extension hearing in the present case, the judge reviewed the prior orders, affidavits, and supporting documentation,⁶ the plaintiff testified as to her reasons for obtaining the original order and reasons for an extension, and the defendant testified. The plaintiff further testified that while “there have been no issues” since the order has been in place, she was afraid “something might happen” if the order was removed. The defendant's attorney questioned the plaintiff about a harassment prevention order she had obtained against the defendant in 2012, prior to the parties' marriage.

Based on the plaintiff's testimony, supporting documentation, and the defendant's prior and repeated behavior, viewed in the totality of circumstances, we cannot say that the judge abused his substantial discretion in allowing the extension request. We note that the judge had the benefit of evaluating the plaintiff's credibility through her testimony and demeanor, and that the judge could have considered the likelihood that the parties would encounter one another through their children attending the same school. The judge could have concluded that the plaintiff “continued to have the same reasonable fear of physical harm that had supported the issuance of the restraining order sought to be extended.” Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999). We acknowledge the defendant's argument that no presumption of abuse arises from the prior issuance of a c. 209A order, and that he had not violated the original order or the extensions. We emphasize, however, that compliance with an abuse prevention order is not a ground for a judge to not extend the order. See G. L. c. 209A, § 3; Iamele, 444 Mass. at 738 (“obedience alone is not a ground for refusing an extension of the initial order”).

2. Permanent extension. At a renewal hearing for an abuse prevention order, the judge may allow the existing order to expire, issue a permanent order, or issue an order of “any additional time reasonably necessary to protect the plaintiff.” G. L. c. 209A, § 3. See Crenshaw v. Macklin, 430 Mass. 633, 635 (2000) (judge has broad discretion in determining which option is warranted). The standard for granting a permanent abuse prevention order is whether the permanent order is reasonably necessary to protect the plaintiff from abuse. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485-486 (2005); Jones v. Gallagher, 54 Mass. App. Ct. 883, 889 (2002). The plaintiff must show a continued need for the order, but “[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order ․” G. L. c. 209A, § 3. See Iamele, 444 Mass. at 739 (plaintiff must show by preponderance of evidence extension of order is necessary to protect from likelihood of “abuse”); Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:08 commentary (2011).

The judge's oral findings at the conclusion of the hearing indicated, inter alia, that he was making the order permanent because the order had been in place for approximately three and one-half years, and “[b]ased on the original reason for the restraining order and the fact that there were issues after that, although not violations.” Although the judge referenced “issues after that,” the record is unclear as to what issues formed the basis for a permanent extension. See White v. Hartigan, 464 Mass. 400, 414 (2013). As there is no presumption that an initial order will be made permanent absent a showing of continued need, we remand for the judge to reconsider his decision as to the duration of the extension. Vittone, 64 Mass. App. Ct. at 485. On remand, the judge has wide discretion to determine the length of an extension. See Crenshaw, 430 Mass. at 635.⁷

Conclusion. The portion of the order dated December 28, 2017, making the abuse prevention order extension permanent is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order. In all other respects, the order is affirmed.

So ordered.

vacated in part; affirmed in part

FOOTNOTES

2.   The verbal altercation and the defendant's pursuit of the third party were memorialized in police reports, which the plaintiff submitted with her affidavit in support of her initial application for the abuse prevention order in December, 2014. In her affidavit, the plaintiff stated that the defendant's conduct, in following her and her son to the restaurant “upset [her] son very emotionally, causing him increased anxiety.”

3.   The abuse prevention order was amended in 2015 to provide that the defendant remain away from plaintiff's son's school. The order was later amended a second time to allow the defendant to attend meetings at the school because his minor child (not the plaintiff's son) attended the same school.

4.   On December 29, 2014, the ex parte order was extended for one year. It was extended for another year in December 2015 and again in December 2016.

5.   The order was further amended at the close of the December 2017 hearing to require the defendant to stay at least twenty yards away from the plaintiff's son.

6.   The appellate record appears to reflect that at the extension hearing the judge reviewed the documents submitted by the plaintiff in support of the 2014 abuse prevention order, which included her affidavit and two police reports. See note 1, supra. This documentation described several incidents. The defendant blocked the plaintiff from leaving a parking lot by placing his hands on her car. After about ten minutes he allowed her to leave. In a second incident, about one month later, the defendant followed the plaintiff and her son to a restaurant, upsetting the plaintiff's son. Approximately one month after the second incident, the defendant followed an eighteen year old woman, whom he mistakenly believed to be the plaintiff, for approximately fifteen miles, even though the woman attempted multiple times to evade him. She called her father, who dialed 911 and stopped the defendant's car in front of their house. When the officer arrived, the defendant was extremely nervous and his jeans were unzipped.

7.   Our decision is limited to the unique and particular facts of the present case.