X.W. v. T.S. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28 2

The defendant appeals from a G. L. c. 209A abuse prevention order entered in the District Court after notice and a hearing on May 9, 2018. He contends that the plaintiff failed to provide evidence that she was in reasonable apprehension of imminent serious physical harm. We agree, and vacate the order.

Background. The plaintiff filed an application for a c. 209A order in the District Court, and a judge issued an ex parte order on April 26, 2018, directing the defendant not to abuse the plaintiff, not to contact her, and to stay away from her residence and workplace. At the May 9 hearing after notice, a different judge extended the no-abuse order for one year, but vacated the no-contact and stay-away provisions.

The plaintiff's affidavit alleged the following. The defendant was verbally abusive, demeaning, and “controlling,” and told their son that she was a bad mother. The defendant kept asking the plaintiff to move out of their home without their son. He told the plaintiff that she was an “idiot,” had mental problems, and was a bad woman. He got angry easily and yelled at her and her son, which she found very scary. The defendant put her clothes in a trash bin. The most serious allegation was that he told their son that he was “going to lose” his mother, which made the son frightened and apprehensive. The affidavit did not refer to any actual or threatened physical harm, nor did the plaintiff allege that she feared physical harm.

At the extension hearing, the plaintiff asked the judge to vacate the order. She said she was afraid of the defendant before, but that she “can see my husband wants to change to be better,” and that now she did not fear him and was “okay.” The judge suggested that she could vacate everything but the no-abuse order, to which the plaintiff agreed. Before hearing from the defendant, the judge announced that she was vacating all provisions except for the no-abuse order, which would remain in effect for another year. When the defendant asked to be heard, he pointed out that the complaint alleged no physical harm and reflected only “the conflict between [an] unhappy wife and husband.”

Discussion. “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). “We accord the credibility determinations of the judge who ‘heard the testimony of the parties ․ [and] observed their demeanor’ ․ the utmost deference.” Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929 (1999).

Under G. L. c. 209A, § 3, a person “suffering from abuse” by a “family or household member” may seek protection from such abuse by application to the court for an order requiring the defendant to refrain from abusing or contacting the victim. “Abuse” is defined as one or more acts “(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.

To warrant a c. 209A order based on “fear of imminent serious physical harm” -- the only form of abuse at issue here - - “the victim's fear or apprehension caused by the defendant's words or conduct ‘must be more than “subjective and unspecified”; viewed objectively ․ “the plaintiff's apprehension that force may be used [must] be reasonable.” ’ ” Ginsberg, 67 Mass. App. Ct. at 143, quoting Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005). See Iamele v. Asselin, 444 Mass. 734, 737 (2005).

Nothing in the record demonstrates that the plaintiff was in fear of imminent serious physical harm. She did not describe a single violent act of the defendant or state that she feared physical harm in the future. “Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, where there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm.” Woolridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998).

Because the plaintiff's allegations and testimony did not warrant issuance of the c. 209A order against the defendant, we remand the case and direct the District Court to vacate the order. The court shall notify the appropriate law enforcement agency in writing that the order has been vacated and shall direct the agency to destroy all record of the order. See G. L. c. 209A, § 7.

So ordered.

vacated