A.B. v. R.V. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from a District Court order denying his motion to vacate an abuse prevention order issued pursuant to G. L. c. 209A, § 3. We affirm.

On September 26, 2018, the plaintiff applied for an abuse prevention order against the defendant, his roommate, with whom the plaintiff was previously in a relationship. In summary, the plaintiff's affidavit alleged that he had been subjected to a pattern of physical abuse and unwanted sexual advances by the defendant. Specifically, the plaintiff stated that the defendant had repeatedly “slammed” him against a wall during an argument in their apartment on September 8, 2018. After an ex parte hearing, the first judge found that there was a substantial likelihood of immediate danger of abuse, granted a temporary abuse prevention order, and scheduled a further hearing at which both parties could be heard. The defendant failed to appear for that hearing on October 4, 2018, and a second judge extended the abuse prevention order to October 3, 2019.

On October 29, 2018, the defendant filed a motion to vacate the abuse prevention order arguing, among other things, that the plaintiff did not fear the defendant and that the plaintiff's application for the abuse prevention order was a ruse to force the defendant to leave the apartment. After a hearing before the first judge, at which both parties appeared, the motion was denied. This appeal followed.

Because there is no claim that circumstances had changed in the three weeks since the extension was granted, we treat the defendant's motion to vacate as a request to reconsider the extension of the abuse prevention order. We review the first judge's decision on a motion to reconsider for abuse of discretion. See Crenshaw v. Macklin, 430 Mass. 633, 636 (2000). See also Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).

At the ex parte hearing, the plaintiff was required to establish by a preponderance of the evidence that the abuse prevention order was necessary to protect him from the likelihood of abuse by the defendant. See Iamele v. Asselin, 444 Mass. 734, 736-737 (2005). “Abuse” is defined to include, as pertinent here, “placing another in fear of imminent serious physical harm.” G. L. c. 209A, § 1. Based on the plaintiff's testimony that the plaintiff feared the defendant because he had been physically assaulted by him, the first judge found that there was a substantial likelihood of immediate danger of abuse. The inquiry at the extension hearing was whether the plaintiff could show that the extension was necessary to protect him from the likelihood of abuse. See Iamele, supra at 739. This necessity was found by the second judge at the hearing after notice, and we see no abuse of discretion in that finding. See Crenshaw, 430 Mass. at 636.

The defendant's motion to vacate the order offered an explanation for his conflict with the plaintiff, but the defendant did not deny the physical altercation. Indeed, the defendant admitted to the first judge that his “debates” with the plaintiff often became heated and physical. In light of these statements, we discern no abuse of discretion in the first judge's denial of the defendant's motion.

Order denying motion to vacate affirmed.