T.F. v. R.T. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from a one-year G. L. c. 209A abuse prevention order, arguing that the evidence was insufficient to show that the plaintiff was in reasonable fear of imminent serious physical harm, see G. L. c. 209A, § 1. We affirm.

We review the extension of an abuse prevention order “for an abuse of discretion or other error of law.” E.C.O. v. Compton, 464 Mass. 558, 562 (2013). “A plaintiff seeking the extension of an abuse prevention order must prove ‘by a preponderance of the evidence ․ that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm.’ ” G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018), quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014). That fear must be objectively reasonable. See Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009). “It 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 v. Asselin, 444 Mass. 734, 741 (2005).

The evidence permitted the judge to find the following. The parties had been in a fifteen-year relationship that began when the plaintiff was fifteen and the defendant was twenty-one. They had a daughter together who, at the time of the hearing was seven years old. The defendant had a criminal history that included crimes of violence. The parties' relationship (which had ended three years earlier) was tumultuous, and included instances of verbal and physical abuse. In 2016, while there was an action pending between the parties in the Probate and Family Court, the plaintiff's sister had seen a man hovering around the plaintiff's car. A GPS tracking device was later found attached under her car, which the plaintiff believes was placed there by the defendant because he subsequently always knew precisely where she was. The plaintiff had previously obtained a restraining order against the defendant.

In the months leading to the current restraining order, the defendant's behavior had become “erratic” and “unpredictable” when he knew that the plaintiff was dating another person. Approximately four months before the hearing, the defendant had threatened a man the plaintiff was dating and so the plaintiff broke off seeing the man in order “to keep the peace.” Two months before the hearing, the plaintiff received a “weird” text from the defendant's telephone that appeared to be written by the daughter and asking the plaintiff to come get her from the defendant's home. When the plaintiff arrived to check on the daughter, the defendant was very angry with the plaintiff and told her to leave, which she did. As described by the plaintiff, the defendant

“[W]as right behind me walking down the stairs. He's much bigger than me and he's right behind me, I could feel him, you know, very close to me, not quite touching me, walking down the stairs, calling me a scumbag, calling me a piece of shit, excuse my language. So, there's one flight of stairs and I turned the corner and went down the next flight of stairs. He's still behind me, even though I'm leaving voluntarily and then as I just barely made it into my car and he threw like a standard size like wide metal shovel at me.”

A few weeks later, after an argument over putting the daughter to bed, the defendant threatened the plaintiff that she “would regret it.” Approximately one month after that, the plaintiff's boyfriend's tires were slashed with a knife outside his house when the plaintiff was staying there. Ten days before the extension hearing, the daughter had an art show that the plaintiff wanted to attend when the defendant would not be there, but he repeatedly stated that he would “wait there all day for [her].” The plaintiff does not feel safe, and avoids being alone with the defendant.²

In these circumstances, we see no merit in the defendant's argument that the evidence of abuse was too remote to support issuance of the extension order. Although it is true that the parties' relationship ended three years earlier, the plaintiff's testimony about her interactions with the defendant during the months leading up to the hearing amply sufficed to find that the plaintiff was in imminent fear of physical harm and that her fear was objectively reasonable, particularly when viewed in the context of the parties' historic relationship. Accordingly, the defendant has not shown that the judge abused his discretion in issuing a one-year extension of the initial ex parte order.

Order dated May 10, 2019, extending G. L. c. 209A order affirmed.

FOOTNOTES

2.   Although the defendant denied throwing the shovel and much of the plaintiff's testimony, it was for the judge to resolve the conflicting testimony and to assess the credibility of the parties, both of whom testified. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3, 147–148 (2006).