L.O. v. G.O. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

G.O. (defendant) appeals from an order under G. L. c. 209A, issued against him at the instance of his wife, L.O. (plaintiff). The defendant asserts that there was no basis in the record for a finding, required under c. 209A, that the plaintiff was in “reasonable fear of imminent serious physical harm.” Smith v. Jones, 75 Mass. App. Ct. 540, 544 (2009). We agree, and accordingly vacate the c. 209A order.

Background. The defendant and the plaintiff were married in December of 2017, and in January of 2018 the plaintiff, who was in the National Guard, was deployed overseas to Kuwait. The marriage deteriorated while the plaintiff was away, and she filed for divorce in August of 2018 while she was still overseas.

The plaintiff returned to Massachusetts in November of 2018. Divorce proceedings were ongoing, but apparently the defendant would have liked to reconcile. On March 12, 2019, the plaintiff sought a c. 209A restraining order, ex parte. The plaintiff's c. 209A affidavit alleged, among other things:

(1) that the defendant had “show[n] up in New Hampshire knowing I would be there,”

(2) that the defendant “showed up to my daughter's graduation in June on a detail knowing she didn't want to see him,”

(3) that the defendant “harass[ed]” the plaintiff while she was deployed overseas, including sending “multiple ․ texts” and calling “72 times within 8 hours,” and

(4) that the defendant had “blocked [her] way from leaving a bathroom a few times in the past.” The affidavit also stated that, as of March of 2019, the defendant had found out where the plaintiff lived, and that “I am scared this is escalating.”

The judge granted the restraining order ex parte on March 12, and set the matter for hearing fourteen days later, on March 26. Both the plaintiff and the defendant appeared on that date. The only new evidence the plaintiff supplied, beyond that in her supporting affidavit, was that the defendant had “violated” the restraining order by placing a telephone call to her. The defendant's lawyer explained, however, that the defendant had called the number by mistake, that he had immediately hung up before the plaintiff answered, and that he self-reported the incident to the local police. The judge noted “that's consistent with what is in the police report.”

The plaintiff was cross-examined, and conceded that the defendant had not threatened her. Cross-examination also revealed that the New Hampshire incident referred to in the affidavit -- which was apparently the catalyst for the plaintiff to seek a c. 209A order -- involved a special ski promotion for veterans at Attitash Mountain. Both the plaintiff and the defendant had gone to this promotion in past years (it was apparently a yearly event, and the defendant also qualified as a veteran). On this particular day, in 2019, the plaintiff had no contact with the defendant at the mountain, although she had learned from an acquaintance that he was present.

The judge extended the order for sixty days, to May 30. On that day both parties appeared and both testified. The plaintiff did not testify to any new actions, but merely noted that the hearing in the parties' divorce proceeding had been postponed and had not yet occurred. The defendant stated that “I have absolutely never threatened to harm my wife or her children ․ I've never threatened anybody in my life.” The judge extended the order for another six months, from May 30, 2019, to December 2, 2019. The defendant appealed from that May 30 order. The defendant did not appeal from the earlier, March 26 order.

Discussion. For purposes of obtaining a restraining order under c. 209A, abuse is defined in § 1 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.” Here there is no allegation of actual physical harm or involuntary sexual relations, so the only possible basis for the order would be subparagraph (b) -- “fear of imminent serious physical harm.” As to this subparagraph, the cases emphasize that the fear must be reasonable, in light of the totality of the circumstances of the parties' relationship. Iamele v. Asselin, 444 Mass. 734, 740 (2005).

The evidence here did not demonstrate a basis for a reasonable fear of imminent serious physical harm. There was no evidence of prior physical contact by the defendant, and no evidence of threats or threatening behavior. As we said in Wooldridge v. Hickey, “[g]eneralized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm.” 45 Mass. App. Ct. 637, 639 (1998). The plaintiff's evidence here showed that the defendant engaged in some annoying and even harassing behavior in the past -- for example, the telephone calls while she was overseas -- but it did not provide a reasonable basis to believe that the defendant would physically harm the plaintiff, much less that any such harm was imminent.² Many of the facts cited by the plaintiff occurred while she was in Kuwait. The only specific events she cited, since her return, did not involve actual contact -- or even visual contact -- with the defendant. A statement that the plaintiff is scared is not sufficient; the fear must be objectively reasonable in light of the facts adduced. Smith, 75 Mass. App. Ct. at 543.

The order of May 30, 2019, is vacated.³ The District Court shall notify the appropriate law enforcement agency of this decision in accordance with G. L. c. 209A, § 7, and shall direct that agency to destroy all record of the vacated order.

So ordered.

Vacated

FOOTNOTES

2.   There was no further evidence with respect to the affidavit's reference to the defendant “blocking” the plaintiff when leaving a bathroom. Absent explication, the allegation is insufficient.

3.   Although the defendant did not appeal from the prior order of March 26, 2019, we note that our decision today necessarily means that order also was erroneous, as it was based upon essentially the same evidence.