D.D. v. C.D. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, C.D., appeals from a District Court judge's issuance of a G. L. c. 209A abuse prevention order sought by C.D's former wife, plaintiff D.D.² In turn, D.D. appeals from the judge's later order declining to extend the original order ³ beyond its one-year expiration date. On C.D.'s appeal, we conclude that the original order was supported by evidence that D.D. had a reasonable fear of imminent serious physical harm, and we therefore affirm that order. On D.D.'s appeal, we conclude that because the judge made her decision not to extend the order before she heard D.D.'s reasons for seeking an extension, that order must be vacated and the matter must be remanded for a new hearing.

Background. 1. The original order. We recite the pertinent evidence underlying issuance of the original order in the light most favorable to D.D., as the party who obtained that order. See Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 285 n.4 (2003). The parties' divorce became final in 2017. On July 7, 2018, at about 9 p.m., D.D. saw, through her kitchen window, a figure pass through her gate and approach her back door. She saw that it was her former husband, C.D., and became “terrified.” She screamed “go away,” shut off a light, lowered herself to the floor, activated her home alarm system, and looked for her cell phone. Then the motion-controlled light on her back deck went on; realizing that the back door was unlocked, and fearing that he was coming inside, she crawled into another room and locked its door. She peered out a window and saw that his car was still in the driveway, not moving. She then called the police and, with their assistance, obtained an ex parte G. L. c. 209A order.

Two days later, both parties appeared at a hearing on whether to extend the order for one year. D.D. explained to the judge that her fear of C.D. was based in part on “the years of him telling me that an alarm is no good, he can just go through the window[;] a piece of paper can only poke him in the eye[;] and that most women get killed once they filed for divorce or any action after.” C.D. was in law enforcement and “carrie[d] a gun.” D.D. had thus “planned [her] leaving him for six months” because she feared that “that would be the day [she would] be killed.”

During their marriage, C.D. had also said to her and her friends: “You want to know when most women get killed? ․ [T]he day they leave, on a[n] anniversary, or the day they file a motion.” The incident here occurred four days after what would have been the parties' anniversary, and just after the parties' daughter had told C.D. that she did not want to talk to him anymore because of his “abusive, controlling behavior.” Also, about three months earlier, at a hearing in April 2018 on D.D.'s motion to find C.D. in contempt of the divorce judgment, he had whispered in her ear, “You're going to be sorry.”

D.D. also testified that during their marriage, C.D. had been “very abusive to the point ․ that you're afraid when he looked at you. And his word was final, and he beat every animal we ever had. So, am I afraid of him? Yes, I am afraid of him.” Since moving into her house after the divorce, but before the night in question, D.D. had seen him in his car near her house.

Although C.D. testified and offered innocent explanations or denials of the events as alleged by D.D., the judge explicitly or implicitly did not credit critical portions of C.D.'s testimony. The judge found that C.D. “knew or should have known” that his conduct on the night in question would frighten D.D., and that D.D. had a reason to be afraid. Considering C.D.'s actions on the night in question, together with the parties' history and C.D.'s prior comments, the judge extended the order for one year.

2. Subsequent proceedings. Some months after the original order issued, C.D. moved to reconsider and vacate that order. Attached to the motion were affidavits from himself and the attorney who had represented him in the divorce case. The affidavits both stated, among other things, that C.D. had not made any threatening remarks to D.D. at the divorce contempt hearing.

The judge in this case held a hearing on the reconsideration motion in May of 2019. She noted that C.D.'s attorney from the divorce case was a longtime friend of hers; that she would not consider the attorney's affidavit or testimony; and that, had that attorney appeared at the hearing on the original order, the judge “probably would” have recused herself. The judge indicated, however, that in any event, she was not inclined to extend the original order beyond its one year expiration date [July 9, 2019], because she believed C.D. had “gotten the message.”

D.D.'s counsel noted that the question of extending the order was not before the court and that D.D. remained in fear of C.D. The judge repeated her view that, although there was sufficient basis for the original order, some time had passed, C.D. had never been arrested or had any other restraining order issued against him, and he “underst[ood] the severity of his actions,” so that the order should not be extended. D.D.'s counsel again asserted that D.D. remained in fear of C.D. and might wish to seek an extension when the order expired in July of 2019. The judge denied the motion to reconsider and vacate the original order, but stated that she would not extend it absent further incidents between the parties.

At the July 9, 2019 extension hearing, the judge stated that she had already said she was not going to extend the order. D.D.'s counsel stated that her client was still in fear of C.D. and was requesting that the order be extended. Counsel stated that D.D. had been “sexually assaulted, physically assaulted, verbally abused ․ throughout the marriage,” and was “here and willing to testify.” Counsel also stated that she had evidence indicating that some of C.D.'s statements at the hearing a year earlier were not true. The judge repeated that she did not “think there's enough at this point to extend [the order] further” and denied D.D.'s request for an extension.

Discussion. 1. Issuance of original order. The parties agree that the propriety of the original order depends on whether the judge could properly determine that C.D. had placed D.D. in reasonable fear of imminent serious physical harm. See Iamele v. Asselin, 444 Mass. 734, 737 (2005). Here, C.D. does not contest that D.D. was subjectively in fear. “The question remaining is whether her fear was objectively reasonable, and, on this record, we cannot say that the judge erred in concluding that it was.” Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020).⁴ We give the judge's credibility determinations “the utmost deference” (citation omitted), id. at 664, and C.D. has not shown that the judge's findings were clearly erroneous. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 62 (2012) (judge's findings in issuing G. L. c. 209A order are reviewed for clear error).

“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Noelle N., 97 Mass. App. Ct. at 664, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006). “[F]or the plaintiff's fear of imminent serious physical harm to be reasonable, it is not necessary that there be a history –- or even a specific incident of physical violence.” Id. at 665. Rather, a judge must consider the totality of the circumstances of the parties' relationship. Id.

Here, viewing the evidence in the light most favorable to D.D., the circumstances indicating that her fear of imminent serious physical harm was reasonable included: C.D.'s prior statements to her about the most dangerous times for women; his statements that an alarm would not protect her and that he would view a piece of paper (inferentially including a restraining order) as merely a poke in his eye; her knowledge that he carried a gun; his having beaten their animals during the marriage; his whispered threat to her at the April 2018 divorce contempt hearing; his presence in his car near her house before the July 7, 2018 incident; and his conduct on that night, which the judge expressly found that he “knew or should have known” would frighten D.D.

C.D. asserts that the evidence here was even weaker than in Keene v. Gangi, 60 Mass. App. Ct. 667 (2004), where a G. L. c. 209A plaintiff's fear of physical harm was found not to be reasonable. We are not persuaded. Unlike the defendant's “joking[ ]” comments in Keene, supra at 669, C.D.'s prior statements to D.D. could reasonably have been interpreted as threats of actual physical harm. The defendant in Keene evidently had the plaintiff's permission to install a clock in her bedroom (although not to hide a video camera inside the clock), id. at 668, whereas here C.D. came to D.D.'s home without her permission and in circumstances that he knew or should have known would frighten her. The plaintiff in Keene merely had an “understanding” that the defendant had a firearms identification card or a license to carry, id. at 669 n.3, whereas here D.D. testified, and C.D. did not dispute, that he actually possessed firearms. These and other factors amply distinguish this case from Keene. No single factor is dispositive; what matters is the totality of the circumstances.

We do not second-guess credibility findings, there was sufficient evidence to support the judge's findings of fact, and the defendant is incorrect that the plaintiff's fear was unreasonable as a matter of law. In sum, we see no abuse of discretion or other error of law in the judge's issuance of the original order.

2. Refusal to extend original order. Under G. L. c. 209A, § 3, “[i]f the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.” Here, D.D. appeared in court on the date the original order was to expire, July 9, 2019, and asked that the order be extended. She also indicated through counsel that she remained in fear of C.D. and had significant additional evidence to present in support of her request.

The judge, however, had already determined several months earlier, on the record at the May 7, 2019 hearing, that the order would not be extended absent some new incident between the parties. This was contrary to the statutory provision that “[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 ․”⁵ G. L. c. 209A, § 3. See Iamele, 444 Mass. at 738.

The course of proceedings here was also, at a minimum, in tension with c. 209A's requirement that a judge's determination whether to extend an order be made at the time the order is set to expire. This at least implicitly precludes the judge from deciding the issue beforehand. Because “[t]he 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,’ ” Iamele, 444 Mass. at 739, the parties must be afforded a reasonable opportunity to present relevant evidence at that hearing before the judge decides whether the order should be extended. That did not happen here.⁶ The Supreme Judicial Court, nearly a century ago, stated the principle more broadly:

“If a judge reaches a decision on an issue of fact before the testimony on that issue is completed and thus closes his mind to a fair consideration of competent evidence not yet heard, he has deprived the party of his right to a full and fair hearing upon the whole evidence. Even if the judge did not exclude testimony offered or forbid counsel to proceed further, his statement to the effect that he had made up his mind ․ made the introduction of further testimony ․ a useless ceremony. A desire on the part of a judge to expedite trials and avoid a waste of time is commendable, but upon the facts disclosed by this record such a motive would not justify the trial judge in announcing his decision on the main issue in the case before he had fully heard competent testimony which the contestant was prepared and had a right to introduce.”

Preston v. Peck, 271 Mass. 159, 164 (1930).

Accordingly, D.D. is entitled to a new hearing on her request to extend the original order. At an extension hearing, “the plaintiff is not required to re-establish facts sufficient to support th[e] initial grant of [the] order.” Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913 (2001). Rather, “[t]he only criterion ․ is a showing of continued need for the order” (citation omitted). Iamele, 444 Mass. at 739. That need should be determined as of the time of the hearing on remand.⁷ Cf. Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 782 (2005) (same, where G. L. c. 209A order had been erroneously vacated). In all of the circumstances, including the judge's comments at the 2019 hearings and her statement that she would likely recuse herself if C.D. wished to present evidence from his divorce attorney, the better course is for the matter to be assigned to a different judge on remand.

Conclusion. The abuse prevention order issued on July 9, 2018, is affirmed. The order of July 9, 2019, denying D.D.'s request to extend the 2018 order is vacated, and the case is remanded for a new hearing in accordance with this memorandum and order.

So ordered.

Affirmed in part vacated in part and remanded

FOOTNOTES

2.   Although C.D. also appeals from the judge's denial of his motion to reconsider the issuance of that order, his appellate brief acknowledges that he does not pursue any claims of error arising solely out of that decision.

3.   For convenience, we use the term “original order” to refer to the order of July 9, 2018, issued (as explained infra) after a hearing at which both parties appeared, and extending for one year the ex parte order obtained by D.D. on the evening of the precipitating incident.

4.   As recognized in Noelle N., and contrary to C.D.'s argument here, a judge is not required to make an explicit finding that a G. L. c. 209A plaintiff's fear is reasonable. “[W]here we are able to discern a reasonable basis for the order in the judge's rulings and order, no specific findings are required.” Noelle N., 97 Mass. App. Ct. at 665, quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018). We see nothing to the contrary in C.O. v. M.M., 442 Mass. 648, 655 (2004), upon which C.D. relies here.

5.   To the extent that the judge also based her decision on her impression that C.D. had “gotten the message” and “underst[ood] the severity of his actions,” there was no evidence before her to support such a finding. To the extent that she considered that C.D. had never been arrested or had any other restraining order issued against him, this evidence was before her at the time she issued the original order, and does not support a refusal to extend that order.

6.   Although counsel could have been more vigorous in objecting to the judge's apparent prejudgment of the matter before her, and in insisting on the opportunity to present additional evidence before the judge made her final decision, we are not persuaded by C.D.'s suggestion that these issues are waived.

7.   Whether such need existed as of the time of the July 9, 2019 hearing appears unnecessary to decide.