Y.D. v. E.S. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an October 23, 2019 order extending for one year an ex parte abuse prevention order issued pursuant to G. L. c. 209A. The defendant argues that there was insufficient evidence of an imminent threat of serious physical harm to support the order. We affirm.

From the plaintiff's affidavit and testimony, the judge could have found the following facts. The parties are the parents of two children. On November 19, 2016, when the parties were meeting to transfer the children, the defendant slammed the plaintiff's face against his car window, shattering the glass and causing permanent damage to the right side of the plaintiff's face. The defendant was prosecuted, incarcerated, served probation, and completed a batterers program.²

One of the defendant's conditions of probation was to stay away from the plaintiff. Upon termination of the defendant's probation, the plaintiff promptly commenced this action. No additional incidents of physical abuse have occurred since November 19, 2016, although the defendant did contact the Department of Children and Families about the plaintiff and called the plaintiff's landlord to try to have her evicted. Presently, the parties' children do not see the defendant, but there are ongoing proceedings in the Probate and Family Court.

The defendant did not attend the abuse prevention order hearing but was represented by counsel. The defendant contends that because there have been no incidents of physical abuse since November 2016, the extension of the order was not warranted. However, G. L. c. 209A, § 3, provides 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.” When seeking extension of an abuse prevention order relying on past physical harm, the plaintiff must show “that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G. L. c. 209A, § 1.” Iamele v. Asselin, 444 Mass. 734, 739 (2005). “Where the plaintiff has ‘already been subject to physical harm,’ ․ an extension is warranted if ‘there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.’ ” Vera V. v. Seymour S., 98 Mass. App. Ct. 315, 317-318 (2020), quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). “We review ‘for an abuse of discretion or other error of law.’ ” Vera V., supra at 318, quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018).

Here, the judge found explicitly that the defendant had been convicted of “a very serious physical assault,” that the plaintiff believed that the defendant has a vendetta against her, and that the plaintiff is in imminent danger of serious bodily injury. By extending the order, the judge implicitly found that the plaintiff remains in reasonable fear of the defendant. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 62 (2012). See also Callahan, 85 Mass. App. at 377 (“abuse occasioned by physical harm may cause wounds that produce long-lasting fear in the victim without new incitements”). “We accord the credibility determinations of the judge who ‘heard the testimony of the [plaintiff] ․ and observed [her] demeanor’ ․ the utmost deference.” Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 185 (2020), quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). Further, counsel represented that there are ongoing proceedings in the Probate and Family Court, from which the judge reasonably could have concluded that the parties will have continuing interactions. See Iamele, 444 Mass. at 740 (judge may consider ongoing litigation that is likely to engender hostility).

Having considered the totality of the circumstances, we conclude that the judge did not abuse his discretion in concluding there was a continuing need for an abuse prevention order and granting the extension. See Iamele, 444 Mass. at 740.

Order dated October 23, 2019, affirmed.

FOOTNOTES

2.   The defendant's brief states that the defendant pleaded guilty to assault and battery by means of a dangerous weapon; he served one year at a house of correction; the terms of his probation included “a stay away order, no contact, [and] no abuse of” the plaintiff; and he completed his term of probation on September 27, 2019.