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K.W. v. J.W. (2021)

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Appeals Court of Massachusetts.

K.W. v. J.W.


Decided: February 18, 2021

By the Court (Meade, Milkey & Neyman, JJ.1)


The defendant appeals from an order extending a G. L. c. 209A abuse prevention order against him. He argues that the evidence failed to establish that the plaintiff had a reasonable fear of imminent serious physical harm. We affirm.

Background. At the time the plaintiff filed for an abuse prevention order, the parties were living together and undergoing divorce proceedings in the Probate and Family Court. The parties have two children.

The plaintiff obtained an ex parte abuse prevention order on October 11, 2019. The evidence supporting the initial order included information that around 4 a.m. on October 11, 2019, the plaintiff -- who was sleeping in a separate bedroom that had a lock installed on the door “for [her] safety” -- woke up to go to the bathroom. She took her cell phone with her and “pre-dialed 9-1-1.” After entering the bathroom, she heard the defendant run down the hall to her bedroom. She saw that he had turned on all of the lights in her room and was standing “near the door with his arms across his chest.” The plaintiff ran back to her room and asked the defendant, three times, to leave; he left only after she said, “I'm going to call someone.” Although she pressed send on her cell phone, she later testified that the call did not go through. The plaintiff's affidavit averred that “[t]his is just the most recent incident”; that the defendant “needs to dominate and control everything with me and the kids”; and that he kept logs of where she went, whom she visited, what she ate or drank, and where she traveled for work. He also had admitted to reading her e-mail. The plaintiff averred that the continuing escalation “made [her] scared that the next incident will be when he kills [her].”

On October 25, 2019, the parties agreed to extend the ex parte order until February 5, 2020, for a full evidentiary hearing. At the February 5, 2020, hearing, the plaintiff's testimony, which the judge credited, provided further details regarding the defendant's behavior toward her. The plaintiff explained that in early October, while the defendant was away on business, she set up her new bedroom and put a lock on the door. When the defendant returned to the home on October 10, 2019, he walked into the plaintiff's new bedroom, in the presence of the plaintiff, her mother, and the children, and told her, “You're not allowed to do this” and then started to “very dramatically tak[e] pictures all around the room.” As discussed supra, in the early morning of October 11, at around 4 a.m., he confronted her again outside her new bedroom.

On the morning of October 11, 2019, the plaintiff went downstairs to get the children ready for school and noticed that a vase she had put out was “shattered in the back yard with the flowers all strewn about.” After the children went to school, the plaintiff decided to seek a restraining order.2

The plaintiff also testified to additional incidents. On or around November 2018, after an “explosive fight” in which the defendant admitted to tracking her activities, the plaintiff began sleeping on the couch in the living room. Thereafter, at night the defendant began “interrupt[ing] [her] in the dark, throw[ing] on the lights” to discuss “some new thing.” During these incidents, the defendant would “[c]ome right up into the exact living space [the plaintiff] was standing” and be “very close” to her. By July and August 2019, the defendant confronted the plaintiff at night “regularly,” and in a threatening manner.

The plaintiff testified that she filed for divorce in March 2019, but did not tell the defendant until July 2019 because “[she] was scared.” In early September 2019, the plaintiff returned home from vacation with the children to find that the defendant had “trashed” her office, and her personal and work documents had been removed and put in various rooms around the house. Around this time, the defendant also changed the code to the home Internet access, which the plaintiff needed to work from home.3

Discussion. The defendant contends that the plaintiff failed to establish she had a reasonable fear of imminent serious physical harm under G. L. c. 209A, § 1 (b).4 We review the issuance of an abuse prevention order for an abuse of discretion or error of law. E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013). “A plaintiff seeking the extension of an abuse protection order must prove ‘by a preponderance of the evidence[ ] that the defendant has ․ placed the plaintiff in fear of imminent serious physical harm.’ ” M.B. v. J.B., 86 Mass. App. Ct. 108, 117 (2014), quoting McDonald v. Caruso, 467 Mass. 382, 386 (2014). The plaintiff's fear must be “reasonable,” which “is to be determined by an objective standard.” Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009). In evaluating an extension of an abuse prevention order, “a judge must consider the totality of the circumstances of the parties’ relationship.” Iamele v. Asselin, 444 Mass. 734, 740 (2005).

The present facts present a close case. However, we discern no abuse of discretion in the extension of the abuse prevention order. The defendant's controlling behavior, which at times manifested in physical intimidation, culminated in the defendant confronting the plaintiff in the middle of the night, after an earlier volatile interaction. The evidence showed that the defendant physically prevented the plaintiff from entering her bedroom despite her repeated requests that he leave. Indeed, it was not until she threatened to “call someone” on her cell phone, predialed to 911, that the defendant agreed to leave her alone. The above-referenced events -- e.g., the repeated and escalating confrontations, “trashing” the plaintiff's office, following the plaintiff and keeping logs of her actions and movements, shattering the vase -- depict escalating, threatening, controlling, confrontational conduct. The combination of the defendant's obsessive, controlling behavior and the hints of physical intimidation detailed by the plaintiff supported an objective fear of imminent physical harm viewed in the totality of the circumstances. See Commonwealth v. Gordon, 407 Mass. 340, 349-350 (1990). The defendant's argument that the plaintiff could not reasonably have feared for her physical safety because there was no evidence of past violence or threats is unpersuasive under the particular facts of this case. “The purpose of a c. 209A order is to protect a plaintiff from the likelihood of abuse” and a plaintiff “need not wait until an assault occurs to seek protection.”5 M.B., 86 Mass. App. Ct. at 117.

Order affirmed.


2.   Through a neighbor, a police detective learned that the plaintiff intended to go to the District Court to seek a restraining order. The detective, who was at the court house, saw a man that fit the defendant's description. On the detective's advice, the plaintiff did not go to the court house until the defendant departed. Three hours later, the defendant -- who had been waiting for the plaintiff -- left the court house. At that time, the detective “told [her] it was safe” to go to the court house.

3.   After the ex parte order issued, the plaintiff testified that the defendant stopped the mail and newspaper from being delivered. The police filed applications for violations of the abuse prevention order; however, no violations issued against the defendant.

4.   At oral argument, defense counsel stated that the abuse prevention order has expired; however, the appeal is not moot given the potential collateral consequences that the defendant could face. See Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006); Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).

5.   The defendant contends that the judge (1) failed to consider that the abuse prevention order was being used “for litigation advantage” in the parties’ pending divorce proceeding and (2) based his determination on improper concerns regarding the parties’ living arrangements. These arguments are unavailing. Prior to the start of the February 5, 2020, hearing, the judge inquired into the status of the Probate and Family Court proceedings and expressed concern about the logistics of the parties’ living arrangements if the abuse prevention order was not extended. The judge did not raise these concerns again once the hearing began and based his determination, which is supported by the record, on the “credible testimony” given. Compare Corrado v. Hedrick, 65 Mass. App. Ct. 477, 484 (2006). On the record before us, we are not concerned that the judge “acceded to the use of c. 209A orders as a bargaining chip” in the parties’ divorce proceedings. Wooldridge, 45 Mass. App. Ct. at 637.

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