K.R. v. A.R. (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This appeal arises from the entry of an abuse prevention order under G. L. c. 209A, § 3, against the defendant. The order contained provisions protecting the plaintiff herself and the parties’ minor children. We affirm the order as it pertains to the plaintiff. We do not reach the propriety of the provisions pertaining to the children, as those provisions were vacated less than a month after the order was entered.

Background. The plaintiff initially obtained an ex parte order; an evidentiary hearing on extending the order was held shortly thereafter, and the order was extended for one year. We summarize the judge's findings of fact, supplemented by testimony from the extension hearing. See Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 285 n.4 (2003).

The parties are a formerly married couple. They have two minor children, custody of whom was shared under the parties’ separation agreement. Shortly before the parties were divorced, they had a heated discussion regarding the parenting schedule they would follow. During this discussion, the defendant became enraged and took the plaintiff's phone from her and left their then-shared residence to go to his truck. The plaintiff followed him out to the truck and attempted to reach for her phone, whereupon the defendant slammed her arm in the truck door.

On another occasion leading up to their divorce, this time during a discussion concerning the defendant's obligations to pay child support, the defendant threw a beer bottle through a television at the parties’ residence. The plaintiff went into their daughter's bedroom and locked the door. The defendant followed her, forced the door open (breaking the lock), and demanded that she help him clean the mess left after breaking the television. As a consequence of this incident, the plaintiff moved out of the residence the following morning.

Approximately two weeks after the parties’ final divorce hearing, they had a phone conversation wherein the defendant told the plaintiff that, if he could, he would go back in time, portray the marriage as a happy one, and then kill the plaintiff.

Based on this evidence, as well as on text messages between the parties, the judge found that communications made by the defendant to the plaintiff shortly before and after their divorce constituted threats and demonstrated the defendant's “very controlling and possessive manner” toward the plaintiff. The judge extended the ex parte order for one year.

The extension order required both that the defendant stay away from and not contact the plaintiff and also that he stay away from and not contact the children. The order further awarded custody of the children to the plaintiff. Those provisions of the order having to do with the children were vacated by a Probate and Family Court judge within a month of the order's extension. The defendant appealed the extension order both before and after this modification.

Discussion. The order was granted based on the definition of abuse set out in G. L. c. 209A, § 1 (b), that is, acts between family or household members that placed the plaintiff in fear of imminent serious physical harm. To obtain an abuse prevention order on this basis, the plaintiff was required to show that she had a reasonable fear of such harm at the time she sought the order. Iamele v. Asselin, 444 Mass. 734, 735 (2005). We review the judge's findings, including that the plaintiff was placed in such a reasonable fear, for clear error. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 62 (2012).

The defendant contends that the evidence did not support the finding of a reasonable fear of imminent serious physical harm. Specifically, he argues that he never intentionally inflicted physical harm on the plaintiff. However, even if we assume that the judge viewed the defendant's act of shutting the plaintiff's arm in the truck door as unintentional, it was not necessary for the judge to find that the defendant used physical force in the past. “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. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020), 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. Further, “erratic and unstable behavior, in the context of an escalating and emotional argument, can create a reasonable apprehension that ‘force might be used’ ” (citation omitted). Id., quoting Parreira v. Commonwealth, 462 Mass. 667, 673 (2012).

Here, the judge found the plaintiff's testimony about her fear to be credible; we defer to that determination. See Noelle N., 97 Mass. App. Ct. at 664. The question remaining is whether her fear was objectively reasonable. See id. On this record, which presented repeated instances of the defendant's erratic and unstable behavior, we see no error in the judge's finding that the plaintiff's fear was objectively reasonable.

We do not reach the defendant's arguments regarding the provisions pertaining to the parties’ children. Those provisions were vacated less than a month after their issuance and even before the defendant filed his second notice of appeal.² We deny the plaintiff's request, contained in her responsive brief, for an award of her appellate attorney's fees.

Order dated August 13, 2020, as modified by order dated September 1, 2020, affirmed.

FOOTNOTES

2.   The defendant asserted for the first time at oral argument that, even if the provisions pertaining to the plaintiff are affirmed, he has a right to have all records of the provisions pertaining to his children destroyed. This argument is waived; “[t]he appellate court need not pass upon questions or issues not argued in the brief.” Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). See Tedeschi-Freij v. Percy Law Group, P.C., 99 Mass. App. Ct. 772, 781 (2021). To the extent the defendant challenges the issuance of the order as to the children, the order was vacated by the Probate and Family Court. In any event, on this record, G. L. c. 209A, § 7, does not permit us to order the expungement of all records of a vacated c. 209A order. See Vaccaro v. Vaccaro, 425 Mass. 153, 156-157 (1997).