A.A. v. M.J.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, M.J., appeals from an extension of an abuse prevention order issued against him pursuant to G. L. c. 209A. The order required that he refrain from contact with his former wife, the plaintiff, A.A.2 He asserts that the District Court judge erred because there was insufficient evidence to support a finding that his conduct had placed A.A. “in fear of imminent serious physical harm” as required by the definition of “abuse” in G. L. c. 209A, § 1. He further claims that he was prejudiced because the judge held a telephonic hearing that precluded her from adequately assessing the credibility of the witnesses and that her failure to issue written findings requires us to vacate the order. We affirm.
Background. We recite the material facts as they appear from the record. See E.C.O. v. Compton, 464 Mass. 558, 559 (2013).3 The parties were married in 2006, and divorced in 2016. They have twin boys who were ten years old at the time of the proceedings in question. The sons lived with A.A. and spent time with their father, M.J., pursuant to a parenting plan. During the marriage, M.J. suffered from depression and alcoholism, which, on various occasions, led to in-patient treatment. Following the divorce, M.J.’s conduct and attitude toward A.A. became increasingly hostile. He frequently sent hateful texts and e-mails that accused A.A. of ruining his life.4 On one occasion in September 2019, M.J. arrived uninvited at A.A.’s home and screamed at her. This incident prompted A.A. to obtain an order from a judge of the Probate and Family Court that prevented M.J. from entering her home.
After a brief hiatus, M.J. resumed sending profane and threatening messages to A.A. M.J. also sent threatening messages to A.A.’s au pair, who, by May of 2020, had blocked M.J.’s phone number. This period of renewed tension came to a head on June 29, 2020. That morning, A.A. drove one of their sons to baseball camp. M.J. had arrived slightly earlier and became upset when their son would not get out of the car because he did not want to attend the camp. M.J. looked at A.A. and said, “[F]uck you.” A.A. left and drove home. M.J. then sent a number of hostile text messages to A.A. stating: “You ruined my life. Now you can ruin his. Do you do any parenting at all”; “You've brainwashed him against me. There's something wrong with him, and it is your fault”; and “He's afraid of his shadow. What the fuck have you been doing?” Soon thereafter, M.J. arrived at A.A.’s home, banged on the front door, and shouted for his son. At one point, he tried to push his way into the house, but the au pair forced the door shut and locked it.5 M.J. then banged on A.A.’s office windows on the back side of the house and screamed, “[G]et me my son and let me in the fucking house.” A.A. “panicked” and called the police.
Police Sergeant Robert Disario was the first officer to arrive at A.A.’s home. He testified that he observed M.J. banging on A.A.’s front door and shouting loud enough that he could hear it from up the road. He described the defendant as very agitated and disrespectful. Although M.J. was not arrested, Sergeant Disario advised A.A. to obtain an emergency abuse prevention order, which she did that afternoon.
A few days later, after M.J. had been informed of the order, M.J. called A.A.’s mother three times. The mother testified that during the first phone call, M.J. “sounded very, very angry” and said that he hated A.A. and that she was “evil.” When M.J. called a second time, the mother hung up. M.J. called again and left a message on the mother's answering machine. The mother testified that M.J. “was drunk,” that he slurred his words, and that he reiterated his hate for A.A. by stating that she ruined his life and that someday she would pay for it.
Discussion. 1. Sufficiency of the evidence. “The 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’ as defined in G. L. c. 209A, § 1.” Vera V. v. Seymour S., 98 Mass. App. Ct. 315, 317 (2020), quoting Iamele v. Asselin, 444 Mass. 734, 739 (2005). “[I]n evaluating whether an initial 209A order or its extension should issue, the judge must examine the words and conduct in the context of the entire history of the parties’ hostile relationship” (quotation and citation omitted). G.B. v. C.A., 94 Mass. App. Ct. 389, 393–94 (2018).
Here, A.A. has met her burden to show that she had a reasonable fear of imminent serious physical harm. M.J.’s intimidating behavior, as testified to by A.A., and credited by the judge, rationally could be interpreted by the judge as “create[ing] a picture of a volatile situation in which the possibility of physical abuse was present.” Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006), quoting Commonwealth v. Gordon, 407 Mass. 340, 350 (1990). A.A. testified that M.J.’s “behavior toward [her] ha[d] just come to a point that [she was] scared to death of him.” The judge noted that the text messages reflected “a pattern of verbal abuse ․ over an extended period of time,” and that the defendant's anger toward the plaintiff appeared to have escalated.6 Moreover, it readily could be inferred from M.J.’s conduct on June 29, 2020 that A.A., even if she did not expressly so testify, reasonably inferred that force might be used against her. The evidence also supported the inference that M.J.’s outbursts occurred in front of his son, who was in the car when M.J. said, “[F]uck you,” and in the house while M.J. was banging on the doors and yelling obscenities. See Ginsberg, supra at 146 (abuse prevention order warranted where, along with other abusive behavior, ex-husband stated that ex-wife had “ruined his life” and yelled “obscene verbal abuse” in front of their son). See also Gordon, supra at 349-350 (obscene “verbal outburst,” arriving unannounced at plaintiff's residence, and physically blocking door were factors sufficient to show likelihood of abuse in prosecution for violation of abuse prevention order, where no physical contact was made). In sum, based on the evidence presented, we cannot say that the judge's factual finding that A.A. was in fear of imminent serious physical harm was unsupported by the evidence, or that her fear was unreasonable.
2. Absence of written findings. We discern no merit to M.J.’s claim that the absence of written findings requires us to vacate the extension order and remand the case. Although specific findings are always helpful to a reviewing court, we do not necessarily require them. See, e.g., Ginsberg, 67 Mass. App. Ct. at 140 n.3. “[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.” G.B., 94 Mass. App. Ct. at 396. In this case, as previously noted, there is ample support in the record for the judge's conclusion.
3. Telephonic hearing. For the first time on appeal, M.J. claims that the judge erred by conducting the hearing by telephone. He argues that that a telephonic hearing did not allow the judge to consider the totality of the circumstances, including assessing the parties’ demeanor. Although the claim is waived, see G.B., 94 Mass. App. Ct. at 397, we note that the judge was expressly authorized to hold a telephonic hearing pursuant to Trial Court Emergency Administrative Orders 20-5 and 20-11. Accordingly, there was no error.
4. Appellate attorney's fees. Relying on Cabot v. Cabot, 55 Mass. App. Ct. 756, 774 n.23 (2002), A.A. argues that M.J. has filed a frivolous appeal. “An appeal is frivolous [w]hen the law is well settled, [and] when there can be no reasonable expectation of reversal” (quotation and citation omitted). Avery v. Steele, 414 Mass. 450, 455 (1993). We agree with A.A. that the appeal is frivolous and that she is entitled to an award of reasonable appellate attorney's fees and costs pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). See Rauseo v Rauseo, 50 Mass. App. Ct. 911, 912-913 (2001). Accordingly, A.A. may file an application for appellate attorney's fees and costs within fourteen days of the date of this decision, and M.J. shall have fourteen days thereafter in which to respond. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
Order dated July 13, 2020, extending abuse prevention order affirmed.
FOOTNOTES
2. Specifically, the order prevented M.J. from abusing or contacting A.A., and required M.J. to stay at least one hundred yards away from A.A.’s residence and workplace. The order also required M.J. to abide by the current “Probate Court orders as to visitation, drop-off and pick-up.”
3. Both parties testified at the extension hearing and were subject to cross-examination. The judge did not make detailed oral or written factual findings, but her decision to issue the protective order make it clear that she credited A.A.’s version of events and rejected M.J.’s conflicting testimony. The facts summarized are those the judge implicitly credited. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), citing Keene v. Gangi, 60 Mass. App. Ct. 667, 667 n.1 (2004).
4. For example, A.A. testified that on April 4, 2020, M.J. sent her the following text: “You ruined everything for me, you fucking bitch.” She further testified that she interpreted the following text as a threat on her life: “Some day, maybe in the next life, you're going to pay for what you've done to me.” A.A. also testified that M.J. referred to her as a “cunt” and told her “dozens of times” that he “fucking hate[d]” her and that she was “the worst thing that ever happened to him.”
5. Although M.J. denied that he tried to enter the house and maintained that he only wanted to talk to his son, he admitted that he “banged on the front doors a few times and yelled.”
6. The record indicates that the judge reviewed twenty-two pages of texts and e-mails, although she admitted only one page of texts in evidence.
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