D.S. v. S.R.K. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, S.R.K., appeals from the extension of an abuse prevention order issued in the District Court pursuant to G. L. c. 209A, § 3 (209A order). The defendant contends that the 209A order should not have been extended because the plaintiff, D.S., did not prove that she continued to require protection from abuse. We affirm.

Background. On July 8, 2022, a judge issued an ex parte 209A order directing the defendant not to abuse the plaintiff, not to contact her directly or indirectly, to stay away from her home, to stay one hundred yards away from her, and to surrender all firearms.

A hearing after notice was held before a different judge on August 8, 2022, at which the defendant was represented by counsel and both parties testified. The judge found that the plaintiff had met her burden to show by a preponderance of the evidence that she had been subjected to abuse by the defendant and had a reasonable fear of imminent serious physical harm. The judge extended the 209A order for one year. At hearings in 2023 and 2024, the 209A order was again extended, for one year each time. The defendant did not appeal from any of those extensions of the 209A order.

On August 4, 2025, the extension hearing at issue, at which both parties testified, was held before yet another judge. The plaintiff testified that the defendant had not tried to contact her, but that she was still fearful of the defendant because of the defendant's conduct in July 2022 -- the basis for the original order -- which involved punching, spitting, and slapping. The defendant testified that there were “multiple contradictions” in the plaintiff's prior versions of events, it was the plaintiff who “beat[ ] ․ up” the defendant, and the defendant was too elderly and frail to be a threat to the plaintiff. The judge ruled that he credited the plaintiff's testimony that she believed she had “an ongoing need for the [209A] order,” and extended the 209A order for one year, until August 3, 2026. The defendant appeals.

Discussion. 1. Sufficiency of evidence. The defendant argues that the evidence before the judge at the 2025 extension hearing was insufficient to meet the standard for extension for a 209A order set forth in Iamele v. Asselin, 444 Mass. 734, 739 (2005). We disagree.

To obtain an extension of the 209A order, the plaintiff bore the burden to prove “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.” Iamele, 444 Mass. at 739. The statute defines “abuse” to include “the occurrence of any of the following acts between family or household members: (a) attempting to cause or causing physical harm; [or] (b) placing another in fear of imminent serious physical harm.” G. L. c. 209A, § 1. The 209A order, as extended, does not specify which definition of abuse applied here. We conclude that the judge heard sufficient evidence to find that the plaintiff's ongoing need for protection from abuse included abuse as defined under both G. L. c. 209A, § 1 (a) and § 1 (b).

Where the plaintiff has proven that she was subjected to abuse in the form of physical harm or attempted physical harm as defined in G. L. c. 209A, § 1 (a), to obtain an extension of a 209A order the plaintiff is not required to prove a reasonable fear of imminent future physical abuse. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-187 (2020), citing McIsaac v. Porter, 90 Mass. App. Ct. 730, 733-734 (2016). “Rather, when a plaintiff has suffered physical abuse, a judge may reasonably conclude that a c. 209A order is necessary ‘because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.’ ” Yahna Y., supra at 187, quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). In such circumstances, the extension is based on a “continued need for [the 209A] order to protect the plaintiff from the impact of the violence already inflicted.” Callahan, supra. From the evidence before him at the 2025 extension hearing, the judge could permissibly find that the abuse from which the plaintiff needed ongoing protection was physical abuse as defined in G. L. c. 209A, § 1 (a), and that the physical abuse was still affecting her. See Yahna Y., supra.

Where the plaintiff has proven that she was subjected to abuse in the form of being placed “in fear of imminent serious physical harm” as defined in G. L. c. 209A, § 1 (b), to obtain an extension of the 209A order she must show “a reasonable fear of ‘imminent serious physical harm.’ ” Iamele, 444 Mass. at 739-740, quoting G. L. c. 209A, § 1 (b). The plaintiff testified that she was “fearful” of the defendant because of the past abuse, and the judge credited her testimony. “[T]he judge had the benefit of evaluating the plaintiff's credibility through her testimony and demeanor, and he was entitled to credit her testimony concerning her fear.” Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 397 (2022). The evidence at the 2025 extension hearing also permitted the judge to find that the abuse from which the plaintiff needed ongoing protection was abuse as defined in G. L. c. 209A, § 1 (b), and further that she had a reasonable fear of imminent serious physical harm. See Iamele, supra.

The defendant argues, as she did at the 2025 extension hearing, that the plaintiff's testimony at the 2022 hearing after notice was not credible and contained “multiple contradictions.” At the 2025 hearing, the judge stated that it was not his role to “re-litigate the facts of the case in which the order issued originally.” We agree. At an extension hearing on a 209A order, “a defendant is not entitled to relitigate each stage of the proceedings.” V.M. v. R.B., 94 Mass. App. Ct. 522, 524 (2018), quoting C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 564 (2017). The defendant did not appeal from the extensions of the 209A order in 2022, 2023, or 2024, and is not entitled to use her appeal from the extension in 2025 as a vehicle to relitigate the facts found by other judges at prior hearings.¹

We conclude there was sufficient evidence for the extension of the 209A order.

2. Personal jurisdiction. In 2022, 2023, 2024, and 2025, the defendant appeared in the Stoughton District Court, by video conferencing, at extension hearings pertaining to the 209A order. In this appeal, she argues for the first time that the 209A order and each of its extensions were impermissible because she lives in New York and thus Massachusetts courts lack personal jurisdiction over her under the long-arm statute, G. L. c. 223A, § 3.

A defense of lack of personal jurisdiction is waived if not seasonably raised in a motion or pleading in the trial court. See Mass. R. Civ. P. 12 (h) (1), as appearing in 450 Mass. 1403 (2008); American Int'l Ins. Co. v. Robert Seuffer GMBH & Co. KG, 468 Mass. 109, 119 (2014) (defendant forfeits defense of lack of personal jurisdiction by failing to raise it within reasonable time and prior to litigating merits of case). We conclude that the defendant forfeited the defense of lack of personal jurisdiction by not raising it in the District Court, and thus we do not reach the issue. Even so, we note that “[t]he [209A] order's prohibition against the defendant's abusing, contacting, or approaching the plaintiff ․ does not require personal jurisdiction.” Caplan v. Donovan, 450 Mass. 463, 472 (2008).²

Order entered August 4, 2025, extending G. L. c. 209A order affirmed.

FOOTNOTES

1.   Moreover, we note that, at the 2022 hearing, the defendant admitted, “I started spitting out nasty stuff,” “my natural reaction was to push ․ a person away from me,” and “I did slap her.” Asked by her own counsel if she took out a knife, the defendant replied, “I did.”

2.   In our discretion, the plaintiff's request for appellate attorney's fees pursuant to G. L. c. 211A, § 15, and G. L. c. 231, § 6F, is denied.