S.S. v. A.C.G. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, A.C.G., appeals from the extension of an abuse protection order issued in favor of the plaintiff, S.S., following a two-party hearing in the Probate and Family Court. See G. L. c. 209A. He argues on appeal that: his due process rights were violated in the October 7, 2025 extension proceeding; there was not sufficient evidence to extend the 209A order; and the judge improperly denied his motion for relief from judgment under Mass. R. Dom. Rel. P. 60(b). We affirm.

1. Due process. First, the defendant contends that his due process rights were violated in the October 7, 2025 extension hearing because, at the hearing, the judge relied solely on counsel's proffers rather than direct testimony with the opportunity for cross-examination, and because the plaintiff's affidavit was submitted immediately before the hearing. We disagree.

In most cases, a constitutional right is “a right to insist that things be done a certain way, but it is not a right that they be done in that way if the defendant does not choose to insist․ [A] right that must be claimed is not denied if it is not claimed.” Commonwealth v. Amirault, 424 Mass. 618, 641 n.1 (1997). During the hearing, the defendant did not object to the procedure or use of the affidavit. Also, he neither sought to present his own testimony nor requested to cross-examine the plaintiff, who was sworn and available to testify. Cf. C.O. v. M.M., 442 Mass. 648, 657-658 (2004) (defendant explicitly argued for right to call and cross-examine witnesses on at least four occasions). In fact, after presenting his argument, the defendant's attorney concluded that he would “rest on that.” Because the defendant did not raise any due process arguments at the hearing or object to how the hearing was conducted, his claims are waived.

2. Sufficiency. The defendant further claims that there was insufficient evidence to justify the 2025 extension order. To the extent that the defendant disputes the initial extension order and its underlying facts, those arguments are waived because he did not appeal from the initial extension order. See MacDonald v. Caruso, 467 Mass. 382, 388 (2014).

“We review the extension of a c. 209A order for an abuse of discretion or other error of law” (quotation and citation omitted). Latoya L. v. Kai K., 104 Mass. App. Ct. 173, 177 (2024). An abuse of discretion occurs when “a decision resulted from a clear error of judgment in weighing the factors relevant to the decision ․ such that the decision falls outside the range of reasonable alternatives.” Hidalgo v. Watch City Constr. Corp., 497 Mass. 319, 322 (2026), quoting Sutton v. Jordan's Furniture, Inc., 493 Mass. 728, 742 (2024).

A plaintiff seeking an abuse prevention order -- whether initial or its extension -- must prove by a preponderance of the evidence that they are experiencing abuse. See Iamaele v. Asselin, 444 Mass. 734, 736-737 (2005). As relevant here, “abuse” is defined as “placing another in fear of imminent serious physical harm” or exercising “coercive control.” G. L. c. 209A, § 1.

A fear of imminent serious physical harm must be reasonable and current. See Imaele, 444 Mass. at 737. To determine if a plaintiff has met their burden, “a judge must consider the totality of the circumstances of the parties’ relationship,” including: “the defendant's violations of protective orders, ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties’ demeanor in court, [and] the likelihood that the parties will encounter one another in the course of their usual activities.” Id. at 740.

Here, the parties’ relationship and the plaintiff's affidavits demonstrated that the plaintiff had a reasonable and current fear of imminent serious physical harm. The defendant made multiple threatening statements that supported the initial 209A order, including that “Karma is going to come for you” for “killing our child,” that he “absolutely daydream[s] of [the plaintiff] getting hit by a bus,” that daydreaming about a spouse's death was “typical” during a divorce, and that the plaintiff “deserved” his “intentional” vitriol.

After the initial 209A order was granted, and while probate and family court proceedings were ongoing between the parties, the defendant continued to make threats, including to fabricate concerns about the plaintiff's mental health -- stating “I am not sure [the plaintiff] would be employable if there were a public record of those issues.” In communications with their children, the defendant blamed on the plaintiff his inability to see them, referenced the ongoing litigation, and pressured the plaintiff to dismiss the abuse prevention order. Given the circumstances and history of the parties, this is a continuation of the direct threats that the defendant made in the past. The judge was entitled to credit the assertions in the plaintiff's affidavits, and on this record, finding a fear of imminent serious physical harm was not an abuse of discretion.¹

3. Defendant's motion for relief from judgment. The defendant further claims that his motion for relief from judgment under Mass. R. Dom. Rel. P. 60(b) was improperly denied. However, the judge denied that motion without prejudice for failure to comply with Probate and Family Court Standing Order 2-99 (2012), and the defendant later refiled the motion, which was denied on the merits. The defendant did not appeal from the denial on the merits. In this posture, the defendant's argument is not properly before us, and we decline to address it.

Order extending abuse prevention order affirmed.

Order denying motion for relief from judgment affirmed.

FOOTNOTES

1.   As we have found no abuse of discretion in the judge's extension of the 209A order based on the plaintiff's reasonable fear of imminent serious physical harm, we do not reach the question whether proof of abuse would have been sufficient solely on the theory of coercive control. Nan N. v. Rex R., 106 Mass. App. Ct. 601, 611 (2026). See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1.00A commentary (Oct. 2025) (noting that “reasonable fear of physical harm or reduced sense of physical safety” required for coercive control provides lower threshold than “fear of imminent serious physical harm”).