C.M. v. S.M.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-722

C.M.

vs.

S.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an abuse prevention order issued

under G. L. c. 209A by a judge of the Probate and Family Court.

The defendant contends that the judge abused her discretion by

granting the order because the plaintiff failed to prove that

she had an objectively reasonable fear of imminent serious

physical harm. We affirm.

Background. We summarize the judge's detailed factual

findings. The parties were married in 2011 and had two children

together. They divorced in January 2024. The parties'

separation agreement, which was incorporated into the divorce

judgment, provided that they would share legal and physical

custody of the children and would communicate with each other
exclusively through a parenting application, AppClose, and

regarding issues related to the children only.

On February 19, 2024, while the children were with the

plaintiff, the defendant called the plaintiff's cell phone

multiple times between 9 A.M. and 9:30 A.M. He then called one

of the children's cell phones and said that they were late for

his parenting time. When the plaintiff interjected and reminded

the defendant that they had agreed to switch days, the defendant

screamed at her, causing her to hang up. The plaintiff then

sent the defendant a message through AppClose, agreeing to bring

the children to his home around 10 A.M. Later that evening the

defendant sent the plaintiff a message stating that he "should

have had the police involved" because she did not bring the

children to him at 9 A.M.

Over the following weeks, the parties continued to have

conflicts regarding parenting time, as evidenced by messages

they exchanged over AppClose. The defendant also called the

plaintiff repeatedly. On February 25, 2024, the defendant

called the plaintiff four times between 8:03 P.M. and 8:45 P.M.;

on February 29 he called her three times between 7:47 A.M. and

8:42 A.M. The plaintiff did not answer any of these calls.

Later on February 29, the defendant sent the plaintiff several

messages over AppClose telling her multiple times to "get a job"

and accusing her of taking his money and "on purpose try[ing] to

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fuck [him] over." On March 30 the defendant called the

plaintiff eleven times between 8:40 A.M. and 11 A.M.

In May 2024 the plaintiff filed a complaint for civil

contempt against the defendant, claiming that he violated the

divorce judgment in several ways, including by contacting her

outside of AppClose. On May 10, one week after being served

with the contempt complaint, the defendant showed up at the

children's baseball practice, which was scheduled during the

plaintiff's parenting time. Upon arriving, the defendant parked

his car right next to the plaintiff's even though there were

other available spaces in the parking lot. This caused the

plaintiff to move her car to another space.

After the plaintiff got out of her car and began to watch

the practice with some of her friends, the defendant approached

and began to swear and yell at her about various things. He

appeared to be intoxicated, and his "behavior seemed different"

to the plaintiff "than at any other time during the parties'

history together." The plaintiff left her seat and returned to

her car, where she continued watching the practice. The

defendant followed her and began pacing around the car, yelling

at the plaintiff about various things, while also yelling and

swearing loudly on his phone about the pending contempt action.

After being yelled at for some time, the plaintiff told the

defendant that she would call the police if he did not go away

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and stop talking to her. The defendant stopped yelling at this

point and stood behind the plaintiff's car.

At the end of the practice, the defendant walked the

children to the plaintiff's car and put them in their seats. He

then walked around to where the plaintiff was sitting in the

driver's seat and "began banging on the window." The plaintiff

did not respond and waited for the defendant to leave, which he

did eventually.

The next day, a Saturday, the plaintiff took the children

to a baseball game. The defendant arrived and at one point sat

down right next to the plaintiff. When the game ended, "the

[d]efendant yelled at the [p]laintiff in front of a crowd of

people that the [d]efendant knew that the [p]laintiff had not

called the police the day before because he had called the

police and talked to the police himself."

The following Monday, the plaintiff sought and obtained an

ex parte abuse prevention order on behalf of herself. A two-

party hearing was held on May 23, 2024. After the hearing, at

which both parties were represented by counsel, the judge

extended the ex parte order for one year.

Discussion. We review the issuance of an abuse prevention

order "for an abuse of discretion or other error of law."

Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020),

quoting E.C.O. v. Compton, 464 Mass. 558, 562 (2013). An abuse

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of discretion exists only where "the judge made a clear error of

judgment in weighing the factors relevant to the decision . . .

such that the decision falls outside the range of reasonable

alternatives" (quotations and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

To be entitled to an abuse prevention order, "a plaintiff

must prove by a preponderance of the evidence that an order is

'necessary to protect her from the likelihood of abuse.'"

Calliope C. v. Yanni Y., 103 Mass. App. Ct. 722, 725 (2024),

quoting Iamele v. Asselin, 444 Mass. 734, 739 (2005). As

relevant here, "[a]buse" is defined as "placing another in fear

of imminent serious physical harm." G. L. c. 209A, § 1 (b). A

plaintiff has the burden of proving both that she was in fear of

imminent serious physical harm and that her fear was reasonable.

See Iamele, supra at 737. "In evaluating whether a plaintiff

has met her burden, a judge must consider the totality of the

circumstances of the parties' relationship." Constance C. v.

Raymond R., 101 Mass. App. Ct. 390, 394 (2022), quoting Iamele,

supra at 740.

The defendant's argument on appeal is that the plaintiff

failed to prove that her fear of imminent serious physical harm

was reasonable.1 Based on the plaintiff's testimony, however,

1 To the extent the defendant argues that the plaintiff
failed to prove that she was subjectively in fear, the judge

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which the judge credited, the judge was within her discretion to

conclude otherwise. In so concluding, the judge gave

"significant weight to the escalating threatening conduct by the

[d]efendant." As the judge found, in the weeks following the

parties' divorce, the defendant repeatedly called the plaintiff

in violation of the divorce judgment and sent her written

messages showing that he was angry about the terms of their

separation agreement. After the plaintiff filed a contempt

complaint, the defendant arrived intoxicated at the children's

baseball practice and parked his car right next to the

plaintiff's even though there were other spaces available. The

defendant then yelled at the plaintiff, followed her when she

tried to disengage, paced around her car while yelling and

swearing loudly about the contempt action, and banged on her car

window. In light of this escalating behavior, the judge was

within her discretion to find that the plaintiff's "fear was

reasonable, especially viewed in the context of recent

found to the contrary based on the plaintiff's "credible
testimony and the [judge's] own observations during the
hearing." We defer to this determination, which is supported by
the plaintiff's testimony that the defendant's behavior made her
"nervous for [herself]," "nervous of what his plans were" and
"what . . . he was going to do next," "afraid for [herself],"
and "afraid of what will happen next." See Noelle N., 97 Mass.
App. Ct. at 664 ("We accord the credibility determinations of
the judge who heard the testimony of the parties . . . [and]
observed their demeanor . . . the utmost deference" [quotations
and citation omitted]).

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interactions between the parties." See Noelle N., 97 Mass. App.

Ct. at 665-666 (judge properly found plaintiff's fear reasonable

where defendant engaged in "erratic and escalating behavior,"

which "arose in the context of a vigorous dispute over parenting

time with the minor children"); Ginsberg v. Blacker, 67 Mass.

App. Ct. 139, 143-144 (2006) (judge properly found plaintiff's

fear reasonable where defendant engaged in increasingly erratic

behavior, culminating in incident in which he screamed at

plaintiff and flailed hands close to her face).

Contrary to the defendant's suggestions, the plaintiff did

not need to offer evidence of physical violence or overt threats

to prove that her fear was reasonable. See Noelle N., 97 Mass.

App. Ct. at 665. "[E]rratic and unstable behavior, in the

context of an escalating and emotional argument, can create a

reasonable apprehension that force might be used" (quotations

and citation omitted). Id. Here, the judge's detailed factual

findings support her determination that the plaintiff had a

reasonable fear of imminent serious physical harm, given the

defendant's erratic and escalating behavior. There was no abuse

of discretion.

The plaintiff has requested an award of appellate

attorney's fees but has failed to provide a basis for the

request. To the extent the plaintiff is claiming that the

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appeal is frivolous, we deny her request in the exercise of our

discretion.

Order dated June 11, 2024,
extending abuse prevention
order affirmed.

By the Court (Neyman, Shin &
Wood, JJ.2),

Clerk

Entered: March 13, 2025.

2 The panelists are listed in order of seniority.

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