M.Y. v. T.H.

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

25-P-137

M.Y.

vs.

T.H.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, T.H., appeals from an abuse prevention order

issued pursuant to G. L. c. 209A, § 3 (209A order). The

defendant argues that the Boston Municipal Court judge abused

his discretion in granting the order as there was insufficient

evidence to prove that the plaintiff, M.Y., had a reasonable

fear of imminent serious physical harm. We affirm.

Background. "We recite the facts based on the record

before us." E.C.O. v. Compton, 464 Mass. 558, 559 (2013). See

Currens v. Board of Assessors of Boston, 370 Mass. 249, 254

(1976) ("An appealing party may not by his brief attempt to

place before an appellate court facts which are not stated or
incorporated in the record on appeal").1 The plaintiff and the

defendant were in an "on and off" relationship from November of

2021 through July of 2023. On May 7, 2024, the plaintiff filed

a complaint for protection from abuse and obtained an ex parte

order ordering the defendant to not abuse or contact the

plaintiff, remain one hundred yards away from her, and stay away

from her residence and workplace. The defendant was also

ordered to surrender any firearms. In the affidavit filed in

support of her complaint, the plaintiff averred, among other

things, that the defendant "grabbed . . . and shoved [her],"

repeatedly refused to move out of her apartment, and threatened

suicide if the plaintiff refused to continue to allow him to

live with her.

On May 21, 2024, a second judge conducted a two-party

hearing that addressed the plaintiff's request for an extension

of the 209A order. Both parties testified and each of them

submitted documentary evidence. At the conclusion of the

hearing, the judge extended the 209A order for one year.

Discussion. General Laws c. 209A permits a person

suffering from abuse by a family or household member to obtain

an abuse prevention order. See E.C.O., 464 Mass. at 562. As

1 To the extent that either party asks us to consider
evidence that was not before the judge, we decline to do so.
See Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019).

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defined under the statute, "abuse" includes "placing another in

fear of imminent serious physical harm." G. L. c. 209A, § 1.

To meet that standard, the plaintiff must meet the subjective

standard that she has a current fear of imminent serious

physical harm as well as the objective standard that the fear is

reasonable. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct.

184, 186 (2020). In determining whether the plaintiff has met

the burden of proof, the judge "must consider the totality of

the circumstances of the parties' relationship." Iamele v.

Asselin, 444 Mass. 734, 740 (2005). We review the extension of

a restraining order for an abuse of discretion or other error of

law. E.C.O., supra at 561-562. "[A] judge's discretionary

decision constitutes an abuse of discretion where [the reviewing

court] conclude[s] 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"

(quotation and citation omitted). L.L. v. Commonwealth, 470

Mass. 169, 185 n.27 (2014). Importantly, "[w]e accord the

credibility determinations of the judge who heard the testimony

of the parties . . . [and] observed their demeanor . . . the

utmost deference." Noelle N. v. Frasier F., 97 Mass. App. Ct.

660, 664 (2020), quoting Yahna Y., supra at 185. Also, where

the judge has not made specific factual findings on the record,

we consider whether the judge had a reasonable basis to find, by

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a preponderance of the evidence, together with all permissible

inferences, that the defendant placed the plaintiff in fear of

imminent serious physical harm. See Frizado v. Frizado, 420

Mass. 592, 597 (1995); G.B. v. C.A., 94 Mass. App. Ct. 389, 396

(2018).

The defendant argues that the plaintiff failed to meet her

burden of proof, in part because the judge improperly relied on

uncorroborated allegations and speculation. However,

independent corroboration is not required. Rather, the judge

could properly rely on the plaintiff's affidavit and testimony.

The affidavit described past physical abuse which resulted

in bruising on the plaintiff's arms, after which she experienced

"panic attacks" and "sobbing fits"; this type of abuse

constitutes a sufficient basis to issue a 209A order. It also

described the defendant's refusal to leave her apartment despite

her multiple requests that he move out, and his months-long

intimidating behavior where the defendant told the plaintiff

that "if [she] kicked him out he'd kill himself." The affidavit

further described an incident where the defendant came to her

apartment unannounced, removed a knife from the console of his

vehicle, and "held [the knife] to his wrist[s] saying he'd slit

them." The plaintiff stated that she feared what the defendant

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was going to do with the knife while she was in the vehicle with

him.2

At the two-party hearing, the plaintiff testified that

after moving out, the defendant continued to contact her and

appear at her workplace after she had asked him to discontinue

communication. She testified that she was scared that the

defendant "might . . . escalate" and that "he ha[d] shoved [her]

before in the past, so [she'd] . . . be concerned something like

that could happen again." Further, the plaintiff testified that

the defendant visited her workplace the day after he was served

with the ex parte order that required he stay away from the

premises. While the defendant testified that "[t]here was never

anything physical or threatening that occurred in the entire

time period we've known each other," the defendant admitted, in

response to the judge's questions, that he had continued to

communicate with the plaintiff, to appear at her workplace, and

that he felt upset "after going months of respecting her, you

know, giving her space, not showing up [at her workplace] when

The defendant argues that the "court" and the police
2

violated his constitutional rights by not serving him with the
plaintiff's affidavit. The defendant cites no authority for
this requirement, and we are aware of none. The defendant was
presumably given the opportunity to review the affidavit at the
two-party hearing: when the affidavit was mentioned, and when
the judge read aloud from the affidavit at the hearing, the
defendant did not object, claim surprise, or ask to see it. The
lack of an objection also waives the issue.

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[he] could have." Indeed, text messages submitted at the

hearing showed the plaintiff's multiple requests to terminate

contact and the defendant's refusal to do so.

It was within the judge's discretion to credit the

plaintiff's affidavit, and her testimony that she feared

physical harm after a previous incident of being shoved and

bruised by the defendant. We conclude that given the totality

of the circumstances the judge had a sound basis to find that

the plaintiff's fear was objectively reasonable.

The defendant argues that the judge violated his

"fundamental due process protections" under the Massachusetts

Declaration of Rights and the Fourteenth Amendment to the United

States Constitution by improperly guiding the plaintiff's

testimony at the extension hearing. We discern no abuse of

discretion. The judge permissibly asked open-ended questions of

both the plaintiff and the defendant to secure relevant

information.3 Trial judges have considerable discretion in

seeking the information they need. See Commonwealth v.

Fitzgerald, 380 Mass. 840, 847 (1980) ("there may be occasions

3 The defendant also argues that the plaintiff violated the
Health Insurance Portability and Protection Act by presenting
medical information to the judge, and that such conduct
discredits her affidavit. As this issue was not raised at the
hearing, it is waived. See Carey v. New England Organ Bank, 446
Mass. 270, 285 (2006).

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in which a trial judge quite appropriately asks questions to

clarify a point, to prevent perjury, or to develop trustworthy

testimony").

Considering the basis for the initial abuse prevention

order and the totality of the circumstances presented at the

hearing, the judge properly exercised his discretion in

extending the 209A order.

Order entered May 21, 2024,
affirmed.

By the Court (Massing, Hand &
Allen, JJ.4),

Clerk

Entered: December 19, 2025.

4 The panelists are listed in order of seniority.

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