M.B. v. A.G.

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

23-P-286

M.B.

vs.

A.G.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On December 30, 2020, M.B. applied for an abuse prevention

order against her estranged husband, A.G., pursuant to G. L.

c. 209A, § 3. In her application, M.B. alleged that A.G. had on

multiple occasions sexually assaulted her and had bitten her and

their son. A District Court judge issued a temporary ex parte

order that day and then -- following a two-party virtual hearing

-- the judge issued a one-year order due to expire on January

13, 2022. The order subsequently was extended on two occasions,

most recently for an additional two years by an order issued

after an evidentiary hearing held on February 8, 2023. A.B. now

challenges the order allowing that extension, arguing

principally that M.B. failed to provide sufficient evidence to

show that she had an objectively reasonable fear of imminent

serious physical harm. A.G. additionally argues that the judge
should not have considered evidence that A.G. allegedly violated

the order, because his actions constituted protected speech. We

affirm.

Background. We summarize the evidence before the judge.

The parties met in May 2015 and began dating. A few weeks into

their relationship, A.G. sent the plaintiff a photograph of the

two of them taken while M.B. was asleep. The caption read, "I'm

going to kill you . . . ." A.G. testified that he intended the

message as a joke.

The parties married in 2018, and their son was born in

2019. In 2020, tensions began to escalate between the parties.

Two primary issues in the marriage were A.G.'s "sexual

aggression" toward the plaintiff and his alcohol use. In June

2020, A.G. attended an alcohol rehabilitation program in

Arizona. During that month, the parties exchanged a series of

email messages in which A.G. acknowledged -- in the context of

his asking M.B. for forgiveness -- that he was "sexually

abusive" to her, which he attributed to his "screwed up history

with sex." M.B. had listed specific instances of A.G.'s sexual

aggression, which she referenced as "sexual abuse" and a

"violation of [her] body." Although M.B. noted that A.G.'s

behavior had "gotten a lot better," she expressed that she still

felt "immediate anxiety" when A.G. initiated sex. Her fear of

A.G. rose to the point where she was afraid to even hug him.

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In July of 2020, M.B. found a bite mark on their son's arm.

She took him to see a doctor, who could not determine if the

bite was caused by a human but nevertheless reported the matter

to the Department of Children and Families (DCF). A DCF social

worker contacted the parties regularly over the following weeks

in an effort to ensure the boy's safety. Both parties told the

social worker that A.G. regularly bit the son. According to

A.G., he bit the child as a joke but unintentionally may have

bitten him too hard on that occasion. A.G. later claimed that

he had not acknowledged such biting to the social worker and

attempted to suggest that the bite may have occurred at the

son's day care. The social worker concluded that A.G. was not

able to provide for the child's safety and that the child was

safest with M.B.

In spite of this, the parties remained in a relationship

through September 2020. According to M.B., "sometimes things

were good, and sometimes things weren't." The parties were

considering having another baby.

In December 2020, the relationship took a turn for the

worse. When M.B. told A.G. in early December that she wanted a

divorce, he threatened to leave with their son. Before leaving

their home, M.B. called the police, telling them that A.G. was

suicidal. A.G. voluntarily admitted himself to the hospital,

and while he was there, M.B. left the home with their son.

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After returning home from the hospital, A.G. filed a police

report alleging that M.B. had "cleaned out their bank accounts."

M.B. filed her application for an abuse prevention order in

District Court shortly after A.G. returned from the hospital.

On the preprinted application form, M.G. checked a box stating

that A.G. had "[p]laced [her] in fear of imminent serious

physical harm." She added that she was afraid of A.G. because

he had threatened to kill himself and "becomes violent and

suicidal when he is angry." M.B. did not check the boxes

stating that A.G. had "[c]aused [her] physical harm" or

"[c]aused [her] to engage in sexual relations by force, threat,

or duress." However, in the affidavit supporting her

application, she swore to several instances of past physical and

sexual abuse. For instance, she said that when A.G. wanted to

have sex and she said no, he "grab[bed] [her] breasts and [her]

butt," restrained her, and "pushe[d] [her] towards the bed and

floor." She also stated that A.G. would continue to have sex

with her even after she told him it hurt and asked him to stop.

In addition to the violence during sexual intercourse, M.B.

described times that A.G. hit her breasts to the point where she

cried, hit her on the buttocks hard enough to leave a welt, and

bit her hard enough to leave a bruise.

A District Court judge issued a temporary abuse prevention

order prohibiting A.G. from contacting M.B., and it ordered him

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to maintain a one hundred foot distance from her. Following a

two-party hearing, the judge issued a one-year order, which was

extended for an additional year. In a parallel divorce

proceeding, a Probate and Family Court judge issued a temporary

order that granted M.B. physical custody of the son, while

maintaining joint legal custody. That same order prohibited

disclosure to A.G. of the addresses where M.B. lived and worked,

as well as the location of the son's daycare.

In April of 2021, A.G. posted a photo on Facebook of their

son as an infant, with a caption consisting of a quote without

attribution that read, "The wicked are ensnared by the works of

their hands." A.G. testified that this was a biblical reference

meant to convey that "justice [had] prevail[e]d" in their

divorce proceedings with respect to custody.1 M.B. found the

post "disturbing," and she viewed it as a threat. In March of

2022, the judge in the divorce proceeding issued a temporary

order under which "[a]ll communications between the parties are

limited to [the subject of] the child and shall be done through

[an application known as] Our Family Wizard" (OFW).

A.G. claimed that as of April 2022, he believed that he and

M.B. "had turned a corner" in their communications. According

1 A.G. also said he believed M.B. would understand the
biblical reference because she had a master's degree in
theology.

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to him, the parties were "sending pictures [of their son] back

and forth," and having light-hearted discussions about him. The

next month, A.G. sent M.B. a message through OFW which he ended

by saying, "I like the glasses!" (in apparent reference to

M.B.'s new eyeglasses). The day after that message, the parties

met at a police station, the required location for exchanging

custody of the son for his visits with A.G. During that

encounter, A.G., while crying and standing between M.B. and the

exit, addressed M.B. by telling her that he wanted to make her

happy.2 M.B. testified that this incident scared her. Shortly

thereafter, A.G. sent a message to M.B. through OFW, ending with

"Happy May 16th, . . . sigh." (in apparent reference to the

anniversary of their first date). M.B. testified that this made

her "feel sick."3

Tensions between the parties continued to escalate and

culminated in a series of messages sent between November 2022

and January 2023. According to the most recent temporary order

issued in the divorce proceeding, M.B. was allowed to cancel

visits between A.G. and the son for nonemergency reasons, with

2 A.G. contested this version of events and testified at the
February 2023 hearing that he said he wanted to make "everybody"
happy, not M.B. specifically.

3 M.B. reported the messages and the incident at the police
station as a violation of the abuse prevention order. A
complaint issued, but the charges eventually were dismissed.

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the provision that she reschedule them within sixty days. On

November 11, 2022, A.G. sent M.B. a message asking her to

explain why she had canceled one of his visits with their son on

August 23, 2022. On January 5, 2023, A.G. sent another message,

demanding a reason for the cancellations and asking if M.B. had

taken their son out of the State. Seven minutes later, he sent

another message, saying, "[W]e have joint legal custody, and

this information you can't withhold." Later that month, M.B.

again canceled A.G.'s time with their son. Suspecting that M.B.

had gone to out of State with the son to visit her parents, A.G.

sent M.B. a message on January 13, 2023, saying he hoped they

"both make it home safely." According to A.G., he was merely

expressing concern for M.B.'s safety, in part because he

surmised that M.B. had taken the son to visit her parents even

though she previously had told him she was sexually abused by

her grandfather and physically abused by her mother. After

sending the message, A.G. confirmed that M.B. had gone out of

State to visit her family by looking at M.B.'s Google calendar.

M.B. had taken steps to block A.G.'s access to her Google

calendar, but those steps apparently were not successful.

M.B. viewed the message from A.G. not in the light he

claims it was intended, but as a threat. She was especially

concerned to think that A.G. seemed to be tracking her

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whereabouts, which he was not supposed to know.4 This made her

"deeply disturbed and scared," and she filed a report with the

local police department on January 18, 2023.5 As she explained

during her testimony at the February 2023 hearing, she

interpreted the message from A.G. as communicating: "I know

what you're doing and where you are, and when you're doing it

. . . he was saying he's watching me, and I didn't know how."

By order docketed on February 10, 2023, a District Court

judge extended the abuse prevention order for another two years.

The judge found that "plaintiff [] met her burden," without

providing further explanation.

Discussion. In the current appeal, A.G. challenges only

the February 2023 order extending the abuse prevention order for

an additional two years. We review the trial court judge's

decision for abuse of discretion or other error of law. E.C.O.

v. Compton, 464 Mass 558, 562 (2013). Where an extension of an

abuse prevention order has been granted, in reviewing the

4At this point, M.B. had taken numerous steps to ensure
that A.G. did not know her location. Shortly before her trip
out of State, she bought a house and worked with the
Massachusetts Address Confidentiality Program to ensure that her
name would not be associated with her address. However, her new
address was listed in her Google calendar, which she did not
know A.G. still could access.

5 The police in fact sought a criminal complaint charging
the defendant with another violation of the abuse prevention
order. Although a complaint issued, it was subsequently
dismissed on A.G.'s motion, without explanation.

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sufficiency of the evidence, we view the evidence in the light

most favorable to the plaintiff. Szymkowski v. Szymkowski, 57

Mass. App. Ct. 284, 285 n.4 (2003). This means, among other

things, that we disregard A.G.'s denials and his claims that his

actions were intended as a joke. Where a reviewing court is

"able to discern a reasonable basis for the order [. . .] no

specific findings [from the issuing judge] are required." G.B.

v. C.A., 94 Mass. App. Ct. 389, 396 (2018). A.G. makes two

arguments, which we address in turn.

1. Sufficiency. We begin by noting that where applicants

can demonstrate that they suffered actual or attempted physical

or sexual harm, their burden is somewhat lessened than for those

who are claiming a reasonable fear of imminent serious physical

harm. See Callahan v. Callahan, 85 Mass. App. Ct. 369, 373

(2014), quoting Iamele v. Asselin, 444 Mass. 734, 740 n.3 (2005)

("[i]f a plaintiff were suffering from attempted or actual

physical abuse or involuntary sexual relations, there is no

question that an extension should be granted"). See also G. L.

c. 209A, § 1 (defining "abuse" as "attempting to cause or

causing physical harm," "placing another in fear of imminent

serious physical harm," or "causing another to engage

involuntarily in sexual relations by force, threat or duress").

Although there plainly was evidence before the judge that M.B.

suffered "actual physical abuse or involuntary sexual relations"

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at the hands of A.G., Iamele, supra, A.G. suggests that our

review is confined to whether she can prove continued fear of

imminent serious physical harm, because that was the only stated

basis of her initial request (based on which box she checked on

the preprinted form). We are not persuaded.

There was nothing hidden about the nature of M.B.'s factual

allegations. Her supporting affidavit contained information

about both her fear of future harm and the past physical harm

she and their son suffered at the hands of A.G. It described in

detail the various forms of unwanted physical and sexual

touching to which A.G. subjected her, including forcibly

grabbing intimate areas of her body and continuing to have sex

with her when she refused. At least where, as here, a defendant

is unable to claim unfair surprise, we do not view a party's

failure to check the applicable boxes as limiting our review.

Moreover, even if the judge's review had been limited to

whether M.B. had demonstrated that she had an objectively

reasonable, subjective fear that A.G. would cause her imminent

serious bodily harm, there was ample evidence to support that

finding, including the evidence of the past physical and sexual

abuse she suffered. Contrary to A.G.'s arguments, the judge not

only could consider the factual record previously established in

weighing whether to extend the order, he was required to do so.

See Iamele, 444 Mass. at 740 ("In evaluating whether a plaintiff

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

circumstances of the parties' relationship"). The evidence that

M.B. had suffered past physical and sexual abuse by A.G. was

ample. Indeed, A.G. acknowledged in his June 2020 email message

that he was "sexually abusive" to her. This included the

forcible sex referenced above, as well as acts such as hitting

M.B.'s breasts with enough force to make her cry and biting her

"hard enough to leave a bruise." Given the severity of the

abuse she suffered, M.B.'s statements that she felt "scared" and

"on edge" when A.G. blocked her exit in the police station in

May 2022, and that she was "deeply disturbed and scared" when

A.G. sent her the January 2023 message suggesting he knew that

she was out of State, were sufficient to show her subjective

fear.

A.G.'s history of abuse toward M.B. also made her fear

objectively reasonable. See Vittone v. Clairmont, 64 Mass. App.

Ct. 479, 487 (2005) ("[T]he nature and duration of a

relationship, as well as any prior history of violence, threats,

or hostility within it" are necessary contexts "for assessing

the reasonableness of an applicant's fear of imminent serious

physical harm"). There was ample record evidence on which the

judge could conclude that it was reasonable for M.B. to continue

to fear imminent serious physical harm from A.G. when he blocked

her exit at the police station and when he suggested he knew how

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to find her. He in fact acknowledged the actions he took to

track down where she was living.

2. First Amendment. A.G. separately argues that the judge

could not consider statements that he had made to M.B. that she

claimed had placed her in fear, because those statements

encompassed speech protected by the First Amendment to the

United States Constitution.6 There is no merit to this argument.

"While an abuser has a right to speak his mind freely in any

number of forums, he has no right to seek out and contact the

victim of his abuse, forcing that victim to endure his unwanted

and destructive presence in her life." Commonwealth v.

Thompson, 45 Mass. App. Ct. 523, 525 (1998).

Extension order entered
February 10, 2023,
affirmed.

By the Court (Milkey, Henry &
Desmond, JJ.7),

Assistant Clerk
Entered: April 26, 2024.

6 In fact, A.G. argues that the dismissal of the criminal
charges that he had faced for allegedly violating the abuse
prevention order somehow conclusively establish the protected
nature of the actions he had taken. Putting aside that the
reason why the charges were dismissed is not apparent on the
record before us, any determination made by the judge in that
proceeding would not be binding on M.B., who was not a party to
the criminal case.

7 The panelists are listed in order of seniority.

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