M.L. v. B.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

25-P-721

M.L.

vs.

B.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an abuse prevention order issued

against him by a judge of the District Court after a two-party

hearing with notice, see G. L. c. 209A, §§ 1, 3, and from the

judge's denial of three posthearing motions. We affirm.

Background. We summarize the relevant facts and procedural

history, reserving certain details for later discussion. On

January 31, 2025, the plaintiff obtained an ex parte abuse

protection order against the defendant. See G. L. c. 209A, § 4.

In her affidavit, filed in support of her claim, the plaintiff

averred that since a Probate and Family Court judge awarded her
sole legal and primary physical custody of the parties' child,1

the defendant had intimidated and frightened her through

"continued episodes of harassment," including "sending multiple

threatening emails" to the plaintiff and her lawyer. The

plaintiff also represented in her affidavit that on November 18,

2024, the defendant followed the plaintiff and their child, who

was ill, into a supermarket parking lot where he "demand[ed] in

an angry and aggressive tone that [she] hand over [the child]"

for the defendant's parenting time. When the plaintiff did not

comply, the defendant followed her into the supermarket, making

her "very upset and nervous." The plaintiff cited this incident

as an example of the defendant's "pattern of harassing behaviors

and threatening conduct."

The matter was scheduled for a two-party hearing with

notice to the defendant; that hearing was held before a District

Court judge2 on February 14, 2025. Both parties appeared at the

hearing and testified. Plaintiff's counsel informed the judge

about the custody matter between the parties in the Probate and

Family Court, as well as that the defendant had filed a pending

1 The child was five years old at the time of the two-party
hearing in February 2025.

2 The matter was apparently transferred after the ex parte
order issued; the judge at the two-party hearing is not the same
judge who issued the ex parte order.

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appeal in that matter. The judge reviewed a gatekeeper order

that a Probate and Family Court judge entered against the

defendant in response to his "excessive filings" during the

custody litigation. The judge also reviewed copies of

communications that the defendant had sent to the plaintiff

through e-mail and a parenting application, Our Family Wizard;

plaintiff's counsel alleged that the messages "threatened . . .

continued court action" and "violent contempts."3 After

reviewing the messages, the judge noted that "every single email

is acrimonious and unpleasant" and that the defendant was "very

antagonistic," but the judge found that the messages included

"nothing . . . that's threatening."

The judge asked the plaintiff additional questions about

her reasons for seeking an extension of the order. The

plaintiff testified, inter alia, that "there were moments" of

"physical aggression, like hitting walls, banging walls"; that

the defendant punched a hole in something when he was not given

help cleaning something up; and that when the plaintiff was

pregnant, there was an instance in which the parties "got in an

argument," the plaintiff "smacked" the defendant, and then the

3 It is not clear from the record whether the messages in
the appellate record are the same ones that were introduced at
the hearing, but nothing in our decision depends on that point.

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defendant "kicked the door down off the hinges," almost hitting

her. The plaintiff also told the judge that during her

approximately four-year relationship with the defendant, he had

"scream[ed] at [her] in [her] face" and that this type of

conduct was "just constant." The plaintiff testified,

consistent with her affidavit, about the incident a few months

earlier when the defendant followed her into the supermarket

after she took their child to a medical appointment. She told

the judge that the child saw the defendant's behavior and later

asked "why daddy was yelling at [her]."

In response to the judge asking whether she was "afraid

that [the defendant] . . . will physically harm [her]," the

plaintiff answered, "Yes." Asked if her fear was "based upon

[the defendant's] emails," the plaintiff responded that it was

"based upon knowing our past" and on her experience with the

defendant's conduct "when he doesn't get his way." She also

told the judge that she was "worried about the escalation" of

the defendant's conduct in connection with the custody judgment.

The defendant testified that he had never threatened the

plaintiff, that the plaintiff's account of the incident during

her pregnancy was "a blatant lie," and that he went to the

supermarket to obtain information from the pharmacist about how

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to treat the child's illness during the parenting time he

expected to have that day, not to follow the plaintiff.

After considering the evidence, the judge made clear oral

findings on the record that (1) although the defendant's e-mail

and Our Family Wizard messages involved "nothing that . . .

actually comes out and threatens," the defendant's conduct was

"threatening" and "menacing," (2) the defendant's conduct was

"escalating," causing the plaintiff to fear him, and

(3) inferentially, the plaintiff's fear was reasonable.4 The

judge extended the ex parte order for one year. The defendant

filed posthearing motions for findings of fact and rulings of

law, for reconsideration, and to reopen the case to introduce

additional evidence. The judge denied each of these motions and

this appeal followed.

Discussion. 1. Extension of ex parte order.5 A plaintiff

seeking an extension of an ex parte abuse prevention order at

the hearing after notice bears the burden of proving by a

preponderance of the evidence that the plaintiff is suffering

4 The judge said, "I can see [the plaintiff's] concern for
escalation."

5 Although the defendant argues that the ex parte order
should not have issued, because we affirm the subsequent order
after notice, the ex parte order has been superseded and that
matter is moot. See V.M. v. R.B., 94 Mass. App. Ct 522, 524-525
(2018).

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from abuse. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660,

664 (2020). As relevant here, "abuse" is defined as "placing

another in fear of imminent serious physical harm."6 G. L.

c. 209A, § 1. "When a person seeks to prove abuse by 'fear of

imminent serious physical harm,' our cases have required in

addition that the fear be reasonable" (citation omitted).

Iamele v. Asselin, 444 Mass. 734, 737 (2005). The judge must

consider the evidence of the defendant's "words and conduct 'in

the context of the entire history of the parties' hostile

relationship.'" Vittone v. Clairmont, 64 Mass. App. Ct. 479,

487 (2005), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 930

(1999).

"We review the extension of a c. 209A order 'for an abuse

of discretion or other error of law.'" Latoya L. v. Kai K., 104

Mass. App. Ct. 173, 177 (2024), quoting Constance C. v. Raymond

R., 101 Mass. App. Ct. 390, 394 (2022). "[W]e will not

substitute our judgment for that of the trier of fact. We do,

however, scrutinize without deference the propriety of the legal

6 General Laws c. 209A, § 1, provides four alternative
definitions of "abuse." We affirm under the second definition.
G. L. c. 209A, § 1 (subsection "[b]" under "abuse").
Accordingly, although the parties dispute whether the plaintiff
proved her entitlement to an extension of the ex parte order
based on her showing of abuse by "coercive control," see G. L.
c. 209A, § 1, we need not and do not reach that question.

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criteria employed by the trial judge and the manner in which

those criteria were applied to the facts." Calliope C. v. Yanni

Y., 103 Mass. App. Ct. 722, 725 (2024), quoting Commonwealth v.

Boucher, 438 Mass. 274, 276 (2002). In conducting our review,

"[w]e accord the credibility determinations of the judge who

heard the testimony of the parties . . . [and] observed their

demeanor . . . the utmost deference" (quotation omitted).

Noelle N., 97 Mass. App. Ct. at 664, quoting Yahna Y. v.

Sylvester S., 97 Mass. App. Ct. 184, 185 (2020).

It is apparent from the transcript of the two-party hearing

that the judge permitted both parties an opportunity to present

their evidence and arguments and that he conducted an even-

handed assessment of the evidence. See C.O. v. M.M., 442 Mass.

648, 659 (2004) (incumbent on judge to ensure "all parties be

given a fair and equal opportunity to be heard" at extension

hearing). Moreover, and critically, we can readily discern the

basis of the judge's decision to extend the order from the

factual findings he made on the record. This is because the

judge credited the plaintiff's account of past threats to her

physical safety, an escalation in the defendant's "menacing"

behavior, and the plaintiff's resulting fear (which the judge

found reasonable). The judge was also aware of the defendant's

ongoing dissatisfaction with the judgment granting the plaintiff

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primary custody of the parties' child.7 See Iamele, 444 Mass. at

740 (factors judge should consider in deciding whether to extend

abuse prevention order include, inter alia, "ongoing child

custody or other litigation that engenders . . . hostility");

Vittone, 64 Mass. App. Ct. at 486-487. Given the judge's

findings, we are satisfied both that the plaintiff demonstrated

her entitlement to the order based on her reasonable fear of

imminent serious physical harm and that the judge acted within

his discretion in extending the ex parte order on that basis.

See G. L. c. 209A, § 1.

2. Posthearing motions. a. Motion for findings of fact

and rulings of law. As we have noted, the judge made the

findings required to explain his order, including explicit

credibility determinations, clearly and specifically on the

7 We are not persuaded that the judge abused his discretion
by considering information provided by the plaintiff and her
attorney about a report prepared in the custody action by a
guardian ad litem. The defendant's hearsay objection was
properly overruled; in this context, it is well-settled that the
rules of evidence "regarding hearsay . . . should be applied
with flexibility, subject to considerations of fundamental
fairness." Noelle N., 97 Mass. App. Ct. at 661 n.3. More to
the point, to the extent that plaintiff's counsel provided some
general examples of the information included in the report, the
evidence was cumulative of testimony the plaintiff gave at the
hearing that the judge credited. Cf. Adoption of Cecily, 83
Mass. App. Ct. 719, 724 (2013) (assuming arguendo that evidence
was improperly admitted at trial, defendant was not prejudiced
where evidence "was merely cumulative of properly admitted
evidence").

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record during the hearing. The judge was not required to

provide the written findings and rulings that the defendant

sought. See G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018)

(where appellate court is "able to discern a reasonable basis

for the order in the judge's rulings and order, no specific

findings are required").

b. Motion for reconsideration. The defendant's challenge

to the denial of his motion for reconsideration turns on his

contention that the plaintiff obtained the extension by "fraud."

The argument is not persuasive. We recognize that in the

plaintiff's affidavit and in her hearing testimony, the

plaintiff characterized the defendant's communications to her

and her lawyer as "threatening." We also acknowledge that the

judge interpreted the communications somewhat differently; he

concluded that they did not include direct threats but that the

defendant's behavior had escalated and his conduct was

threatening. We do not, however, find anything in the record to

show that the judge discredited the plaintiff based on this

difference in perspective -- to the contrary, the judge

explicitly found that the messages had a consistently "angry"

and "acrimonious" flavor.

Moreover, the judge's decision did not depend on the

accuracy of the plaintiff's assessment of the messages as

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threats. The judge's contemporaneous findings reflect that

although he did not find that the defendant's messages were

threatening, he did consider their tone and found that they were

angry; he also took into account the plaintiff's testimony about

the defendant's past history of violence, the ongoing appeal

from the custody judgment, the defendant's "escalating" conduct,

and the plaintiff's resulting fear. The defendant's motion for

reconsideration was, at bottom, a challenge to the judge's

credibility assessments. Given the deference we accord to those

assessments, see Noelle N., 97 Mass. App. Ct. at 664, we decline

to disturb the judge's denial of the motion.

c. Motion to reopen the evidence. We are likewise

unpersuaded that the judge infringed on the defendant's right to

due process by denying his motion to reopen the hearing to

present additional evidence. See Dominick v. Dominick, 18 Mass.

App. Ct. 85, 90 (1984) (whether to reopen trial for new evidence

is left to discretion of trial judge). Nothing in the

defendant's original motion or in his appellate briefing

supports his claim that the evidence he sought to introduce at a

reopened hearing -- a video recording refuting the plaintiff's

account of his conduct in the supermarket parking lot,

additional messages sent between the parties through Our Family

Wizard, and messages between the plaintiff and others, including

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her attorney and the child's doctor -- was "previously

unavailable, wrongfully omitted, or not submitted due to

procedural limitations," as the defendant suggests.

"[A] motion that seeks to vacate retroactively an order
issued under c. 209A 'on the ground of newly discovered
evidence cannot properly be granted unless it is found that
the evidence relied on was not available to the party
seeking [relief] for introduction at the original trial by
the exercise of reasonable diligence . . . .'"

Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 775 (2005), quoting

DeLuca v. Boston Elevated Ry. Co., 312 Mass. 495, 497 (1942).

The defendant has not demonstrated that he made the required

showing through his motion, and we therefore discern no abuse of

discretion in the judge's decision to deny the motion to reopen

the evidence. See Dominick, 18 Mass. App. Ct. at 90. See also

Weber v. Coast to Coast Med., Inc., 83 Mass. App. Ct. 478, 481

(2013).

3. Defendant's remaining arguments. The defendant's

remaining arguments on appeal were not preserved below and are

waived. See, e.g., G.B., 94 Mass. App. Ct. at 397.

4. Plaintiff's requests for appellate attorney's fees.

"If an appellate court determines that an appeal in a civil case

is frivolous, it may award just damages and single or double

costs to the appellee, and such interest on the amount of the

judgment as may be allowed by law." Mass. R. A. P. 25, as

appearing in 481 Mass. 1654 (2019). The plaintiff cites this

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rule and requests that we award her appellate attorney's fees.8

Although we exercise our discretion to decline the plaintiff's

request, we emphasize that our decision is exactly that -- an

exercise of discretion. Our ruling should not be read as a

determination that the request lacked a proper basis. See Avery

v. Steele, 414 Mass. 450, 455 (1993).

Order extending G. L. c. 209A
order, entered February 14,
2025, affirmed.

Order denying motion for
findings of fact and
conclusions of law
affirmed.

Order denying motion for
reconsideration affirmed.

Order denying motion to
reopen and admit additional
evidence affirmed.

By the Court (Henry, Singh &
Hand, JJ.9),

Clerk

Entered: April 24, 2026.

8 As one of the reasons for her request, the plaintiff cites
concerns that the defendant used generative artificial
intelligence in drafting his appellate brief. Without deciding,
we note that at least two of the cases cited in the defendant's
brief do not exist and that we are unable to find cases
supporting certain quoted language in the brief.

9 The panelists are listed in order of seniority.

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