S.M. v. R.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

22-P-751

S.M.

vs.

R.M.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order extending a G. L.

c. 209A abuse prevention order. She contends that the extension

of the order should be vacated because: (1) the plaintiff

failed to satisfy his burden of proof, (2) the judge failed to

address the plaintiff's "false statements," and (3) the judge

violated her due process rights. We affirm.

Background. On March 8, 2022, following an ex parte

hearing, a District Court judge issued an abuse prevention order

(order) on behalf of the plaintiff, S.M., and against the

defendant, R.M.1 On March 18, 2022, following a hearing attended

1 The plaintiff and defendant were married at the time of the
issuance of the order as well as the events at issue in this
appeal.
by both parties,2 and at which the defendant (but not the

plaintiff) was represented by counsel, a different District

Court judge extended the order to May 3, 2022.3 On May 3, 2022,

following another hearing before the first judge, the order was

extended for one year. It is from this May 3, 2022, extension

order that the defendant now appeals.

Discussion. 1. Standard of review. We review the

extension of a 209A 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). "[A] judge's discretionary decision constitutes an

abuse of discretion where we conclude 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

2 The plaintiff and defendant testified at the March 18, 2022,
hearing. The defendant's daughter, who was also the plaintiff's
stepdaughter, also testified at that hearing.
3 At the March 18, 2022, hearing, the plaintiff testified, inter

alia, that on the evening of March 7, 2022, he "was awoken to a
slate tile hurled in my direction, followed by a slew of toys
and a floor lamp slammed down multiple times." At least one of
the objects, thrown by the defendant, struck the floor and
"impacted" the plaintiff's left hip. The plaintiff suffered a
small bruise on his leg from the incident, and the defendant was
criminally charged due to the incident. The plaintiff further
testified that he was afraid that the defendant would harm him
and was presently in fear of the defendant. The defendant
acknowledged that she dropped the tile slate on the floor to
"get [the plaintiff's] attention," but her testimony otherwise
largely contrasted the plaintiff's version of events.

2
reasonable alternatives" (citation omitted). L.L. v.

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

2. Analysis. The defendant first argues that evidence at

the extension hearing did not demonstrate a basis for a finding

that the plaintiff was in reasonable fear of imminent serious

physical harm within the meaning of G. L. c. 209A. She further

contends that the judge failed to address the plaintiff's "false

statements." The arguments are unavailing.

As noted above, a judge has discretion to issue a

protective order under G. L. c. 209A if the defendant is

"placing another in fear of imminent serious physical harm."

Iamele v. Asselin, 444 Mass. 734, 737 (2005), quoting G. L.

c. 209A, § 1. The touchstone of the court's analysis is whether

the plaintiff is "currently in fear of imminent serious physical

harm" and whether that "fear is reasonable." Id. "In

evaluating whether a plaintiff has met her burden, a judge must

consider the totality of the circumstances of the parties'

relationship." Id. at 740. Here, the judge could have found,

and did find, that the defendant threw a "slate" at the

plaintiff; that the slate shattered and struck the plaintiff on

the left hip; that three years earlier the defendant had thrown

a large beer mug at the plaintiff; and that five months prior to

the plaintiff's testimony at the extension hearing, the

defendant had thrown a "Blue Moon pint glass" at the plaintiff.

3
The plaintiff testified to repeated assaultive behavior by the

defendant and the judge explicitly credited the plaintiff's

testimony.4 The judge determined that the plaintiff had "met his

burden" and was "in fear of harm from the [d]efendant regarding

her assaultive behavior on the date in question that gave rise

to the [underlying] criminal case." The record supports the

judge's findings, and we cannot substitute our judgment for

hers. Indeed, when determining the continuing need for the

order, the judge was in the best position to examine the parties

and weigh their credibility. See Demoulas v. Demoulas Super

Mkts., Inc., 424 Mass. 501, 526 (1997). See also Yahna Y. v.

Sylvester S., 97 Mass. App. Ct. 184, 185 (2020) ("We accord the

credibility determinations of the judge who 'heard the testimony

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

utmost deference" [citations omitted]).

Finally, the defendant contends that the judge deprived her

of her due process right to a fair hearing. This argument is

likewise unavailing. Evidentiary rulings are committed to the

sound discretion of the judge. See A.P. v. M.T., 92 Mass. App.

Ct. 156, 161 (2017) (judge has broad discretion in ruling on

evidentiary issues). In addition, the guidelines for abuse

4 The plaintiff testified at the May 3, 2022, hearing, and was
cross-examined at length. The defendant did not testify and did
not call any witnesses.

4
prevention proceedings state, in relevant part, "[e]ach party

must be given a meaningful opportunity to challenge the other

party's evidence in any contested hearing." Guidelines for

Judicial Practice: Abuse Prevention Proceedings § 1:02(f) (Oct.

2021). Here, the transcript reveals that the judge conducted a

comprehensive hearing, considered the defendant's arguments,

allowed substantial and detailed cross examination of the

plaintiff, credited the plaintiff's testimony, and determined

that the plaintiff was "in fear of imminent serious physical

harm." G. L. c. 209A, § 1. Furthermore, the defendant neither

testified nor called any witnesses to testify. The transcript

does not reveal any evidentiary rulings that constituted an

abuse of discretion or deprived the defendant of the meaningful

opportunity to examine the plaintiff's evidence or be heard.

See A.P., supra at 161. The defendant received a fair hearing

5
and thus we affirm the May 3, 2022, extension of the abuse

prevention order.5

Order entered May 3, 2022,
affirmed.

By the Court (Rubin, Neyman &
Walsh, JJ.6),

Clerk

Entered: November 17, 2023.

5 Other points, relied on by the defendant but not discussed in
this decision, have not been overlooked. We find nothing in
them that requires further discussion. See Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
6 The panelists are listed in order of seniority.

6