Calliope C. v. Yanni Y.

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23-P-200 Appeals Court

CALLIOPE C. vs. YANNI Y.1

No. 23-P-200.

Middlesex. December 1, 2023. - February 9, 2024.

Present: Wolohojian, Milkey, & D'Angelo, JJ.

Abuse Prevention. Protective Order.

Complaint for protection from abuse filed in the Framingham
Division of the District Court Department on November 1, 2022.

A hearing on the complaint for protection was had before
David W. Cunis, J.

Melissa Levine-Piro (Amanda Castro also present) for the
plaintiff.

D'ANGELO, J. A District Court judge declined to issue a

G. L. c. 209A abuse prevention order (209A order) against the

defendant. The plaintiff appeals from the judge's order and

argues that the judge erred by applying the wrong legal standard

and by incorporating irrelevant considerations into his

1 The parties' names are pseudonyms.
2

analysis. On January 12, 2024, we issued an order reversing the

judge's order denying the plaintiff a 209A order against the

defendant and remanding for further proceedings. This opinion

states the reasons for that order.

Background. On November 1, 2022, the plaintiff applied for

an ex parte abuse prevention order against her ex-boyfriend2

pursuant to G. L. c. 209A. The plaintiff's affidavit asserted

that the following events occurred. The defendant sent her

threatening messages via Instagram. She responded by telling

the defendant to leave her and her family alone. The defendant

then stated that he was on his way to the plaintiff's house and

that he would see the plaintiff in fifteen minutes. He started

calling the plaintiff repeatedly and sent her additional

threatening messages. The plaintiff's affidavit also asserted

that the defendant "had a history of physically and emotionally

abusing [her]" while they were dating. The judge granted the ex

parte 209A order and scheduled a two-party evidentiary hearing

for November 16, 2022.

2 At a subsequent hearing, both parties testified that they
were previously in a dating relationship, which, if the
relationship was substantive, is one circumstance in which a
judge may issue an abuse prevention order. See G. L. c. 209A,
§ 1. The defendant, moreover, did not argue at the hearing that
the parties were not in a substantive dating relationship. He
did not file an appellate brief in this matter.
3

Both parties appeared with counsel for a hearing on whether

a 209A order should be issued against the defendant. The

plaintiff testified that she and the defendant dated from June

of 2017 to June of 2020. She stated that, during their

relationship, the defendant had committed several acts of

violence towards her, including striking her in the face and

destroying her cell phone in front of her, and that the

defendant had verbally threatened her on multiple occasions.

The plaintiff also stated that, after the parties ended their

relationship in 2020, they had no interaction for more than a

year.

On November 1, 2022, after having no contact for over a

year, the defendant sent a direct message to the plaintiff via

Instagram.3 In response to the message, the plaintiff wrote the

defendant, "[P]lease don't contact me or my family from this

point forward." After other messages from the defendant, the

plaintiff responded, "Leave me and my family alone," and, "Stop

victimizing me with the past. I'm not yours to hurt anymore.

My family and I have moved on it's time for you to as well."

Ignoring these requests, the defendant replied, "See you in 15

if your [sic] home." He then proceeded to place eleven

telephone calls to the plaintiff over the next twenty minutes,

3 Copies of the following messages between the parties were
introduced in evidence.
4

none of which the plaintiff answered. The defendant warned the

plaintiff in a direct message, "Don't play games with me[.] I

will absolutely dismantle anything and everything does that make

sense? Are you registering everything I'm saying." After

receiving the multiple telephone calls, but without answering

them, the plaintiff called 911 and a police officer was sent to

the plaintiff's house to check on her parents.

In his testimony, the defendant did not contest any of the

historical facts testified to by the plaintiff, except he said

that the plaintiff had struck him in the past during their

relationship. As to the events of November 1, the defendant

claimed that he had not intended to threaten the plaintiff and

that he "was drunk and not thinking straight" on the day he

contacted her. The defendant thought he had probably been

drinking since the morning. He also testified that he had no

intent to hurt the plaintiff in the future.

After hearing all the evidence and viewing pictures of the

defendant's messages and the plaintiff's responses, the judge

engaged in a discussion with counsel. Although the judge found

the defendant's statement that he would "dismantle everything"

"a little cryptic," he agreed that "it certainly could be taken

as a threat. I have no doubt about that." The judge also found

that the plaintiff testified "credibly to this history of

abuse." The judge added that the plaintiff's fear was "quite
5

palpable. I can see it on her face and in her testimony. She

testifie[d] credibly." In spite of these findings, the judge

expressed concern about the effect a 209A order would have on

the defendant, commenting as follows:

"Sometimes we have to look at it as has the lesson been
learned by the fact that he's for the first time in his
life in a courtroom, you know, with the prospect of having
a restraining order placed upon him which will go on to the
statewide registry for the rest of his life and it will
show up on every -- every CORI check that is done on him."

He later explained, "If [the defendant] had some criminal

history of a long record of violence or of any type of

misbehavior, I think I'd . . . be far more concerned about it.

But I don't really see it."

The plaintiff's counsel argued that the plaintiff's fear

was reasonable given the defendant's history of violence, his

ongoing alcohol abuse, the repeated telephone calls he made to

the plaintiff, the fact that he ignored the plaintiff's multiple

requests to leave her alone, the threats he made against her,

and the fact that he said he was on the way to her house. The

defendant's counsel did not contest any of the facts but

asserted that the defendant should be given one final chance,

and that if the defendant contacted the plaintiff one more time,

she could "come back here and apply again and get it right

away." He stated, "[T]his kid's got a future. He's a graduate

of college."
6

The judge denied the plaintiff's request for a 209A order

and vacated the original ex parte 209A order.

Discussion. We review a judge's decision on a 209A order

"for an abuse of discretion or other error of law." Vanna V. v.

Tanner T., 102 Mass. App. Ct. 549, 552 (2023). "[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

criteria employed by the trial judge and the manner in which

those criteria were applied to the facts." (Citation omitted.)

Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).

To obtain a 209A order, a plaintiff must prove by a

preponderance of the evidence that an order is "necessary to

protect her from the likelihood of abuse" (quotation and

citation omitted). Iamele v. Asselin, 444 Mass. 734, 739

(2005). The plaintiff can meet this burden by establishing

(1) that she is in fear of "imminent serious physical harm" and

(2) that her fear is reasonable.4 Id. at 739-740. Accord G. L.

c. 209A, § 1. When determining whether the plaintiff has

satisfied the evidentiary burden, the judge must consider "the

4 The plaintiff also testified that she had suffered
physical abuse from the defendant, which could provide
alternative grounds for an abuse prevention order under G. L.
c. 209A, § 1. Because the judge and the parties at the hearing
focused on the defendant's threats toward the plaintiff, we do
so here as well. Vanna V., 102 Mass. App. Ct. at 552 n.2.
7

totality of the conditions that exist at the time that the

plaintiff seeks the [order]." Iamele, supra at 741.

Here, the plaintiff testified that, based on the parties'

history, the messages the defendant sent her on November 1 put

her in fear. After hearing the evidence and observing the

plaintiff's demeanor in court, the judge characterized her fear

as "palpable" and found that she "testifie[d] credibly." He

also found that one of the defendant's messages "certainly could

be taken as a threat. I have no doubt about that." We

understand the judge's statement that he had "no doubt" that the

defendant's message "could be taken as a threat" to mean that he

agreed that the plaintiff's fearful reaction was a reasonable

one. Additionally, since the defendant discussed going to the

plaintiff's house in "15," there can be no doubt that the fear

was of imminent serious harm.

The plaintiff provided sufficient evidence, which the

judged credited, to sustain her burden of proving that a 209A

order was necessary to protect her from abuse. The judge,

however, improperly considered additional extraneous factors in

deciding whether to issue the 209A order. See Moreno v.

Naranjo, 465 Mass. 1001, 1003 (2013) (concluding that judge

abused his discretion when he relied on effect 209A order would

have on defendant). The judge referred to the lifelong adverse

consequences to the defendant of being subject to a 209A order,
8

including the fact that the order would appear in any future

background checks of the defendant. The effect a 209A order has

on a defendant is not relevant to a judge's assessment of

whether to issue a 209A order. The judge also suggested that

the serious process of going into court and testifying before a

judge should cause the defendant to learn his lesson and leave

the plaintiff alone. These considerations were not relevant to

whether the plaintiff established that she had a "reasonable

fear of imminent serious physical harm," Iamele, 444 Mass. at

736, and should not have been considered by the judge in

deciding whether to issue the 209A order.

Because we conclude that the judge abused his discretion in

declining to issue the 209A order and we seek to put the

plaintiff in the position she would have been in had the judge

properly applied the law and issued the 209A order, we issued an

order on January 12, 2024, reversing the District Court judge's

order denying the plaintiff's request for a 209A order against

the defendant and remanding for further proceedings. On remand,

a two-party hearing on the issuance of a 209A order shall be

scheduled within thirty days of the issuance of the rescript.

The issuance of a new 209A order shall be dependent upon the

plaintiff's demonstrating a continued need for the order. See

Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 782 (2005). In

addition, we directed that a judge of the District Court
9

promptly issue an ex parte 209A order against the defendant on

behalf of the plaintiff until the two-party hearing is held.