B.C. v. M.A.

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-1391

B.C.

vs.

M.A.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the extension of an abuse

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

order). On appeal, the defendant claims that there was

insufficient evidence of "abuse," as defined by G. L. c. 209A,

§ 1 (b) ("placing another in fear of imminent serious physical

harm"), to support the extension order. We affirm.

Discussion. We review the extension of a 209A order "for

an abuse of discretion or other error of law." Constance C. v.

Raymond R., 101 Mass. App. Ct. 390, 394 (2022), quoting E.C.O.

v. Compton, 464 Mass. 558, 562 (2013). The standard for

extending a 209A order is the same as for issuing the initial

order: "the plaintiff will need to show a reasonable fear of
imminent serious physical harm at the time that relief . . . is

sought." MacDonald v. Caruso, 467 Mass. 382, 386 (2014),

quoting Iamele v. Asselin, 444 Mass. 734, 735 (2005). To meet

that standard, the plaintiff must satisfy both a subjective and

an objective standard: that she was currently in fear of

imminent serious physical harm, and that her fear was

reasonable. See Iamele, supra at 737; Yahna Y. v. Sylvester S.,

97 Mass. App. Ct. 184, 186 (2020). The plaintiff has the burden

of proof by a preponderance of the evidence. Vanna V. v. Tanner

T., 102 Mass. App. Ct. 549, 552 (2023). In considering whether

the plaintiff met her burden, we accord "the utmost deference"

to the credibility determinations of the judge who "heard the

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

(citation omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct.

660, 664 (2020).

The defendant claims that the plaintiff failed to prove

(1) that her fear was of serious physical harm that was

"imminent," G. L. c. 209A, § 1 (b); and (2) that her fear was

objectively "reasonable," Iamele, 444 Mass. at 737. We consider

each argument in turn.

First, as to whether the plaintiff's fear was of serious

physical harm that was "imminent," the defendant asserts that,

even if he abused the plaintiff in the past, the abuse was not

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recent enough to give rise to a fear of imminent harm.

Specifically, the defendant cites Dollan v. Dollan, 55 Mass.

App. Ct. 905, 906 (2002), for the proposition that G. L.

c. 209A, § 1 (b) "focuses on preventing imminent serious

physical harm, not merely responding to past abuse," and that

past abuse, without "evidence that the abuse might resume," is

insufficient to support the extension of a 209A order. However,

"subsequent case law developments circumscribe the continuing

vitality of [Dollan]." Vanna V., 102 Mass. App. Ct. at 555.

Dollan "cannot be construed in a 'rigid manner' that disregards

or minimizes the significance of past abuse." Vanna V., supra,

quoting Vittone v. Clairmont, 64 Mass. App. Ct. 479, 484 (2005).

"To the contrary, prior abuse may 'serve as the necessary

backdrop for reaching a proper understanding of more recent

words and behavior as well as for assessing the reasonableness

of an applicant's fear of imminent serious physical harm.'"

Vanna V., supra, quoting Vittone, supra at 487. This court has

recognized that "[t]he infliction of some wounds may be so

traumatic that the passage of time alone does not mitigate the

victim's fear of the perpetrator." Vittone, supra at 489. "[A]

victim who still reasonably suffers fear based on past physical

abuse may seek to extend a 209A order or to make it permanent."

McIsaac v. Porter, 90 Mass. App. Ct. 730, 734 (2016).

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Here, the plaintiff's supplemental affidavit alleges

several instances of physical abuse inflicted by the defendant;

the continued effects of such abuse,1 including the plaintiff's

onset of post-traumatic stress disorder; the defendant's monthly

visits to Massachusetts for supervised child visitation; and the

defendant's learning of the plaintiff's home address, which had

previously been impounded by the Probate and Family Court.

Moreover, the judge "credit[ed] the plaintiff's testimony . . .

that [she is] truly in fear of serious bodily injury from the

defendant," and found that "the history of abuse" between the

parties supported the conclusion that such fear was reasonable.

This evidence permitted the judge to find that "the plaintiff

was still suffering from that [past] abuse, and that [she]

reasonably remain[ed] in fear of [the defendant]" (quotations

omitted). Yahna Y., 97 Mass. App. Ct. at 187, quoting McIsaac,

90 Mass. App. Ct. at 733-734. Accordingly, the judge did not

commit an error of law or abuse her discretion in finding by a

preponderance of the evidence that the plaintiff reasonably

feared "imminent" physical harm.

1 Representative allegations include, "[h]e hit be [sic]
with a wooden kitchen spoon causing severe bruising to my hips
and legs"; "[h]e threw me on the bed and hit me with a closed
fist three times in the head"; "[h]e beat me causing bruises on
my face and body"; and "[h]e punched me forcefully with a closed
fist on my . . . left parietal lobe, causing long term medical
issues."

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Next, the defendant contends that the extension order

should not have issued because the plaintiff showed only

"generalized apprehension," rather than an objectively

reasonable fear of imminent serious physical harm. In support

of his position, the defendant cites Wooldridge v. Hickey, 45

Mass. App. Ct. 637, 639 (1998), which sets forth the principle

that "[g]eneralized apprehension, nervousness, feeling

aggravated or hassled, . . . when there is no threat of imminent

serious physical harm, does not rise to the level of fear of

imminent serious physical harm." In Wooldridge, we vacated a

209A order applying to the parties' children because "[t]he most

that [the plaintiff] said about the children, other than that

they were subjected to verbal harassment by [the defendant], is

that [the defendant] 'has hit my son and grabs him when angry.'"

Id. at 642. "Without further explanation, that statement was

not evidence of abuse within the meaning of the statute." Id.

Here, unlike in Wooldridge, the plaintiff has alleged with

specificity several instances of past physical abuse. See note

1, supra. This, together with the contentious, ongoing

litigation between the parties, the alleged written

communications made by the defendant to the plaintiff, despite a

prohibitory court order, the defendant's monthly visits to

Massachusetts for supervised child visitation, and the

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defendant's learning of the plaintiff's impounded home address,

provided a sufficient basis for the judge to conclude that the

plaintiff's fear was objectively reasonable. We discern no

error of law or abuse of discretion in the judge's extension of

the 209A order.

Order entered September 14,
2023, affirmed.

By the Court (Meade, Walsh &
Smyth, JJ.2),

Clerk

Entered: November 6, 2024.

2 The panelists are listed in order of seniority.

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