R.P. v. L.W.

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

24-P-1272

R.P.

vs.

L.W.

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). We affirm.

Background. The parties dated from the end of 2022 through

the beginning of 2023 and share one child in common. On August

2, 2024, the plaintiff filed a complaint for a 209A order

against the defendant. A Boston Municipal Court judge issued

the 209A order ex parte. On August 9, 2024, a hearing after

notice was held on the 209A order at which only the plaintiff

appeared, and the order was extended for one year. On August

12, 2024, the defendant filed a motion to terminate the 209A

order, stating she was in the hospital and therefore unavailable

for the August 9 hearing. A hearing on the defendant's motion

was scheduled for August 16, 2024. Before the hearing date, the
defendant filed a request for a 209A order against the

plaintiff.

On August 16, 2024, a Boston Municipal Court judge

conducted a two-party hearing that addressed the plaintiff's

request for an extension of his 209A order, the defendant's

motion to terminate that order, and the defendant's request for

a 209A order against the plaintiff. Both parties testified and

each of them submitted a "binder" of documentary evidence. The

judge gave the parties time to review the binders during the

hearing; the defendant did not object to the admission in

evidence of the plaintiff's binder.1 At the conclusion of the

hearing, the judge found that both parties were "suffering from

abuse" and issued mutual restraining orders. By extending the

plaintiff's 209A order, the judge implicitly denied the

defendant's motion to terminate that order.

Discussion. 1. Sufficiency of evidence.2 General Laws

c. 209A permits a person suffering from abuse by a family or

household member to obtain an abuse prevention order. See

1 The plaintiff initially objected to the defendant's
submission but then withdrew his objection. Both binders were
admitted as evidence.

2 The defendant claims "the restraining order was not
justified by a compelling state interest to protect against a
serious threat of harm," which we take as a challenge to the
factual and legal sufficiency of the 209A order.

2
E.C.O. v. Compton, 464 Mass. 558, 562 (2013). As relevant here,

"abuse" is defined as "placing another in fear of imminent

serious physical harm." G. L. c. 209A, § 1. To meet that

standard, the plaintiff must prove both current fear of imminent

serious physical harm and that the fear was reasonable. See

Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186 (2020).

We review the extension of a restraining order for an abuse

of discretion or other error of law. E.C.O., 464 Mass. at 561-

562. "[A] judge's discretionary decision constitutes an abuse

of discretion where [the reviewing court] conclude[s] 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 reasonable alternatives" (quotation and citation

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

"We accord the credibility determinations of the judge who

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

demeanor,' . . . the utmost deference." Ginsberg v. Blacker, 67

Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47

Mass. App. Ct. 929, 929 (1999). In evaluating whether the

plaintiff has met his burden of proving that he has a reasonable

fear of imminent serious physical harm, the judge "must consider

the totality of the circumstances of the parties' relationship."

Iamele v. Asselin, 444 Mass. 734, 740 (2005).

3
According to the plaintiff's affidavit in support of the ex

parte order, on July 20, 2024, the defendant appeared at the

plaintiff's home uninvited during a celebration of his child's

first birthday.3 He alleged that the defendant "trespassed" by

coming into his gated and locked backyard, where she "tried to

assault" him, his children, the mother of those children, and

other family members. At the extension hearing, the plaintiff

testified that in addition to the behavior described in his

affidavit, on July 20, 2024, the defendant threatened to "get

people to come here and shoot this whole shit up." He also told

the judge that on different occasions in early 2023, the

defendant threatened him with a knife and punched him in the

face. The plaintiff indicated that after the relationship

ended, the defendant called him hundreds of times per day and on

one occasion slashed his car tires. He testified that in 2022,

the defendant was charged with assault and battery on him and

breaking and entering into his home. The plaintiff's evidence

binder included a USB flash drive with a recording of a Facebook

post by the defendant, screen shots of text message

conversations between the parties, photographs, and police

reports from prior incidents involving the parties. The

3 The child was not the defendant's, but rather was one of
the plaintiff's three children from a prior relationship.

4
plaintiff further stated that this was his fifth restraining

order against the defendant, and that he feared for his safety

based on the defendant's behavior.

We infer that the judge credited this evidence and conclude

that it was adequate to prove by a preponderance of the evidence

that the defendant had placed the plaintiff in reasonable fear

of imminent serious physical harm. See Iamele, 444 Mass. at

735, 741 (evidence of past physical violence and present fear,

if credited, adequate to justify extension of 209A order). See

also Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665-666

(2020) (erratic and unstable behavior can create a reasonable

apprehension that force might be used); Ginsberg, 67 Mass. App.

Ct. at 141 (reasonable fear of imminent serious physical harm

where defendant was "physically aggressive" with plaintiff

despite not touching her, by screaming and waving his hands in

her face).

We disagree with the defendant's contention that the judge

erred by failing to consider that (1) the plaintiff's testimony

lacked corroboration; (2) the plaintiff fabricated parts of his

testimony and his testimony was inconsistent with his affidavit;

and (3) the plaintiff sought the 209A order to retaliate for a

pending criminal case against him alleging the defendant as a

victim. The judge's findings noted the history between the

parties, including the Facebook posting and text exchanges,

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prior restraining orders against the defendant, and the pending

criminal case against the plaintiff. The judge was not required

to specify the weight she accorded to each component of the

evidence presented during the hearing. See G.B. v. C.A., 94

Mass. App. Ct. 389, 396 (2018) (where reasonable basis for

judge's rulings and order is discernible, no specific findings

required). On the record of this case, there was no error or

abuse of discretion in the judge's implicit determination that

the plaintiff was suffering from "abuse" for the purposes of

G. L. c. 209A.4

2. Admissibility of evidence. Where the defendant raised

no objection to the plaintiff's testimony or evidence binder at

the hearing, her argument that the judge relied on inadmissible

evidence is waived. See Wilhelmina W. v. Uri U., 102 Mass. App.

Ct. 634, 641 (2023) (arguments not raised to judge are waived).

Even if we were to consider this argument, we are not persuaded

that the judge improperly relied on inadmissible evidence to

grant the 209A order. In the context of a 209A hearing, the

rules of evidence do not need to be strictly followed "provided

4 As noted above, the judge found that "both [parties were]
suffering from abuse, as we define it under 209A against each
other." The judge stated that she was going to make written
findings required for mutual 209A orders, but the defendant did
not provide those findings. See Selmark Assocs., Inc. v.
Ehrlich, 467 Mass. 525, 540 (2014); Mass. R. A. P. 18 (a) (1)
(D), as appearing in 491 Mass. 1603 (2023).

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that there is fairness in what evidence is admitted and relied

on [by the judge]." A.P. v. M.T., 92 Mass. App. Ct. 156, 161

(2017), quoting Frizado v. Frizado, 420 Mass. 592, 597-598

(1995). Here, the judge heard testimony from both parties that

included first-hand observations and hearsay. The judge also

admitted in evidence binders containing similar types of

documents from both parties. Moreover, before accepting the

plaintiff's binder, the judge afforded the defendant a full

opportunity to review and object to it. We thus discern no lack

of fairness in the judge's admission of evidence.

3. Defendant's right to be heard. We disagree with the

defendant's assertion that she was deprived of a meaningful

opportunity to counter the plaintiff's claims against her. A

defendant in a 209A extension hearing "has a right to notice and

an opportunity to be heard." M.M. v. Doucette, 92 Mass. App.

Ct. 32, 34 (2017). Guidelines for Judicial Practice: Abuse

Prevention Proceedings § 1:02 (Oct. 2021). "A meaningful

opportunity to be heard includes an opportunity to address the

material and determinative allegations at the core of a party’s

claim or defense and to present evidence on the contested

facts." Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 788

(2022). The defendant did not seek to cross-examine the

plaintiff. When the judge indicated she was ready to make a

decision, the defendant raised concern that she had more

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information to present. The judge then invited the defendant to

provide any additional evidence the defendant wanted her to

consider, and the defendant offered her binder and additional

testimony. We are satisfied on this record that the judge

afforded the defendant a full and fair opportunity to be heard.

4. Defendant's First Amendment rights. The defendant

argues that the judge erred by considering the plaintiff's

evidence of the "live video" the defendant posted on Facebook as

a basis for the 209A order because it was "free speech"

protected by the First Amendment to the United States

Constitution. Because the defendant did not provide a copy of

the Facebook post, we have no way of assessing the validity of

her assertions regarding its content. See Selmark Assocs., Inc.

v. Ehrlich, 467 Mass. 525, 540 (2014); Mass. R. A. P. 18 (a) (1)

(D), as appearing in 491 Mass. 1603 (2023).

Order extending G. L. c. 209A
order, entered August 16,
2024, affirmed.

Order denying motion to
terminate abuse prevention
order affirmed.

By the Court (Henry, Hand &
Brennan, JJ.5),

Clerk
Entered: November 4, 2025.

5 The panelists are listed in order of seniority.

8