L.R. v. K.L.

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-16

L.R.

vs.

K.L.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, K.L., appeals from an abuse prevention order

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

argues that the District Court judge abused her discretion in

granting the order as there was insufficient evidence to

establish that the plaintiff, L.R., had a reasonable fear of

imminent serious physical harm. He also argues that the judge

improperly relied on a seven year old video recording introduced

by the plaintiff and should not have considered the parties'

relative size and strength in reaching her conclusion. We

affirm.

Background. "We recite the facts based on the record

before us." See E.C.O. v. Compton, 464 Mass. 558, 559 (2013).
The plaintiff and the defendant were in a dating relationship,

which continued for several years after the birth of their

child, who was five years old when the plaintiff filed a

complaint for protection and obtained an ex parte order

effective on November 7, 2024. See G. L. c. 209A, § 4. In

support of her complaint, the plaintiff provided an affidavit

averring that the defendant "stalks" her by placing global

position system (GPS) trackers in her car, watching her home

from a neighbor's yard, and hacking her cell phone to see her

location. The plaintiff also averred that on one occasion while

the defendant was caring for their child at her home, he went

through her drawers and paperwork and that he had stalked her

boyfriend and "threatened to ruin his life."

A hearing to determine whether the ex parte order should be

extended was held before a second judge on November 21, 2024.

Both parties were present and self-represented. The plaintiff

testified that she sought an abuse prevention order because the

defendant was stalking her. She explained that the defendant,

who lived less than one mile away on the same street, repeatedly

drove by her house at night, tracked her location, and followed

her with his car when she was out in public. The plaintiff also

testified that the defendant had interfered with her personal

life. On November 4, 2024, the defendant contacted the

plaintiff's boyfriend's wife and told her that the plaintiff was

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involved with her husband. According to the plaintiff, this

conduct reflected a pattern of controlling behavior that the

defendant had exhibited for several years. To substantiate her

claim, the plaintiff introduced a video recording that depicted

an incident which had occurred approximately seven years

earlier.1 The judge viewed the video recording and made the

following comments about the contents of the recording. The two

appear to be in a small space. The defendant looks extremely

angry, the plaintiff looks fearful and is crying. The plaintiff

also testified that the same night the video recording was

taken, the defendant had choked her, "toss[ed] her around," and

pointed a loaded firearm at her. In response to a question

posed by the judge, the plaintiff stated that she feared for her

safety and was concerned the defendant could "snap" again.

The defendant testified that the night the video recording

was taken, he was drunk, suicidal, and did not remember pointing

a firearm at the plaintiff. He also testified that he no longer

owned a gun and had obtained therapy, after which his mental

health had improved. The defendant then testified that he and

the plaintiff had maintained a good coparenting relationship

despite the end of their romantic one. He testified that he had

continued to attend holiday gatherings with the plaintiff and

1 The record before us does not contain the video recording,
but we note that the defendant does not dispute its contents.

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her family over the past few years and that, just recently, he

and the plaintiff had exchanged text messages and started to

make plans to celebrate the holidays together. The defendant

denied hacking the plaintiff's cell phone, tracking her

location, and watching her from a neighbor's yard, but

acknowledged that both he and the plaintiff had placed GPS

tracking devices on each other's cars. The defendant also

admitted that he had rummaged through the plaintiff's drawers

while he was at her home caring for their child and that he had

contacted the plaintiff's boyfriend's wife.

At the conclusion of the hearing, the judge specifically

credited the plaintiff's testimony about the defendant's history

of physical abuse and her current fear of him before ruling that

the abuse prevention order would remain in effect for one year,

until November 20, 2025. The judge ordered the defendant to

stay away from the plaintiff's residence and stay at least 100

yards away from the plaintiff but allowed the defendant to be

within three yards of the plaintiff when picking up or dropping

off their child and to maintain contact via email so long as the

defendant was not abusive.

Discussion. The defendant first argues that the evidence

did not support the issuance of an abuse prevention order. We

review the issuance of such an order for an abuse of discretion

or other error of law. E.C.O., 464 Mass. at 562. "[A] judge's

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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" (quotations and citations omitted).

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

To obtain such an order, 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 Yahna Y. v. Sylvester S., 97 Mass. App. Ct.

184, 186 (2020). In evaluating whether the plaintiff has met

this burden, the judge "must consider the totality of the

circumstances of the parties' relationship." Iamele v. Asselin,

444 Mass. 734, 740 (2005). In addition, where, as here, the

judge has not made specific factual findings on the record, we

consider whether the judge could find, by a preponderance of the

evidence, together with all permissible inferences, that the

defendant placed the plaintiff in fear of imminent serious

physical harm. See Frizado v. Frizado, 420 Mass. 592, 597

(1995); G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).

We discern no abuse of discretion. The plaintiff's

affidavit and testimony at the hearing established significant

prior physical and verbal abuse perpetrated by the defendant.

Moreover, the defendant did not deny that some of the abusive

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conduct to which the plaintiff testified had occurred. Given

these circumstances, it was within the judge's discretion to

credit the plaintiff's testimony and to conclude that the

defendant's conduct caused the plaintiff to fear imminent

serious physical harm. See Ginsberg v. Blacker, 67 Mass. App.

Ct. 139, 140 n.3 (2006) ("We accord the credibility

determinations of the judge who 'heard the testimony of the

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

deference" [citation omitted]).

Next, the defendant asserts that the judge erred by relying

on the video recording because it concerned an incident that

occurred seven years earlier. We disagree. "[I]n evaluating

whether an initial 209A order or its extension should issue, the

judge must examine the words and conduct in the context of the

entire history of the parties' hostile relationship" (quotation

and citation omitted). G.B. v. C.A., 94 Mass. App. Ct. 389,

393-394 (2018). Here, the judge acknowledged that the video

recording was taken years ago but concluded nevertheless that it

provided a basis for the plaintiff's current fear of the

defendant. Accordingly, we discern no error.

The defendant's final argument, that the judge improperly

considered his biological sex and physical stature, is

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unavailing for the same reason.2 Whether the plaintiff's fear is

reasonable depends on the totality of the circumstances, of

which, relative size and strength are a part. Moreover, the

judge expressly acknowledged that "smaller women can inflict

great physical damage on large men," demonstrating a "thoughtful

and reasoned consideration" of the evidence. Callahan v.

Callahan, 85 Mass. App. Ct. 369, 375 (2014). In any event, even

if we were to assume that the defendant is correct, there was

sufficient additional evidence to support the order.3

Order entered November 21,
2024, affirmed.

By the Court (Vuono,
Desmond & Toone, JJ.4),

Clerk

Entered: November 24, 2025.

2 The judge said, "I would note here, parenthetically, the
relative size difference, I -- I would say, certainly, sir, you
are tall, broad, seem to be a very large strong man. I think
you'd probably agree with that characterization. And -- and
[the plaintiff] is much smaller."

3 In his brief, the defendant asks us to consider evidence
that was not before the judge. He correctly acknowledges that
we may not do so, and we do not. See Mass. R. A. P. 8, as
appearing in 481 Mass. 1611 (2019).

4 The panelists are listed in order of seniority.

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