H.S. v. N.S.

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-1229

H.S.

vs.

N.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the extension of an abuse

prevention order issued in the District Court pursuant to G. L.

c. 209A, § 3 (209A order). He argues that the judge erred in

extending the 209A order because the plaintiff failed to present

evidence of previous abuse or reasonable fear of imminent

serious bodily harm. He further contends that his due process

rights were violated. We affirm.

Background. We draw the following facts from the record,

reserving some for later discussion. On August 28, 2023, the

plaintiff obtained an ex parte abuse prevention order against

the defendant, her husband. On September 12, 2023, following a
hearing at which both parties appeared, the 209A order was

extended for one year.

At the next scheduled hearing on September 13, 2024, both

parties appeared with counsel. The plaintiff sought a

"permanent" extension of the 209A order. The judge asked the

plaintiff's counsel, "did you want [the plaintiff] to testify or

do you want to make a proffer on her behalf?" The plaintiff's

counsel stated that she was going to "initially proceed with a

proffer. . . [and] reserve to take [the plaintiff's] testimony."

The plaintiff's counsel then recounted the events leading to the

original 209A order and those justifying its extension. She

explained that the case started with "a police raid in the home

on a joint task force regarding distribution of child

pornography." She asserted that "what was found in [the

defendant's] possession" was "horrific . . . . It was graphic

images of very young children being raped." The proffer also

included a representation that there was an event "a couple of

weeks" before the hearing to extend the 209A order where the

defendant "slap[ped] [his daughter's] butt right in front of the

supervisor" during a visit with his daughter.

Defense counsel objected to the extension, and he denied

that the "slapping [of] the daughter's butt" occurred. Defense

counsel also argued that there were no claims of "serious

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physical harm" by the defendant and that there are no

indications of the defendant threatening or attempting to harm

the plaintiff.

After a brief discussion between counsel and the judge, the

judge determined "[b]ased on the . . . proffer that I heard from

the plaintiff, I'm making a finding that there is a continuing

need for the order based on the recent events." The judge did

not issue a permanent order and instead extended the order for

five years.

Discussion. 1. Abuse. The defendant contends that there

was no evidence of abuse, and that there is no ongoing

reasonable fear of imminent serious harm as required by G. L.

c. 209A, § 1 (b). Because the defendant cannot challenge the

initial determination of abuse, we review only to determine if

the judge abused her discretion by granting the extension. For

the reasons discussed below, we discern no abuse of discretion.

"We review . . . for an abuse of discretion or other error

of law" (citation omitted). Noelle N. v. Frasier F., 97 Mass.

App. Ct. 660, 664 (2020). We first note that to the extent the

defendant challenges the original prevention abuse order his

claims fail. Judicial discretion is not so broad as to allow a

judge to vacate an original order, its underlying basis cannot

be reviewed nor its validity second guessed at the extension

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hearing or without proper appeal. See Iamele v. Asselin, 444

Mass. 734, 742 (2005). Moreover, our review is limited because

we do not have the transcripts from the original hearings.

Although the validity of the original 209A order cannot be

revisited, we must still determine whether the judge abused her

discretion in extending it. Whether seeking the issuance of an

initial protective order or a later extension of that order,

"[t]he burden is on the complainant to establish facts

justifying [its] issuance and continuance." Iamele, 444 Mass.

at 736, quoting Frizado v. Frizado, 420 Mass. 592, 596 (1995).

"The plaintiff must meet that burden by a preponderance of the

evidence." Iamele, supra. "Abuse" is defined as, inter alia,

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

G. L. c. 209A, § 1. "When a person seeks to prove abuse by fear

of imminent serious physical harm, our cases have required in

addition that the fear be reasonable" (quotation omitted).

Iamele, supra at 737. Furthermore, where the initial order was

issued on the basis that the plaintiff had a reasonable fear of

imminent serious physical harm, the inquiry is whether the

plaintiff continues to have a reasonable fear of imminent

serious physical harm. See Callahan v. Callahan, 85 Mass. App.

Ct. 369, 374 (2014); Guidelines for Judicial Practice: Abuse

Prevention Proceedings § 6:08 (Oct. 2021).

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"In determining whether an apprehension of anticipated

physical force is reasonable, a court will look to the actions

and words of the defendant in light of the attendant

circumstances" (citation omitted). Ginsberg v. Blacker, 67

Mass. App. Ct. 139, 143 (2006). However, "for the plaintiff's

fear of imminent serious physical harm to be reasonable, it is

not necessary that there be a history -- or even a specific

incident of physical violence." Noelle N., 97 Mass. App. Ct. at

665. "[A] judge must consider the totality of the circumstances

of the parties' relationship . . . [including] the defendant's

violations of protective orders, ongoing child custody or other

litigation that engenders or is likely to engender hostility,

. . . and significant changes in the circumstances of the

parties." Iamele, 444 Mass. at 740. When extending the 209A

order, the judge implicitly found that the plaintiff did have

reasonable fear of imminent serious physical harm. See G.B. v.

C.A., 94 Mass App. Ct. 389, 396 (2018) ("where we are able to

discern a reasonable basis for the order in the judge's rulings

and order, no specific findings are required").

On the present record, we cannot say that the judge abused

her discretion. See Iamele, 444 Mass. at 741. The proffer at

the hearing established the defendant's disregard of his

behavior when he "slap[ped] [his daughter's] butt right in front

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of the supervisor." The plaintiff's attorney's proffer also

noted that the defendant's sister supervised a visit where the

defendant became aggressive and made her uncomfortable, and that

the sister refused to continue supervising visits. Furthermore,

the plaintiff's affidavit averred that the defendant has mental

health disorders that make her "afraid that [the defendant] may

kill [the plaintiff] and then commit suicide." The judge could

further consider the couple's continuing contact through a

divorce proceeding in the probate court. See id. at 740.

Finally, the plaintiff's attorney proffered that, at a prior

hearing, there was evidence presented that "once the initial

order entered, [the defendant] went into the house" in violation

of the 209A order. See Smith v. Jones, 75 Mass. App. Ct. 540,

544 (2009) ("a judge has wide discretion . . . and can properly

take into account the entire history of the parties'

relationship").

The defendant counters that there is no history of physical

violence, and thus there could be no finding of abuse or

reasonable fear of imminent serious physical harm. Our case

law, however, does not require proof of physical violence. See

Noelle N., 97 Mass. App. Ct. at 665. Cf. Larkin v. Ayer Div. of

the Dist. Court Dep't, 425 Mass. 1020, 1020 (1997) (serving

lawsuits insufficient basis for 209A order); Wooldridge v.

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Hickey, 45 Mass. App. Ct. 637, 639 (1998) (belief that 209A

order "would level the field in [a] forthcoming custody and

support discussion . . . [is] not an appropriate criterion for

issuance of an abuse prevention order"). Thus, given that the

facts presented show reasonable fear of imminent serious

physical harm despite the lack of physical violence, and given

the original abuse prevention order, we see no abuse of

discretion in the judge's extension of the order. See Iamele,

444 Mass. at 741.

2. Due process. The defendant also contends that his due

process rights were violated because the hearing relied solely

on attorney proffers rather than direct testimony, and because

plaintiff's counsel improperly invoked her prosecutorial

experience to bolster her arguments. The defendant, however,

did not raise these arguments at the hearing, and thus, they are

waived. Indeed, the defendant acquiesced to the proceeding by

way of his own proffer and neither objected to the procedure

used at the hearing, nor sought to present his own evidence or

to examine the plaintiff, who was sworn in and available to

testify. Smith v. Joyce, 421 Mass. 520, 521-522 (1995)

(rejecting argument that defendant's rights were violated by

order extended in his absence where counsel was present and

failed to object to hearing going forward). Cf. C.O. v. M.M.,

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442 Mass. 648, 657-658 (2004) (abuse prevention order vacated

where defendant sought to present evidence and to cross-examine

but was denied opportunity). Similarly, the defendant's counsel

did not object to the plaintiff's counsel's brief statements

discussing her prosecutorial experience. See Diaz v. Gomez, 82

Mass. App. Ct. 55, 63 (2012) ("through failure to raise [due

process] claim in the trial court, the defendant has waived any

due process objection to the procedure followed by the judge").1

Thus, on the record before us, we discern no abuse of

discretion in the extension of the abuse prevention order.

Order entered September 13,
2024, extending abuse
prevention order for five
years, affirmed.

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

Clerk

Entered: November 26, 2025.

1 While the usual principles of waiver do not strictly
control in 209A proceedings, a party still must make some effort
to preserve an issue for review. See Idris I. v. Hazel H., 100
Mass. App. Ct. 784, 790-791 (2022). Here, defense counsel made
no effort to object or otherwise raise either issue before the
judge, and thus waiver applies.

2 The panelists are listed in order of seniority.

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