S.J. v. T.S.

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22-P-944 Appeals Court

S.J. vs. T.S.

No. 22-P-944.

Middlesex. May 15, 2023. – August 28, 2023.

Present: Sacks, Shin, & D'Angelo, JJ.

Abuse Prevention. Protective Order. Practice, Civil, Motion to
dismiss. Words, "Household members."

Complaint for protection from abuse filed in the Newton
Division of the District Court Department on March 11, 2022.

A hearing to extend the abuse protection order was had
before Jennifer D. Queally, J.

Kevin M. Dwyer, Jr., for the defendant.

SHIN, J. The defendant appeals from an extension of an

abuse prevention order granted to the plaintiff under G. L.

c. 209A.1 The sole issue presented is whether the parties -– who

1 The defendant also appealed from the earlier entered ex
parte order, but that order was superseded by the order after
notice and so we do not address it separately. See V.M. v.
R.B., 94 Mass. App. Ct. 522, 524-525 (2018). The plaintiff did
not participate in the appeal, as is his right.
2

were college roommates when the events underlying the order

occurred -- were "household members" within the meaning of G. L.

c. 209A. We conclude they were not and thus vacate the

extension order.

Background. The parties were first-year college roommates

from approximately January to March of 2022. They had no prior

relationship and were assigned to be roommates by the

university.

On March 11, 2022, the plaintiff applied for an abuse

prevention order, attaching an affidavit in which he asserted

the following facts. The previous day, the plaintiff was in the

parties' shared dormitory room when the defendant approached and

hit him on the side of the head. The plaintiff left the room

and returned after some time; the defendant then picked him up

by his shirt, pushed him against the wall, put him on the

ground, and dragged him to the center of the room. The

plaintiff asked what he had done and told the defendant to stop,

but the defendant did not respond and began to hit the plaintiff

on the sides of the chest. The defendant stopped momentarily

when the plaintiff said he would leave the room. The defendant

"resumed his assault," however, when the plaintiff asked for

permission to retrieve his laptop before leaving.

After an ex parte hearing, a District Court judge issued a

temporary abuse prevention order and scheduled the matter for a
3

two-party hearing on March 25, 2022. On the day of the hearing,

the defendant moved to dismiss, arguing that the parties did not

qualify as "household members" under G. L. c. 209A, § 1. A

second judge presided over the two-party hearing, which was

devoted, more or less exclusively, to the motion to dismiss.

While noting that the parties were "just college roommates who

were placed together by the university," the judge nonetheless

denied the motion to dismiss and extended the temporary order to

August 29, 2022.2

Discussion. General Laws c. 209A, § 3, provides that "[a]

person suffering from abuse from an adult or minor family or

household member may file a complaint" for an abuse prevention

order. The term "[f]amily or household members" is defined in

G. L. c. 209A, § 1, as:

"persons who: (a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage; (d) hav[e] a
child in common regardless of whether they have ever
married or lived together; or (e) are or have been in a
substantive dating or engagement relationship" (emphasis
added).

It is undisputed that the parties here have never been married,

have never been related by blood or marriage, have no child in

common, and have never dated or been engaged. Thus, the

2 The judge chose this date after the defendant's attorney
represented that the defendant had taken a leave of absence from
the university and would not be returning to campus until at
least the fall semester.
4

question is whether they were "residing together in the same

household" when the alleged abuse occurred.

Since G. L. c. 209A was enacted, the Legislature has

broadened the statute's coverage to "address violence stemming

from relationships which may not be considered traditional

'family or household' associations." C.O. v. M.M., 442 Mass.

648, 653 (2004). Courts have followed by "recogniz[ing] changes

in traditional family structures and households for the purposes

of G. L. c. 209A and have allowed individuals in various types

of familial relationships to seek protection from abuse from

family or household members." Silva v. Carmel, 468 Mass. 18, 22

(2014) (collecting cases). Still, the purpose of G. L. c. 209A

remains "to prevent violence in the family setting." Id. at 24.

With this statutory purpose in mind, the court held in

Silva, 468 Mass. at 23-24, that the phrase "residing together in

the same household" takes meaning from the other categories of

"[f]amily or household members" delineated in G. L. c. 209A, § 1

-- i.e., married or once married persons, relatives by blood or

marriage, persons who have children together, and persons who

have been in a substantive dating or engagement relationship.

Viewing the phrase in that context, the court concluded that the

parties -- who were intellectually disabled adults living in the

same State-licensed residential facility -- did not qualify as

"household members" under the statute. See Silva, supra. While
5

acknowledging that the facility had "home-like" features, such

as shared living spaces and house rules, id. at 21, the court

found that to be insufficient to trigger the statute's

protections where there was no evidence of a "'family-like'

connection" between the parties. Id. at 22.

At the two-party hearing in this case, the judge suggested

that Silva was distinguishable because there "the [S]tate put

[the parties] together," whereas here the parties were

voluntarily attending the university. But, while we agree that

the voluntariness of the living arrangement is a relevant

factor, we do not read Silva to say that it is the dispositive

factor. Nor do we think it should be. Rather, the wide variety

of relationships and living arrangements existing today calls

for a more flexible approach in determining whether two parties

qualify as persons "residing together in the same household"

under G. L. c. 209A. This determination should be made on a

case-by-case basis after consideration of all relevant factors.

Cf. C.O., 442 Mass. at 651 ("existence of a 'substantive dating

relationship' is to be determined on a case-by-case basis").

These factors may include (1) whether the living arrangement was

voluntary, (2) the nature of the physical living space,

including how much of it was shared, (3) the length of the

parties' relationship, and (4) the nature of their relationship

and interactions, including whether they engaged in communal
6

living activities. No factor is dispositive, and the ultimate

inquiry for the judge is whether the parties have a "'family-

like' connection that falls under the protection of G. L.

c. 209A." Silva, 468 Mass. at 22.

Turning to the facts of this case, we conclude that the

parties were not persons "residing together in the same

household" at the time of the alleged abuse. Although the

parties may have been attending the university voluntarily, they

were not living together voluntarily; they were assigned to the

same dormitory room by the university. In addition, they had

been roommates for only a short time (about two months), and

there is no evidence in the record about the physical layout of

the room, such as whether it was a single room or more like a

suite. Even presuming that much of it was common living space,

there is no evidence that the parties prepared and ate meals

together, engaged in other communal living activities, or had a

"socially interdependent relationship." Silva, 468 Mass. at 22.

In fact, the plaintiff presented no evidence of any relationship

he had with the defendant beyond sharing a dormitory room. As

the plaintiff thus failed to establish that he had a "'family-
7

like' connection" with the defendant, id., he was not eligible

to seek protection under G. L. c. 209A.3

Conclusion. The abuse prevention orders entered against

the defendant on March 11, 2022, and March 25, 2022, are

vacated. The case is remanded to the District Court for the

entry of an order directing the appropriate law enforcement

agency to destroy all records of the vacated orders in

accordance with G. L. c. 209A, § 7, third par.

So ordered.

3 This does not leave parties in the plaintiff's situation
without a remedy. Had the plaintiff sought protection under
G. L. c. 258E -- which was enacted "to close the gap left by
G. L. c. 209A," Silva, 468 Mass. at 24 -- he would not have had
to show that he and the defendant were "household members"
(although he would have needed to prove "harassment" within the
meaning of G. L. c. 258E, § 1). Also, as the plaintiff
acknowledged at the hearing, he could have requested a housing
transfer from the university. Additional potential remedies are
referenced in Orla O. v. Patience P., 100 Mass. App. Ct. 126,
130 n.8 (2021).