R.C. v. C.C.

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-380

R.C.

vs.

C.C.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the issuance of an abuse

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

directing her to stay away from and have no contact with her

mother, the plaintiff. The defendant contends that there was

insufficient evidence to support the issuance of the order. We

affirm.

Background. We summarize the relevant facts underlying the

issuance of the 209A order. On the morning of November 1, 2022,

the plaintiff mother was in her grandson's bedroom in her house.

There was a drying rack in the bedroom that her adult daughter,

the defendant, was using to dry some of her laundry. The drying

rack was blocking the mother's access to her grandson's bed and

so she tried to get around it to get to the bed. However, the

defendant pushed her mother with force enough to cause the
mother to fall into a pile of pillows and blankets and hit her

hip against the "metal-ly, plastic-y" drying rack.

The plaintiff also testified that the defendant had been

mentally abusive toward her by refusing to leave the home, wash

dishes, or vacuum. The defendant, who was being arraigned on a

charge of assault and battery, did not testify at the hearing.

At the conclusion of the hearing, the judge issued the 209A

order which ordered the defendant to vacate the plaintiff's

home, refrain from contacting and abusing the plaintiff, and to

stay away from the plaintiff. The order was scheduled to expire

on November 1, 2023.

Discussion. To support the issuance of the 209A order, the

plaintiff bore the burden to prove by a preponderance of the

evidence that she was suffering from "abuse," which is defined

by G. L. c. 209A, § 1. We review the issuance of a 209A order

"for an abuse of discretion or other error of law." E.C.O. v.

Compton, 464 Mass. 558, 562 (2013). "[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 "utmost deference" to

the credibility determination made by the judge who "heard the

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

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

660, 664 (2020).

To meet her burden, the plaintiff was required to show that

"the defendant has caused or attempted to cause physical harm"

(citation omitted), G.B. v. C.A., 94 Mass. App. Ct. 389, 393

(2018), or that the defendant placed the plaintiff in fear of

imminent serious physical harm. See G. L. c. 209A, § 1 (a),

(b). 1 An "attempt" has been defined as an intent to commit the

underlying act (in this situation, physical harm,) coupled with

an overt act toward its commission. See Commonwealth v. Quiles,

488 Mass. 298, 308 (2021), cert. denied, 142 S. Ct. 1237 (2022).

Based on the evidence before her, the judge could conclude

that the defendant pushed her mother with sufficient force that

it caused the mother to fall back against the drying rack and

onto a pile of bedding. Our jurisprudence does not require any

injury to the plaintiff for a judge to conclude that there has

been an attempt to cause or to actually cause physical harm

pursuant to G. L. c. 209A. We conclude that the push by the

defendant in this case, which had such force to cause the

plaintiff to fall back into the drying rack, is sufficient

1 The third definition of abuse is not relevant, as the plaintiff
mother did not allege that the defendant daughter caused her "to
engage involuntarily in sexual relations by force, threat or
duress." G. L. c. 209A, § 1 (c).

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evidence for a judge to infer that the defendant had an intent

to cause physical harm to the plaintiff. 2

Order dated November 1, 2022,
affirmed.

By the Court (Sacks,
Brennan & D'Angelo, JJ. 3),

Clerk

Entered: November 30, 2023.

2 Since the evidence was sufficient to find that the defendant
attempted to cause physical harm pursuant to G. L. c. 209A,
§ 1 (a), we need not address the defendant's argument that there
was insufficient evidence to find that the defendant placed the
plaintiff in fear or imminent serious physical harm pursuant to
G. L. c. 209A, § 1 (b).
3 The panelists are listed in order of seniority.

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