CourtListener 9497251•M.B. v. A.G.
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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-286
M.B.
vs.
A.G.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On December 30, 2020, M.B. applied for an abuse prevention
order against her estranged husband, A.G., pursuant to G. L.
c. 209A, § 3. In her application, M.B. alleged that A.G. had on
multiple occasions sexually assaulted her and had bitten her and
their son. A District Court judge issued a temporary ex parte
order that day and then -- following a two-party virtual hearing
-- the judge issued a one-year order due to expire on January
13, 2022. The order subsequently was extended on two occasions,
most recently for an additional two years by an order issued
after an evidentiary hearing held on February 8, 2023. A.B. now
challenges the order allowing that extension, arguing
principally that M.B. failed to provide sufficient evidence to
show that she had an objectively reasonable fear of imminent
serious physical harm. A.G. additionally argues that the judge
should not have considered evidence that A.G. allegedly violated
the order, because his actions constituted protected speech. We
affirm.
Background. We summarize the evidence before the judge.
The parties met in May 2015 and began dating. A few weeks into
their relationship, A.G. sent the plaintiff a photograph of the
two of them taken while M.B. was asleep. The caption read, "I'm
going to kill you . . . ." A.G. testified that he intended the
message as a joke.
The parties married in 2018, and their son was born in
2019. In 2020, tensions began to escalate between the parties.
Two primary issues in the marriage were A.G.'s "sexual
aggression" toward the plaintiff and his alcohol use. In June
2020, A.G. attended an alcohol rehabilitation program in
Arizona. During that month, the parties exchanged a series of
email messages in which A.G. acknowledged -- in the context of
his asking M.B. for forgiveness -- that he was "sexually
abusive" to her, which he attributed to his "screwed up history
with sex." M.B. had listed specific instances of A.G.'s sexual
aggression, which she referenced as "sexual abuse" and a
"violation of [her] body." Although M.B. noted that A.G.'s
behavior had "gotten a lot better," she expressed that she still
felt "immediate anxiety" when A.G. initiated sex. Her fear of
A.G. rose to the point where she was afraid to even hug him.
2
In July of 2020, M.B. found a bite mark on their son's arm.
She took him to see a doctor, who could not determine if the
bite was caused by a human but nevertheless reported the matter
to the Department of Children and Families (DCF). A DCF social
worker contacted the parties regularly over the following weeks
in an effort to ensure the boy's safety. Both parties told the
social worker that A.G. regularly bit the son. According to
A.G., he bit the child as a joke but unintentionally may have
bitten him too hard on that occasion. A.G. later claimed that
he had not acknowledged such biting to the social worker and
attempted to suggest that the bite may have occurred at the
son's day care. The social worker concluded that A.G. was not
able to provide for the child's safety and that the child was
safest with M.B.
In spite of this, the parties remained in a relationship
through September 2020. According to M.B., "sometimes things
were good, and sometimes things weren't." The parties were
considering having another baby.
In December 2020, the relationship took a turn for the
worse. When M.B. told A.G. in early December that she wanted a
divorce, he threatened to leave with their son. Before leaving
their home, M.B. called the police, telling them that A.G. was
suicidal. A.G. voluntarily admitted himself to the hospital,
and while he was there, M.B. left the home with their son.
3
After returning home from the hospital, A.G. filed a police
report alleging that M.B. had "cleaned out their bank accounts."
M.B. filed her application for an abuse prevention order in
District Court shortly after A.G. returned from the hospital.
On the preprinted application form, M.G. checked a box stating
that A.G. had "[p]laced [her] in fear of imminent serious
physical harm." She added that she was afraid of A.G. because
he had threatened to kill himself and "becomes violent and
suicidal when he is angry." M.B. did not check the boxes
stating that A.G. had "[c]aused [her] physical harm" or
"[c]aused [her] to engage in sexual relations by force, threat,
or duress." However, in the affidavit supporting her
application, she swore to several instances of past physical and
sexual abuse. For instance, she said that when A.G. wanted to
have sex and she said no, he "grab[bed] [her] breasts and [her]
butt," restrained her, and "pushe[d] [her] towards the bed and
floor." She also stated that A.G. would continue to have sex
with her even after she told him it hurt and asked him to stop.
In addition to the violence during sexual intercourse, M.B.
described times that A.G. hit her breasts to the point where she
cried, hit her on the buttocks hard enough to leave a welt, and
bit her hard enough to leave a bruise.
A District Court judge issued a temporary abuse prevention
order prohibiting A.G. from contacting M.B., and it ordered him
4
to maintain a one hundred foot distance from her. Following a
two-party hearing, the judge issued a one-year order, which was
extended for an additional year. In a parallel divorce
proceeding, a Probate and Family Court judge issued a temporary
order that granted M.B. physical custody of the son, while
maintaining joint legal custody. That same order prohibited
disclosure to A.G. of the addresses where M.B. lived and worked,
as well as the location of the son's daycare.
In April of 2021, A.G. posted a photo on Facebook of their
son as an infant, with a caption consisting of a quote without
attribution that read, "The wicked are ensnared by the works of
their hands." A.G. testified that this was a biblical reference
meant to convey that "justice [had] prevail[e]d" in their
divorce proceedings with respect to custody.1 M.B. found the
post "disturbing," and she viewed it as a threat. In March of
2022, the judge in the divorce proceeding issued a temporary
order under which "[a]ll communications between the parties are
limited to [the subject of] the child and shall be done through
[an application known as] Our Family Wizard" (OFW).
A.G. claimed that as of April 2022, he believed that he and
M.B. "had turned a corner" in their communications. According
1 A.G. also said he believed M.B. would understand the
biblical reference because she had a master's degree in
theology.
5
to him, the parties were "sending pictures [of their son] back
and forth," and having light-hearted discussions about him. The
next month, A.G. sent M.B. a message through OFW which he ended
by saying, "I like the glasses!" (in apparent reference to
M.B.'s new eyeglasses). The day after that message, the parties
met at a police station, the required location for exchanging
custody of the son for his visits with A.G. During that
encounter, A.G., while crying and standing between M.B. and the
exit, addressed M.B. by telling her that he wanted to make her
happy.2 M.B. testified that this incident scared her. Shortly
thereafter, A.G. sent a message to M.B. through OFW, ending with
"Happy May 16th, . . . sigh." (in apparent reference to the
anniversary of their first date). M.B. testified that this made
her "feel sick."3
Tensions between the parties continued to escalate and
culminated in a series of messages sent between November 2022
and January 2023. According to the most recent temporary order
issued in the divorce proceeding, M.B. was allowed to cancel
visits between A.G. and the son for nonemergency reasons, with
2 A.G. contested this version of events and testified at the
February 2023 hearing that he said he wanted to make "everybody"
happy, not M.B. specifically.
3 M.B. reported the messages and the incident at the police
station as a violation of the abuse prevention order. A
complaint issued, but the charges eventually were dismissed.
6
the provision that she reschedule them within sixty days. On
November 11, 2022, A.G. sent M.B. a message asking her to
explain why she had canceled one of his visits with their son on
August 23, 2022. On January 5, 2023, A.G. sent another message,
demanding a reason for the cancellations and asking if M.B. had
taken their son out of the State. Seven minutes later, he sent
another message, saying, "[W]e have joint legal custody, and
this information you can't withhold." Later that month, M.B.
again canceled A.G.'s time with their son. Suspecting that M.B.
had gone to out of State with the son to visit her parents, A.G.
sent M.B. a message on January 13, 2023, saying he hoped they
"both make it home safely." According to A.G., he was merely
expressing concern for M.B.'s safety, in part because he
surmised that M.B. had taken the son to visit her parents even
though she previously had told him she was sexually abused by
her grandfather and physically abused by her mother. After
sending the message, A.G. confirmed that M.B. had gone out of
State to visit her family by looking at M.B.'s Google calendar.
M.B. had taken steps to block A.G.'s access to her Google
calendar, but those steps apparently were not successful.
M.B. viewed the message from A.G. not in the light he
claims it was intended, but as a threat. She was especially
concerned to think that A.G. seemed to be tracking her
7
whereabouts, which he was not supposed to know.4 This made her
"deeply disturbed and scared," and she filed a report with the
local police department on January 18, 2023.5 As she explained
during her testimony at the February 2023 hearing, she
interpreted the message from A.G. as communicating: "I know
what you're doing and where you are, and when you're doing it
. . . he was saying he's watching me, and I didn't know how."
By order docketed on February 10, 2023, a District Court
judge extended the abuse prevention order for another two years.
The judge found that "plaintiff [] met her burden," without
providing further explanation.
Discussion. In the current appeal, A.G. challenges only
the February 2023 order extending the abuse prevention order for
an additional two years. We review the trial court judge's
decision for abuse of discretion or other error of law. E.C.O.
v. Compton, 464 Mass 558, 562 (2013). Where an extension of an
abuse prevention order has been granted, in reviewing the
4At this point, M.B. had taken numerous steps to ensure
that A.G. did not know her location. Shortly before her trip
out of State, she bought a house and worked with the
Massachusetts Address Confidentiality Program to ensure that her
name would not be associated with her address. However, her new
address was listed in her Google calendar, which she did not
know A.G. still could access.
5 The police in fact sought a criminal complaint charging
the defendant with another violation of the abuse prevention
order. Although a complaint issued, it was subsequently
dismissed on A.G.'s motion, without explanation.
8
sufficiency of the evidence, we view the evidence in the light
most favorable to the plaintiff. Szymkowski v. Szymkowski, 57
Mass. App. Ct. 284, 285 n.4 (2003). This means, among other
things, that we disregard A.G.'s denials and his claims that his
actions were intended as a joke. Where a reviewing court is
"able to discern a reasonable basis for the order [. . .] no
specific findings [from the issuing judge] are required." G.B.
v. C.A., 94 Mass. App. Ct. 389, 396 (2018). A.G. makes two
arguments, which we address in turn.
1. Sufficiency. We begin by noting that where applicants
can demonstrate that they suffered actual or attempted physical
or sexual harm, their burden is somewhat lessened than for those
who are claiming a reasonable fear of imminent serious physical
harm. See Callahan v. Callahan, 85 Mass. App. Ct. 369, 373
(2014), quoting Iamele v. Asselin, 444 Mass. 734, 740 n.3 (2005)
("[i]f a plaintiff were suffering from attempted or actual
physical abuse or involuntary sexual relations, there is no
question that an extension should be granted"). See also G. L.
c. 209A, § 1 (defining "abuse" as "attempting to cause or
causing physical harm," "placing another in fear of imminent
serious physical harm," or "causing another to engage
involuntarily in sexual relations by force, threat or duress").
Although there plainly was evidence before the judge that M.B.
suffered "actual physical abuse or involuntary sexual relations"
9
at the hands of A.G., Iamele, supra, A.G. suggests that our
review is confined to whether she can prove continued fear of
imminent serious physical harm, because that was the only stated
basis of her initial request (based on which box she checked on
the preprinted form). We are not persuaded.
There was nothing hidden about the nature of M.B.'s factual
allegations. Her supporting affidavit contained information
about both her fear of future harm and the past physical harm
she and their son suffered at the hands of A.G. It described in
detail the various forms of unwanted physical and sexual
touching to which A.G. subjected her, including forcibly
grabbing intimate areas of her body and continuing to have sex
with her when she refused. At least where, as here, a defendant
is unable to claim unfair surprise, we do not view a party's
failure to check the applicable boxes as limiting our review.
Moreover, even if the judge's review had been limited to
whether M.B. had demonstrated that she had an objectively
reasonable, subjective fear that A.G. would cause her imminent
serious bodily harm, there was ample evidence to support that
finding, including the evidence of the past physical and sexual
abuse she suffered. Contrary to A.G.'s arguments, the judge not
only could consider the factual record previously established in
weighing whether to extend the order, he was required to do so.
See Iamele, 444 Mass. at 740 ("In evaluating whether a plaintiff
10
has met her burden, a judge must consider the totality of the
circumstances of the parties' relationship"). The evidence that
M.B. had suffered past physical and sexual abuse by A.G. was
ample. Indeed, A.G. acknowledged in his June 2020 email message
that he was "sexually abusive" to her. This included the
forcible sex referenced above, as well as acts such as hitting
M.B.'s breasts with enough force to make her cry and biting her
"hard enough to leave a bruise." Given the severity of the
abuse she suffered, M.B.'s statements that she felt "scared" and
"on edge" when A.G. blocked her exit in the police station in
May 2022, and that she was "deeply disturbed and scared" when
A.G. sent her the January 2023 message suggesting he knew that
she was out of State, were sufficient to show her subjective
fear.
A.G.'s history of abuse toward M.B. also made her fear
objectively reasonable. See Vittone v. Clairmont, 64 Mass. App.
Ct. 479, 487 (2005) ("[T]he nature and duration of a
relationship, as well as any prior history of violence, threats,
or hostility within it" are necessary contexts "for assessing
the reasonableness of an applicant's fear of imminent serious
physical harm"). There was ample record evidence on which the
judge could conclude that it was reasonable for M.B. to continue
to fear imminent serious physical harm from A.G. when he blocked
her exit at the police station and when he suggested he knew how
11
to find her. He in fact acknowledged the actions he took to
track down where she was living.
2. First Amendment. A.G. separately argues that the judge
could not consider statements that he had made to M.B. that she
claimed had placed her in fear, because those statements
encompassed speech protected by the First Amendment to the
United States Constitution.6 There is no merit to this argument.
"While an abuser has a right to speak his mind freely in any
number of forums, he has no right to seek out and contact the
victim of his abuse, forcing that victim to endure his unwanted
and destructive presence in her life." Commonwealth v.
Thompson, 45 Mass. App. Ct. 523, 525 (1998).
Extension order entered
February 10, 2023,
affirmed.
By the Court (Milkey, Henry &
Desmond, JJ.7),
Assistant Clerk
Entered: April 26, 2024.
6 In fact, A.G. argues that the dismissal of the criminal
charges that he had faced for allegedly violating the abuse
prevention order somehow conclusively establish the protected
nature of the actions he had taken. Putting aside that the
reason why the charges were dismissed is not apparent on the
record before us, any determination made by the judge in that
proceeding would not be binding on M.B., who was not a party to
the criminal case.
7 The panelists are listed in order of seniority.
12
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