Heard: January 9, 2019
for protection from abuse filed in the Worcester Division of
the District Court Department on October 8, 2016.
hearing to extend the abuse prevention order was had before
Paul F. LoConto, J.
Penelope A. Kathiwala for the plaintiff.
Present: Milkey, Maldonado, & Kinder, JJ.
plaintiff appeals from an order denying the extension of an
abuse prevention order that was issued pursuant to G. L. c.
209A, § 3 (209A order). She claims that the denial was
an abuse of discretion because the evidence established that
she had an objectively reasonable fear of imminent serious
physical harm from the defendant, her former husband. We
summarize the factual background. On October 8, 2016, the
plaintiff obtained an emergency ex parte 209A order against
the defendant based on evidence that he had harassed her and
"grabbed and pinched [her] arm" during an argument
at their residence. See G. L. c. 209A, §§3, 4.
According to the plaintiff's affidavit, the physical
contact occurred when she attempted to move the children from
the defendant's room while they were sleeping, which the
defendant tried to prevent. Following the ex parte hearing,
the defendant was ordered not to contact or abuse the
plaintiff, to vacate and stay away from the family home, and
to remain one hundred yards away from the plaintiff. The
defendant was also arrested for assault and battery on a
household member. After subsequent hearings at which both
parties appeared, the 209A order was extended to November 15,
2016, and then to December 28, 2016. The parties appeared in
court again on December 28, 2016, and, at the plaintiff's
request, the judge extended the 209A order for one year,
until December 29, 2017.
December 29, 2017, both parties appeared before the judge who
had granted the one-year extension. The plaintiff was
represented by counsel and the defendant appeared pro se.
After the plaintiff requested an additional extension of the
209A order, which the defendant opposed, the judge heard
testimony from the parties. The plaintiff testified that she
remained in fear of the defendant as a result of the original
incident and because she continued to see him at their
children's extracurricular activities. When asked what
specific conduct caused her fear, the plaintiff referred back
to the conduct precipitating the initial 209A order. For his
part, the defendant testified that he and the plaintiff had
been together in public locations "virtually every day
for the past year" while coordinating their
children's activities and parenting time. He also stated
that the parties often attended the children's activities
at the same time. After hearing testimony from both parties,
the judge denied the request for an extension, concluding
that "the credible evidence convinces me that [the
plaintiff] . . . [is] not in need of protection from
hearing to extend a 209A order, the burden is on the
plaintiff to establish facts justifying the extension by a
preponderance of the evidence. Iamele v.
Asselin, 444 Mass. 734, 736 (2005) . "The
standard for obtaining an extension of an abuse prevention
order is the same as for an initial order -- 'most
commonly, the plaintiff will need to show a reasonable fear
of imminent serious physical harm at the time that relief ...
is sought.'" MacDonald v.
Caruso, 467 Mass. 382, 386 (2014), quoting
Iamele, supra at 735. That fear must be
objectively reasonable. See Smith v.
Jones, 75 Mass.App.Ct. 540, 543 (2009). "It is
the totality of the conditions that exist at the time that
the plaintiff seeks the extension, viewed in the light of the
initial abuse prevention order, that govern."
Iamele, supra at 741.
extension request is based on past physical abuse, as it was
in this case, "the failure of the plaintiff to have an
objectively reasonable fear of imminent serious
physical harm does not by itself preclude extension of an
abuse prevention order. Faced with an extension request in
such a circumstance, the judge must make a discerning
appraisal of the continued need for an abuse prevention order
to protect the plaintiff from the impact of the violence
already inflicted." Callahanv.Callahan, 85 Mass.App.Ct. 369, 374 (2014). "The
infliction of some wounds may be so traumatic that the
passage of time alone does not mitigate the victim's fear
of the perpetrator." Vittonev.Clairmont, 64 Mass. App Ct. 479, 489 (2005) .
"That is not to say that a judge must always extend an
order predicated on physical abuse upon request."
Callahan, supra. Among other things, the
judge should consider "the defendant's violations of
protective orders, ongoing child custody or other litigation
. . . likely to engender hostility, the parties' demeanor
in court, the likelihood that the parties will encounter one
another in the course of their usual ...