A.S. v. S.D.

• Court: Massachusetts Appeals Court
• Decided: July 11, 2025
• Docket: 24-P-0838
• Status: Unpublished

Opinion

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-838

A.S.

vs.

S.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the order of a judge of the

District Court, dated May 3, 2024, extending an abuse prevention

order (restraining order) pursuant to G. L. c. 209A. Because we

are satisfied that the evidence credited by the judge was

sufficient to support the order, we affirm.

Background. After issuing an ex parte restraining order

against the defendant, a judge scheduled a two-party extension

hearing with notice to the defendant. Both parties appeared at

the extension hearing, and the defendant was represented by

counsel. Both parties testified, and one exhibit, a video

recording, was admitted in evidence. The plaintiff's testimony,

which the judge explicitly credited, included his account of the defendant's escalating and unpredictable behavior during their

romantic relationship. The plaintiff testified that the

defendant had been "hitting me and attacking me for a very long

time" and that he had told the defendant that if the abuse did

not stop, he would be forced to call 911 or take legal action.

The plaintiff stated that he had pictures of where the defendant

had "damaged" or "hurt" him and that he had scars. The

plaintiff described a particular incident in which the defendant

was out of control, angry, and "destroyed" his apartment. The

plaintiff presented a video recording of the damage to his

apartment that he claimed was caused by the defendant.

After considering the exhibits and the testimony, the judge

stated that "[a]fter hearing and making my determination of the

credibility of the witnesses" the plaintiff had met his burden

of proof. He extended the order for one year. The defendant

appeals.

Discussion. The defendant argues that the ex parte order

should not have been extended because the plaintiff did not meet

his burden of proof.1 We are not persuaded. We review the

extension of a restraining order for an abuse of discretion or

other error of law. E.C.O. v. Compton, 464 Mass. 558, 561-562

1 The defendant initially challenged the issuance of the ex parte order but withdrew the claim at oral argument.

2 (2013). An abuse of discretion occurs where a 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 credibility

determinations of the judge who 'heard the testimony of the

parties . . . [and] observed their demeanor' the utmost

deference." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3

(2006), quoting Pike v. Maguire, 47 Mass. App. Ct. 929, 929

(1999).

A plaintiff seeking to extend a restraining order bears the

burden of establishing, "by a preponderance of the evidence,

that the defendant has caused or attempted to cause physical

harm, committed a sexual assault, or placed the plaintiff in

reasonable fear of imminent serious physical harm." MacDonald

v. Caruso, 467 Mass. 382, 386 (2014). See G. L. c. 209A, § 1.

A judge should consider "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." Iamele v.

Asselin, 444 Mass. 734, 741 (2005).

At the hearing, the defendant sought her own restraining

order, testifying that the plaintiff had physically abused her

3 and describing several incidents in which she suffered verbal

and physical abuse by the plaintiff. The defendant contends

that when considering the plaintiff's request for extension of

the restraining order, the judge incorrectly weighed a single

factor, the defendant's failure to contact police or seek a

restraining order after being abused, and improperly discredited

her testimony. In support of this position, the defendant

points to three occasions during the hearing where the judge

remarked that the defendant never contacted the police or sought

a restraining order after allegedly being abused by the

plaintiff. The defendant correctly notes that a restraining

order should not be denied "solely because it was not filed

within a particular time period after the last alleged incident

of abuse." G. L. c. 209A, § 3. Certainly, while a judge can

consider whether a person did not report abuse to the police or

file for a restraining order when considering the totality of

the circumstances, it must be done with caution. It is not

unusual for a victim of domestic violence to delay reporting.

But the defendant did not appeal from the decision denying her

request for a restraining order; all that is before us is her

appeal from the decision extending the order protecting the

plaintiff. In any event, we do not understand the judge to have

based either decision, or his credibility determinations,

4 "solely" on the defendant's failure to report earlier the

alleged abuse against her.

After reviewing the entire record, and since the only issue

before us is whether the plaintiff has met his burden of proof,

we conclude that the judge's decision to extend the restraining

order was supported by the record. The judge credited the

plaintiff's testimony about the defendant's past abuse, her

threatening and aggressive behavior, and his ongoing fear of

physical harm. See G.B. v. C.A., 94 Mass. App. Ct. 389, 396

(2018) (no specific findings required where reasonable basis for

judge's rulings and order is discernible). We are not persuaded

by the defendant's argument that the plaintiff's allegations do

not amount to a reasonable fear of serious imminent physical

harm. The plaintiff testified that the defendant caused him

physical harm. We conclude that this testimony, which the judge

credited, was sufficient to justify the judge's decision to

extend the restraining order. Considering the totality of the

circumstances of the parties' relationship and the evidence

presented at the extension hearing, we discern no abuse of

5 discretion or other error of law in the judge's decision to

extend the restraining order for one year.

Order dated May 3, 2024, extending abuse prevention order, affirmed.

By the Court (Sacks, Englander & Walsh, JJ.2),

Clerk

Entered: July 11, 2025.

2 The panelists are listed in order of seniority.