H.E.M. v. J.M.F.

• Court: Massachusetts Appeals Court
• Decided: June 2, 2025
• Docket: 24-P-0538
• Status: Unpublished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-538

H.E.M.

vs.

J.M.F.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the order of a judge of the

District Court, dated March 19, 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, which a different judge heard. The

defendant was represented by counsel. Both parties testified,

and two exhibits were admitted in evidence. The plaintiff's

testimony, which the second judge explicitly credited, included her account of the defendant's verbal, emotional, and

psychological intimidation, and his aggressive bullying during

their marriage. The plaintiff testified that six months after

she and the defendant married, he pushed her and made sexual

demands of her. She also described two occasions when she awoke

to the defendant slipping his hands between her thighs.

The parties separated for one month, and during that time

the defendant sent the plaintiff threatening text messages and

e-mails. The parties then began going through divorce

proceedings, and the plaintiff testified that she does not feel

safe around the defendant. The plaintiff feared that the

defendant's actions against her would escalate since she

separated from him, testifying, "I've seen his rage, felt his

punishment, heard his threats and ultimatums when he doesn't get

what he wants." She described "living in constant fear,"

particularly after recently learning that the defendant had

bought a mask and planned to stalk her. Due to her fear of him,

she had moved six different times, including moving out-of-

State.

At the hearing, the defendant admitted that he bought a

mask and considered using it to try to find the plaintiff, but

denied buying it to use to stalk her. He denied ever hitting

her or forcing her to have sex.

2 After considering the exhibits and the testimony, the judge

credited the plaintiff's demeanor and testimony, stated that she

had concerns about the divorce litigation, and extended the ex

parte order for one year.

Discussion. The defendant argues that the ex parte order

should not have been extended because the plaintiff did not meet

her burden of proof. 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 (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 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 must show

"by a preponderance of the evidence[] that the defendant has

caused or attempted to cause physical harm, committed a sexual

3 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 (1996). 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).

The defendant contends that the judge incorrectly weighed a

single factor, the parties' ongoing divorce litigation, and that

the decision failed to articulate that he physically abused the

plaintiff or posed a threat of imminent serious physical harm.

After reviewing the record, we conclude that it supports the

judge's decision to extend the restraining order. The judge

credited the plaintiff's testimony about the defendant's past

abuse, his threatening and aggressive behavior, and her ongoing

fear of him during their divorce proceedings. See G.B. v. C.A.,

94 Mass. App. Ct. 389, 396 (2018) (where reasonable basis for

judge's rulings and order is discernible, no specific findings

required); Callahan v. Callahan, 85 Mass. App. Ct. 369, 375

(2014) (judge properly considered totality of circumstances of

relationship including ongoing Probate and Family Court

litigation and "hostility likely engendered thereby").

The defendant also argues that the plaintiff's allegations

do not amount to a reasonable fear of serious imminent physical

4 harm. This argument also fails. While there was no evidence

that the defendant recently caused the plaintiff physical harm,

she testified to his past aggressive and threatening behavior,

and expressed living in constant fear of him since learning

about the mask and his recent plan to stalk her. We conclude

that the plaintiff's 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 discretion or other

error of law in the judge's decision to extend the restraining

order for one year.

Order dated March 19, 2024, extending abuse prevention order affirmed.

By the Court (Massing, Hershfang & Tan, JJ. 1),

Clerk

Entered: June 2, 2025.

1 The panelists are listed in order of seniority.