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-1229
H.S.
vs.
N.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the extension of an abuse
prevention order issued in the District Court pursuant to G. L.
c. 209A, § 3 (209A order). He argues that the judge erred in
extending the 209A order because the plaintiff failed to present
evidence of previous abuse or reasonable fear of imminent
serious bodily harm. He further contends that his due process
rights were violated. We affirm.
Background. We draw the following facts from the record,
reserving some for later discussion. On August 28, 2023, the
plaintiff obtained an ex parte abuse prevention order against
the defendant, her husband. On September 12, 2023, following a hearing at which both parties appeared, the 209A order was
extended for one year.
At the next scheduled hearing on September 13, 2024, both
parties appeared with counsel. The plaintiff sought a
"permanent" extension of the 209A order. The judge asked the
plaintiff's counsel, "did you want [the plaintiff] to testify or
do you want to make a proffer on her behalf?" The plaintiff's
counsel stated that she was going to "initially proceed with a
proffer. . . [and] reserve to take [the plaintiff's] testimony."
The plaintiff's counsel then recounted the events leading to the
original 209A order and those justifying its extension. She
explained that the case started with "a police raid in the home
on a joint task force regarding distribution of child
pornography." She asserted that "what was found in [the
defendant's] possession" was "horrific . . . . It was graphic
images of very young children being raped." The proffer also
included a representation that there was an event "a couple of
weeks" before the hearing to extend the 209A order where the
defendant "slap[ped] [his daughter's] butt right in front of the
supervisor" during a visit with his daughter.
Defense counsel objected to the extension, and he denied
that the "slapping [of] the daughter's butt" occurred. Defense
counsel also argued that there were no claims of "serious
2 physical harm" by the defendant and that there are no
indications of the defendant threatening or attempting to harm
the plaintiff.
After a brief discussion between counsel and the judge, the
judge determined "[b]ased on the . . . proffer that I heard from
the plaintiff, I'm making a finding that there is a continuing
need for the order based on the recent events." The judge did
not issue a permanent order and instead extended the order for
five years.
Discussion. 1. Abuse. The defendant contends that there
was no evidence of abuse, and that there is no ongoing
reasonable fear of imminent serious harm as required by G. L.
c. 209A, § 1 (b). Because the defendant cannot challenge the
initial determination of abuse, we review only to determine if
the judge abused her discretion by granting the extension. For
the reasons discussed below, we discern no abuse of discretion.
"We review . . . for an abuse of discretion or other error
of law" (citation omitted). Noelle N. v. Frasier F., 97 Mass.
App. Ct. 660, 664 (2020). We first note that to the extent the
defendant challenges the original prevention abuse order his
claims fail. Judicial discretion is not so broad as to allow a
judge to vacate an original order, its underlying basis cannot
be reviewed nor its validity second guessed at the extension
3 hearing or without proper appeal. See Iamele v. Asselin, 444
Mass. 734, 742 (2005). Moreover, our review is limited because
we do not have the transcripts from the original hearings.
Although the validity of the original 209A order cannot be
revisited, we must still determine whether the judge abused her
discretion in extending it. Whether seeking the issuance of an
initial protective order or a later extension of that order,
"[t]he burden is on the complainant to establish facts
justifying [its] issuance and continuance." Iamele, 444 Mass.
at 736, quoting Frizado v. Frizado, 420 Mass. 592, 596 (1995).
"The plaintiff must meet that burden by a preponderance of the
evidence." Iamele, supra. "Abuse" is defined as, inter alia,
"placing another in fear of imminent serious physical harm."
G. L. c. 209A, § 1. "When a person seeks to prove abuse by fear
of imminent serious physical harm, our cases have required in
addition that the fear be reasonable" (quotation omitted).
Iamele, supra at 737. Furthermore, where the initial order was
issued on the basis that the plaintiff had a reasonable fear of
imminent serious physical harm, the inquiry is whether the
plaintiff continues to have a reasonable fear of imminent
serious physical harm. See Callahan v. Callahan, 85 Mass. App.
Ct. 369, 374 (2014); Guidelines for Judicial Practice: Abuse
Prevention Proceedings § 6:08 (Oct. 2021).
4 "In determining whether an apprehension of anticipated
physical force is reasonable, a court will look to the actions
and words of the defendant in light of the attendant
circumstances" (citation omitted). Ginsberg v. Blacker, 67
Mass. App. Ct. 139, 143 (2006). However, "for the plaintiff's
fear of imminent serious physical harm to be reasonable, it is
not necessary that there be a history -- or even a specific
incident of physical violence." Noelle N., 97 Mass. App. Ct. at
665. "[A] judge must consider the totality of the circumstances
of the parties' relationship . . . [including] the defendant's
violations of protective orders, ongoing child custody or other
litigation that engenders or is likely to engender hostility,
. . . and significant changes in the circumstances of the
parties." Iamele, 444 Mass. at 740. When extending the 209A
order, the judge implicitly found that the plaintiff did have
reasonable fear of imminent serious physical harm. See G.B. v.
C.A., 94 Mass App. Ct. 389, 396 (2018) ("where we are able to
discern a reasonable basis for the order in the judge's rulings
and order, no specific findings are required").
On the present record, we cannot say that the judge abused
her discretion. See Iamele, 444 Mass. at 741. The proffer at
the hearing established the defendant's disregard of his
behavior when he "slap[ped] [his daughter's] butt right in front
5 of the supervisor." The plaintiff's attorney's proffer also
noted that the defendant's sister supervised a visit where the
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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
24-P-1229
H.S.
vs.
N.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the extension of an abuse
prevention order issued in the District Court pursuant to G. L.
c. 209A, § 3 (209A order). He argues that the judge erred in
extending the 209A order because the plaintiff failed to present
evidence of previous abuse or reasonable fear of imminent
serious bodily harm. He further contends that his due process
rights were violated. We affirm.
Background. We draw the following facts from the record,
reserving some for later discussion. On August 28, 2023, the
plaintiff obtained an ex parte abuse prevention order against
the defendant, her husband. On September 12, 2023, following a hearing at which both parties appeared, the 209A order was
extended for one year.
At the next scheduled hearing on September 13, 2024, both
parties appeared with counsel. The plaintiff sought a
"permanent" extension of the 209A order. The judge asked the
plaintiff's counsel, "did you want [the plaintiff] to testify or
do you want to make a proffer on her behalf?" The plaintiff's
counsel stated that she was going to "initially proceed with a
proffer. . . [and] reserve to take [the plaintiff's] testimony."
The plaintiff's counsel then recounted the events leading to the
original 209A order and those justifying its extension. She
explained that the case started with "a police raid in the home
on a joint task force regarding distribution of child
pornography." She asserted that "what was found in [the
defendant's] possession" was "horrific . . . . It was graphic
images of very young children being raped." The proffer also
included a representation that there was an event "a couple of
weeks" before the hearing to extend the 209A order where the
defendant "slap[ped] [his daughter's] butt right in front of the
supervisor" during a visit with his daughter.
Defense counsel objected to the extension, and he denied
that the "slapping [of] the daughter's butt" occurred. Defense
counsel also argued that there were no claims of "serious
2 physical harm" by the defendant and that there are no
indications of the defendant threatening or attempting to harm
the plaintiff.
After a brief discussion between counsel and the judge, the
judge determined "[b]ased on the . . . proffer that I heard from
the plaintiff, I'm making a finding that there is a continuing
need for the order based on the recent events." The judge did
not issue a permanent order and instead extended the order for
five years.
Discussion. 1. Abuse. The defendant contends that there
was no evidence of abuse, and that there is no ongoing
reasonable fear of imminent serious harm as required by G. L.
c. 209A, § 1 (b). Because the defendant cannot challenge the
initial determination of abuse, we review only to determine if
the judge abused her discretion by granting the extension. For
the reasons discussed below, we discern no abuse of discretion.
"We review . . . for an abuse of discretion or other error
of law" (citation omitted). Noelle N. v. Frasier F., 97 Mass.
App. Ct. 660, 664 (2020). We first note that to the extent the
defendant challenges the original prevention abuse order his
claims fail. Judicial discretion is not so broad as to allow a
judge to vacate an original order, its underlying basis cannot
be reviewed nor its validity second guessed at the extension
3 hearing or without proper appeal. See Iamele v. Asselin, 444
Mass. 734, 742 (2005). Moreover, our review is limited because
we do not have the transcripts from the original hearings.
Although the validity of the original 209A order cannot be
revisited, we must still determine whether the judge abused her
discretion in extending it. Whether seeking the issuance of an
initial protective order or a later extension of that order,
"[t]he burden is on the complainant to establish facts
justifying [its] issuance and continuance." Iamele, 444 Mass.
at 736, quoting Frizado v. Frizado, 420 Mass. 592, 596 (1995).
"The plaintiff must meet that burden by a preponderance of the
evidence." Iamele, supra. "Abuse" is defined as, inter alia,
"placing another in fear of imminent serious physical harm."
G. L. c. 209A, § 1. "When a person seeks to prove abuse by fear
of imminent serious physical harm, our cases have required in
addition that the fear be reasonable" (quotation omitted).
Iamele, supra at 737. Furthermore, where the initial order was
issued on the basis that the plaintiff had a reasonable fear of
imminent serious physical harm, the inquiry is whether the
plaintiff continues to have a reasonable fear of imminent
serious physical harm. See Callahan v. Callahan, 85 Mass. App.
Ct. 369, 374 (2014); Guidelines for Judicial Practice: Abuse
Prevention Proceedings § 6:08 (Oct. 2021).
4 "In determining whether an apprehension of anticipated
physical force is reasonable, a court will look to the actions
and words of the defendant in light of the attendant
circumstances" (citation omitted). Ginsberg v. Blacker, 67
Mass. App. Ct. 139, 143 (2006). However, "for the plaintiff's
fear of imminent serious physical harm to be reasonable, it is
not necessary that there be a history -- or even a specific
incident of physical violence." Noelle N., 97 Mass. App. Ct. at
665. "[A] judge must consider the totality of the circumstances
of the parties' relationship . . . [including] the defendant's
violations of protective orders, ongoing child custody or other
litigation that engenders or is likely to engender hostility,
. . . and significant changes in the circumstances of the
parties." Iamele, 444 Mass. at 740. When extending the 209A
order, the judge implicitly found that the plaintiff did have
reasonable fear of imminent serious physical harm. See G.B. v.
C.A., 94 Mass App. Ct. 389, 396 (2018) ("where we are able to
discern a reasonable basis for the order in the judge's rulings
and order, no specific findings are required").
On the present record, we cannot say that the judge abused
her discretion. See Iamele, 444 Mass. at 741. The proffer at
the hearing established the defendant's disregard of his
behavior when he "slap[ped] [his daughter's] butt right in front
5 of the supervisor." The plaintiff's attorney's proffer also
noted that the defendant's sister supervised a visit where the
defendant became aggressive and made her uncomfortable, and that
the sister refused to continue supervising visits. Furthermore,
the plaintiff's affidavit averred that the defendant has mental
health disorders that make her "afraid that [the defendant] may
kill [the plaintiff] and then commit suicide." The judge could
further consider the couple's continuing contact through a
divorce proceeding in the probate court. See id. at 740.
Finally, the plaintiff's attorney proffered that, at a prior
hearing, there was evidence presented that "once the initial
order entered, [the defendant] went into the house" in violation
of the 209A order. See Smith v. Jones, 75 Mass. App. Ct. 540,
544 (2009) ("a judge has wide discretion . . . and can properly
take into account the entire history of the parties'
relationship").
The defendant counters that there is no history of physical
violence, and thus there could be no finding of abuse or
reasonable fear of imminent serious physical harm. Our case
law, however, does not require proof of physical violence. See
Noelle N., 97 Mass. App. Ct. at 665. Cf. Larkin v. Ayer Div. of
the Dist. Court Dep't, 425 Mass. 1020, 1020 (1997) (serving
lawsuits insufficient basis for 209A order); Wooldridge v.
6 Hickey, 45 Mass. App. Ct. 637, 639 (1998) (belief that 209A
order "would level the field in [a] forthcoming custody and
support discussion . . . [is] not an appropriate criterion for
issuance of an abuse prevention order"). Thus, given that the
facts presented show reasonable fear of imminent serious
physical harm despite the lack of physical violence, and given
the original abuse prevention order, we see no abuse of
discretion in the judge's extension of the order. See Iamele,
444 Mass. at 741.
2. Due process. The defendant also contends that his due
process rights were violated because the hearing relied solely
on attorney proffers rather than direct testimony, and because
plaintiff's counsel improperly invoked her prosecutorial
experience to bolster her arguments. The defendant, however,
did not raise these arguments at the hearing, and thus, they are
waived. Indeed, the defendant acquiesced to the proceeding by
way of his own proffer and neither objected to the procedure
used at the hearing, nor sought to present his own evidence or
to examine the plaintiff, who was sworn in and available to
testify. Smith v. Joyce, 421 Mass. 520, 521-522 (1995)
(rejecting argument that defendant's rights were violated by
order extended in his absence where counsel was present and
failed to object to hearing going forward). Cf. C.O. v. M.M.,
7 442 Mass. 648, 657-658 (2004) (abuse prevention order vacated
where defendant sought to present evidence and to cross-examine
but was denied opportunity). Similarly, the defendant's counsel
did not object to the plaintiff's counsel's brief statements
discussing her prosecutorial experience. See Diaz v. Gomez, 82
Mass. App. Ct. 55, 63 (2012) ("through failure to raise [due
process] claim in the trial court, the defendant has waived any
due process objection to the procedure followed by the judge").1
Thus, on the record before us, we discern no abuse of
discretion in the extension of the abuse prevention order.
Order entered September 13, 2024, extending abuse prevention order for five years, affirmed.
By the Court (Meade, Neyman & Walsh, JJ.2),
Clerk
Entered: November 26, 2025.
1 While the usual principles of waiver do not strictly control in 209A proceedings, a party still must make some effort to preserve an issue for review. See Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 790-791 (2022). Here, defense counsel made no effort to object or otherwise raise either issue before the judge, and thus waiver applies.
2 The panelists are listed in order of seniority.