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-1303
J.S.
vs.
G.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a G. L. c. 209A abuse prevention
order issued by a District Court judge (trial judge). He argues
that the trial judge improperly failed to consider the evidence
at the two-party hearing de novo and unfairly limited his cross-
examination of the plaintiff. Additionally, he contends that
the evidence presented by the plaintiff was insufficient to
support the order issued. We affirm.
Discussion. 1. Consideration of evidence de novo. After
a plaintiff has obtained an ex parte abuse prevention order
pursuant to G. L. c. 209A, the matter is to be scheduled for
another hearing within ten days so that the defendant may be
afforded his fundamental due process rights to notice and an opportunity to be heard. See G. L. c. 209A, § 4. At this first
hearing following notice to the defendant, the "burden is on the
complainant to establish facts justifying the issuance and
continuance of an abuse prevention order." Frizado v. Frizado,
420 Mass. 592, 596 (1995). See S.T. v. E.M., 80 Mass. App. Ct.
423, 429 (2011). "No presumption arises from the fact that a
prior order has issued." Banna v. Banna, 78 Mass. App. Ct. 34,
36 (2010). See id. ("Simply asking the complainant whether she
wanted to extend the order was not enough," where judge took no
additional evidence). If the order is extended at this initial
two-party hearing, then at any subsequent renewal hearing, the
plaintiff's initial entitlement to relief is not revisited. See
Iamele v. Asselin, 444 Mass. 734, 740 (2005) (at renewal
hearing, defendant may not challenge evidence underlying initial
order). Rather, the question in these subsequent renewal
hearings is the plaintiff's continuing need for protection,
whether she continues to suffer from abuse. See Jones v.
Gallagher, 54 Mass. App. Ct. 883, 890 (2002).
The defendant argues that his due process rights were
violated when the trial judge failed to consider the evidence de
novo at the initial two-party hearing. He contends that the
trial judge used the "entry of the ex parte order as [her]
primary basis for issuing an extension," asserting that the
judge "discounted the evidence presented at the extension
2 hearing and instead gave greater weight to the notes of the ex
parte Judge." Although the trial judge did mention the notes of
the ex parte judge, it was only to alert the parties that they
appeared on the plaintiff's affidavit in the court file. After
ensuring that the parties were aware of the notes, the trial
judge made no further reference to them. There is no indication
that the trial judge discounted the evidence before her in favor
of the ex parte judge's notes.
2. Limitation of cross-examination. While a defendant has
a general right to cross-examine the plaintiff, there may be
circumstances in which the judge properly may deny that right in
a G. L. c. 209A hearing. See Frizado, 420 Mass. at 597. A
judge may limit cross-examination for good cause in an exercise
of discretion, such as to avoid harassment, intimidation,
confusion, delay or other abuse of the proceedings. See C.O. v.
M.M., 442 Mass. 648, 658 (2004).
The defendant argues that he was prevented from fully
cross-examining the plaintiff to undermine her credibility by
showing that she was abusing the G. L. c. 209A process in order
to get an advantage in their pending divorce. He contends that
the trial judge ruled that the issue of the plaintiff taking
marital property in contravention of the divorce proceedings was
irrelevant. Although the judge did interrupt defense counsel's
cross-examination to ask about the relevance of the divorce to
3 the 209A proceeding, she allowed cross-examination to continue
after defense counsel made an offer of proof.
In addition to explaining to the trial judge the
defendant's theory that the plaintiff got the restraining order
in order to dispose of the marital property without probate
court approval, defense counsel was then able to elicit from the
plaintiff that the parties had agreed in the divorce proceedings
that the plaintiff would be moving out of the marital home but
that details regarding property division had not been worked
out. The plaintiff agreed that it was her intention to move out
all along, that she had secured another place to live within two
weeks of getting the ex parte G. L. c. 209A order, and that
after getting the ex parte order, she retained new movers. When
defense counsel attempted to get the plaintiff to admit to the
specific property she had taken from the home, the judge
interrupted, saying it was not relevant and that she had
concerns about the plaintiff not being represented.
Far from curtailment of cross-examination, the record
reflects that the defendant was able to question the plaintiff
and get across his theory in full. The judge was well within
her discretion in preventing defense counsel, who was also the
defendant's divorce attorney, from pursuing lines of inquiry
that may have been more appropriate in the divorce proceeding,
particularly where the plaintiff was proceeding pro se.
4 3. Sufficiency of evidence. The plaintiff sought
protection under G. L. c. 209A on the basis that the defendant
had placed her in fear of imminent serious physical harm. When
a plaintiff seeks to establish that the defendant's words and
conduct have put the plaintiff in fear of imminent serious
physical harm, that fear must be objectively reasonable in light
of the defendant's actions and the attendant circumstances. See
Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006).
Additionally, "[g]eneralized apprehension, nervousness, feeling
aggravated or hassled, i.e., psychological distress from vexing
but nonphysical intercourse, when there is no threat of imminent
serious physical harm, does not rise to the level of fear of
imminent serious physical harm." Wooldridge v. Hickey, 45 Mass.
App. Ct. 637, 639 (1998).
The defendant argues that the plaintiff failed to present
evidence sufficient to establish that the defendant placed her
in reasonable fear of imminent serious physical harm. We
disagree. At the outset, the plaintiff testified that she felt
fearful "[f]or the reasons initially stated in the original
affidavit," which began with a statement that the defendant told
her that "he has nothing to lose and has sat in his room with a
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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-1303
J.S.
vs.
G.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from a G. L. c. 209A abuse prevention
order issued by a District Court judge (trial judge). He argues
that the trial judge improperly failed to consider the evidence
at the two-party hearing de novo and unfairly limited his cross-
examination of the plaintiff. Additionally, he contends that
the evidence presented by the plaintiff was insufficient to
support the order issued. We affirm.
Discussion. 1. Consideration of evidence de novo. After
a plaintiff has obtained an ex parte abuse prevention order
pursuant to G. L. c. 209A, the matter is to be scheduled for
another hearing within ten days so that the defendant may be
afforded his fundamental due process rights to notice and an opportunity to be heard. See G. L. c. 209A, § 4. At this first
hearing following notice to the defendant, the "burden is on the
complainant to establish facts justifying the issuance and
continuance of an abuse prevention order." Frizado v. Frizado,
420 Mass. 592, 596 (1995). See S.T. v. E.M., 80 Mass. App. Ct.
423, 429 (2011). "No presumption arises from the fact that a
prior order has issued." Banna v. Banna, 78 Mass. App. Ct. 34,
36 (2010). See id. ("Simply asking the complainant whether she
wanted to extend the order was not enough," where judge took no
additional evidence). If the order is extended at this initial
two-party hearing, then at any subsequent renewal hearing, the
plaintiff's initial entitlement to relief is not revisited. See
Iamele v. Asselin, 444 Mass. 734, 740 (2005) (at renewal
hearing, defendant may not challenge evidence underlying initial
order). Rather, the question in these subsequent renewal
hearings is the plaintiff's continuing need for protection,
whether she continues to suffer from abuse. See Jones v.
Gallagher, 54 Mass. App. Ct. 883, 890 (2002).
The defendant argues that his due process rights were
violated when the trial judge failed to consider the evidence de
novo at the initial two-party hearing. He contends that the
trial judge used the "entry of the ex parte order as [her]
primary basis for issuing an extension," asserting that the
judge "discounted the evidence presented at the extension
2 hearing and instead gave greater weight to the notes of the ex
parte Judge." Although the trial judge did mention the notes of
the ex parte judge, it was only to alert the parties that they
appeared on the plaintiff's affidavit in the court file. After
ensuring that the parties were aware of the notes, the trial
judge made no further reference to them. There is no indication
that the trial judge discounted the evidence before her in favor
of the ex parte judge's notes.
2. Limitation of cross-examination. While a defendant has
a general right to cross-examine the plaintiff, there may be
circumstances in which the judge properly may deny that right in
a G. L. c. 209A hearing. See Frizado, 420 Mass. at 597. A
judge may limit cross-examination for good cause in an exercise
of discretion, such as to avoid harassment, intimidation,
confusion, delay or other abuse of the proceedings. See C.O. v.
M.M., 442 Mass. 648, 658 (2004).
The defendant argues that he was prevented from fully
cross-examining the plaintiff to undermine her credibility by
showing that she was abusing the G. L. c. 209A process in order
to get an advantage in their pending divorce. He contends that
the trial judge ruled that the issue of the plaintiff taking
marital property in contravention of the divorce proceedings was
irrelevant. Although the judge did interrupt defense counsel's
cross-examination to ask about the relevance of the divorce to
3 the 209A proceeding, she allowed cross-examination to continue
after defense counsel made an offer of proof.
In addition to explaining to the trial judge the
defendant's theory that the plaintiff got the restraining order
in order to dispose of the marital property without probate
court approval, defense counsel was then able to elicit from the
plaintiff that the parties had agreed in the divorce proceedings
that the plaintiff would be moving out of the marital home but
that details regarding property division had not been worked
out. The plaintiff agreed that it was her intention to move out
all along, that she had secured another place to live within two
weeks of getting the ex parte G. L. c. 209A order, and that
after getting the ex parte order, she retained new movers. When
defense counsel attempted to get the plaintiff to admit to the
specific property she had taken from the home, the judge
interrupted, saying it was not relevant and that she had
concerns about the plaintiff not being represented.
Far from curtailment of cross-examination, the record
reflects that the defendant was able to question the plaintiff
and get across his theory in full. The judge was well within
her discretion in preventing defense counsel, who was also the
defendant's divorce attorney, from pursuing lines of inquiry
that may have been more appropriate in the divorce proceeding,
particularly where the plaintiff was proceeding pro se.
4 3. Sufficiency of evidence. The plaintiff sought
protection under G. L. c. 209A on the basis that the defendant
had placed her in fear of imminent serious physical harm. When
a plaintiff seeks to establish that the defendant's words and
conduct have put the plaintiff in fear of imminent serious
physical harm, that fear must be objectively reasonable in light
of the defendant's actions and the attendant circumstances. See
Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006).
Additionally, "[g]eneralized apprehension, nervousness, feeling
aggravated or hassled, i.e., psychological distress from vexing
but nonphysical intercourse, when there is no threat of imminent
serious physical harm, does not rise to the level of fear of
imminent serious physical harm." Wooldridge v. Hickey, 45 Mass.
App. Ct. 637, 639 (1998).
The defendant argues that the plaintiff failed to present
evidence sufficient to establish that the defendant placed her
in reasonable fear of imminent serious physical harm. We
disagree. At the outset, the plaintiff testified that she felt
fearful "[f]or the reasons initially stated in the original
affidavit," which began with a statement that the defendant told
her that "he has nothing to lose and has sat in his room with a
gun in his mouth." The affidavit went on to state that the
defendant disconnected the air conditioning in her room, took
the grates off of the stove, tells her to "fuck off" if she asks
5 him a question, and continually parks his car close against
hers, making it difficult, if not impossible, for her to get
into her own car through the driver's side door. When she
finally got a chance to move out, the defendant prevented it by
not allowing the movers to take anything out of the house.
Further, the plaintiff testified that the reasons she
sought the restraining order when she did were that "things
. . . were building up," it felt like a "continuing . . .
emergency situation to get out of there," and "our basic rights
were being taken away, such as . . . removal of the stovetop to
cook a hot meal for my daughter, parking on top of me so I can't
leave unless I ask him." "[I]t was unbearable to live there
. . . . And he also had suggested self-harm to himself with a
gun because he has nothing to lose." When defense counsel
pressed about the fact that the defendant had made no explicit
threats to her, the plaintiff said: "That is a threatening
statement, when you're physically -- you're stating that you
have a gun in your mouth."
Contrary to the defendant's suggestion on appeal,
expressions of self-harm can be taken into consideration in the
calculus of whether a defendant's behavior may instill in the
plaintiff a reasonable fear of imminent serious physical harm.
See Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 396
(2022) (suicide threat part of escalating aggression directed at
6 plaintiff). As the judge noted, "threats don't always have to
be overt" and "behavior can be threatening." The evidence was
sufficient to allow the judge to find that the defendant's
conduct caused the plaintiff to be in reasonable fear of
imminent serious physical harm.
Order of August 10, 2023, affirmed.
By the Court (Rubin, Desmond & Singh, JJ.1),
Clerk
Entered: April 17, 2025.
1 The panelists are listed in order of seniority.