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-969
K.C.
vs.
F.A.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order entered by a District
Court judge extending an abuse prevention order issued pursuant
to G. L. c. 209A (209A order). Because we are satisfied that
the testimony credited by the judge was sufficient to support a
five year extension of the 209A order, we affirm.
Background. The parties were previously married and are
the parents of two children. In 2020, the plaintiff sought a
209A order after the defendant came home and placed her in
"intense fear of harm." The plaintiff alleged that the
defendant had yelled and cursed at her and followed her when she
attempted to get away from him, screaming and pounding on the
door of a room in which she had barricaded herself. The plaintiff also alleged that the defendant had elbowed their five
year old son and that the defendant insisted that he was
entitled to use physical force with the child to show dominance.
The plaintiff further alleged that the defendant was the subject
of a "supported" investigation conducted by the Department of
Children and Families (DCF), had a history of alcohol misuse and
"alcohol-related arrests," and physically blocked her in rooms
of their home despite the plaintiff's requests to leave.
A judge issued a temporary 209A order, including a
provision granting the plaintiff custody of the two children.1
The 209A order was extended after a two-party hearing on
December 4, 2020, for a period of six months. Thereafter, the
209A order was extended on four additional occasions2 and was
modified on four other occasions.3 The December 2020
modification order "deleted" paragraph twelve of the 209A order,
by agreement of the parties, which had ordered the defendant to
surrender all "guns, ammunition, gun licenses[,] and FID cards."
1 The docket reflects a finding at the time of the issuance of the temporary 209A order "that there is a substantial likelihood of immediate danger of abuse."
2 The 209A order was extended on June 4, 2021, June 3, 2022, June 5, 2023, and June 5, 2024. The defendant did not appear at the June 2023 extension hearing.
3 The 209A order was modified on December 23, 2020, September 21, 2021, April 13, 2022, and April 24, 2024.
2 The April 2022 modification order (issued by a judge of the
Probate and Family Court) reinstated the firearm surrender, and
the District Court judge continued the firearm surrender in the
June 2022 and June 2023 extension orders.4
Both parties appeared, and were self-represented, at the
2024 extension hearing. The plaintiff testified that she still
feared the defendant. The plaintiff further testified that she
believed the defendant's alcohol issues were ongoing based on
her observations of the defendant during video calls to their
children, that the parties' divorce was not yet finalized, and
that she continued to live in the marital home, which the
parties still co-owned.
The plaintiff also testified that the defendant had not
adhered to the conditions of prior restraining orders: he sent
her text messages, called her outside of the permitted time
frame for communication, and contacted her mother. The
plaintiff testified that she feared that without the 209A order,
the defendant would pick up their two children from school or
come near the house.
4 The defendant did not appeal from the initial 209A order or any extension or modification, including the firearm surrender reinstatement, prior to the extension granted on June 5, 2024.
3 The judge asked the plaintiff about prior physical
violence, and the plaintiff testified that the defendant grabbed
her, restricted her movements, blocked and barricaded her with
his body, and threw things at her, including in the presence of
their children and the plaintiff's mother. The defendant
testified in response to this testimony that he had "no idea
what she's referring to whatsoever."
The defendant testified that he resides outside of
Massachusetts, is only able to see the parties' children once
per month, and believes the 209A order is an impediment to
coparenting the children. The defendant also testified that he
had not threatened or been violent toward the plaintiff since
the 209A order had issued, and that he was in the Navy Reserve,
anticipated to deploy in the next year.
As we have noted, the judge extended the 209A order for a
period of five years.5 The present appeal followed.
Discussion. The defendant argues that the 209A order
should not have been extended because the plaintiff did not meet
her burden of proof. The defendant further argues that the
firearm restriction is improper because it could bar him from
"deploying and serving [his] country." We are not persuaded.
5 The plaintiff had requested a permanent order.
4 We review the extension of a 209A order for an abuse of
discretion or other error of law. E.C.O. v. Compton, 464 Mass.
558, 561-562 (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 209A order based on
evidence that the defendant caused physical harm to the
plaintiff, G. L. c. 209A, § 1 (a), need not prove a reasonable
fear of imminent future physical abuse. When the plaintiff has
suffered physical abuse, "a judge may reasonably conclude that a
c. 209A order is necessary 'because the damage resulting from
that physical harm affects the victim even when further physical
attack is not reasonably imminent.'" Yahna Y. v. Sylvester S.,
97 Mass. App. Ct. 184, 187 (2020), quoting Callahan v. Callahan,
85 Mass. App. Ct. 369, 374 (2014). A judge should consider "the
totality of the conditions that exist at the time that the
5 plaintiff seeks the extension, viewed in the light of the
initial abuse prevention order." Iamele v. Asselin, 444 Mass.
734, 741 (2005).
In June 2021, in extending the 209A order for a year, 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-969
K.C.
vs.
F.A.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order entered by a District
Court judge extending an abuse prevention order issued pursuant
to G. L. c. 209A (209A order). Because we are satisfied that
the testimony credited by the judge was sufficient to support a
five year extension of the 209A order, we affirm.
Background. The parties were previously married and are
the parents of two children. In 2020, the plaintiff sought a
209A order after the defendant came home and placed her in
"intense fear of harm." The plaintiff alleged that the
defendant had yelled and cursed at her and followed her when she
attempted to get away from him, screaming and pounding on the
door of a room in which she had barricaded herself. The plaintiff also alleged that the defendant had elbowed their five
year old son and that the defendant insisted that he was
entitled to use physical force with the child to show dominance.
The plaintiff further alleged that the defendant was the subject
of a "supported" investigation conducted by the Department of
Children and Families (DCF), had a history of alcohol misuse and
"alcohol-related arrests," and physically blocked her in rooms
of their home despite the plaintiff's requests to leave.
A judge issued a temporary 209A order, including a
provision granting the plaintiff custody of the two children.1
The 209A order was extended after a two-party hearing on
December 4, 2020, for a period of six months. Thereafter, the
209A order was extended on four additional occasions2 and was
modified on four other occasions.3 The December 2020
modification order "deleted" paragraph twelve of the 209A order,
by agreement of the parties, which had ordered the defendant to
surrender all "guns, ammunition, gun licenses[,] and FID cards."
1 The docket reflects a finding at the time of the issuance of the temporary 209A order "that there is a substantial likelihood of immediate danger of abuse."
2 The 209A order was extended on June 4, 2021, June 3, 2022, June 5, 2023, and June 5, 2024. The defendant did not appear at the June 2023 extension hearing.
3 The 209A order was modified on December 23, 2020, September 21, 2021, April 13, 2022, and April 24, 2024.
2 The April 2022 modification order (issued by a judge of the
Probate and Family Court) reinstated the firearm surrender, and
the District Court judge continued the firearm surrender in the
June 2022 and June 2023 extension orders.4
Both parties appeared, and were self-represented, at the
2024 extension hearing. The plaintiff testified that she still
feared the defendant. The plaintiff further testified that she
believed the defendant's alcohol issues were ongoing based on
her observations of the defendant during video calls to their
children, that the parties' divorce was not yet finalized, and
that she continued to live in the marital home, which the
parties still co-owned.
The plaintiff also testified that the defendant had not
adhered to the conditions of prior restraining orders: he sent
her text messages, called her outside of the permitted time
frame for communication, and contacted her mother. The
plaintiff testified that she feared that without the 209A order,
the defendant would pick up their two children from school or
come near the house.
4 The defendant did not appeal from the initial 209A order or any extension or modification, including the firearm surrender reinstatement, prior to the extension granted on June 5, 2024.
3 The judge asked the plaintiff about prior physical
violence, and the plaintiff testified that the defendant grabbed
her, restricted her movements, blocked and barricaded her with
his body, and threw things at her, including in the presence of
their children and the plaintiff's mother. The defendant
testified in response to this testimony that he had "no idea
what she's referring to whatsoever."
The defendant testified that he resides outside of
Massachusetts, is only able to see the parties' children once
per month, and believes the 209A order is an impediment to
coparenting the children. The defendant also testified that he
had not threatened or been violent toward the plaintiff since
the 209A order had issued, and that he was in the Navy Reserve,
anticipated to deploy in the next year.
As we have noted, the judge extended the 209A order for a
period of five years.5 The present appeal followed.
Discussion. The defendant argues that the 209A order
should not have been extended because the plaintiff did not meet
her burden of proof. The defendant further argues that the
firearm restriction is improper because it could bar him from
"deploying and serving [his] country." We are not persuaded.
5 The plaintiff had requested a permanent order.
4 We review the extension of a 209A order for an abuse of
discretion or other error of law. E.C.O. v. Compton, 464 Mass.
558, 561-562 (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 209A order based on
evidence that the defendant caused physical harm to the
plaintiff, G. L. c. 209A, § 1 (a), need not prove a reasonable
fear of imminent future physical abuse. When the plaintiff has
suffered physical abuse, "a judge may reasonably conclude that a
c. 209A order is necessary 'because the damage resulting from
that physical harm affects the victim even when further physical
attack is not reasonably imminent.'" Yahna Y. v. Sylvester S.,
97 Mass. App. Ct. 184, 187 (2020), quoting Callahan v. Callahan,
85 Mass. App. Ct. 369, 374 (2014). A judge should consider "the
totality of the conditions that exist at the time that the
5 plaintiff seeks the extension, viewed in the light of the
initial abuse prevention order." Iamele v. Asselin, 444 Mass.
734, 741 (2005).
In June 2021, in extending the 209A order for a year, the
same judge made written findings that the plaintiff testified to
prior physical abuse, that both parties were in the Navy, that
the Navy had supported allegations of child abuse, and that the
parties were in divorce proceedings. At the June 2024 hearing,
the judge referenced these prior findings and credited the
plaintiff's testimony about the abuse, the defendant's
assaultive behavior of the plaintiff and the children, and the
plaintiff's ongoing fear. The judge was familiar with the
parties from prior hearings and properly considered the totality
of the circumstances of the parties' relationship, including the
past incidents of abuse, the ongoing custody and divorce
litigation between the parties, the defendant's criminal history
for resisting arrest and alcohol-related offenses, and the
investigation of DCF and the Navy which supported a finding
against the defendant.
The judge credited the plaintiff's testimony relative to
"prior physical harm" and found that her demeanor evinced
continuing fear of the defendant. The evidence credited by the
judge supported her conclusion that further extension of the
209A order was necessary to protect the plaintiff from the
6 effects of the past physical harm. 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, 85 Mass. App. Ct. at 375 (judge properly
considered totality of circumstances of relationship including
ongoing Probate and Family Court litigation and "hostility
likely engendered thereby").
The defendant argues that the judge failed to consider
that, since entry of the 209A order, he has not violated the
order, has not acted violently toward the plaintiff, and has not
harassed the plaintiff using any communication. In addition,
the defendant contends that he has traveled to Massachusetts for
parenting time with his children and has interacted with the
plaintiff during exchanges of the children without any issue.
The defendant's reliance on his conduct since the issuance
of the 209A order is misplaced; the plaintiff is not required to
show that additional abuse has occurred. See G. L. c. 209A, § 3
("The fact that abuse has not occurred during the pendency of an
order shall not, in itself, constitute sufficient ground for
denying or failing to extend the order, of allowing an order to
expire or be vacated, or for refusing to issue a new order").
In light of the judge's consideration of the circumstances, we
discern no abuse of discretion or other error of law in the
judge's decision to extend the 209A order for five years.
7 To the extent that the defendant seeks relief from the
firearm surrender order, the judge was constrained by G. L.
c. 209A, § 3C, which requires that when an extension of an abuse
prevention order is issued, the firearm "suspension and
surrender order . . . shall continue so long as the restraining
order to which it relates is in effect." There was no error.
Order dated June 5, 2024, extending abuse prevention order, affirmed.
By the Court (Vuono, Massing & Allen, JJ.6),
Clerk
Entered: October 3, 2025.
6 The panelists are listed in order of seniority.