K.D.F. v. D.M.F.

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

25-P-747

K.D.F.

vs.

D.M.F.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, K.D.F., is the former wife of the defendant,

D.M.F. On April 9, 2025, K.D.F. filed a complaint seeking an ex

parte abuse prevention order pursuant to G. L. c. 209A

(restraining order) against D.M.F. The complaint alleged that

K.D.F. was in fear of imminent serious physical harm. A judge

of the District Court issued the order which required, among

other things, that the defendant not abuse, contact or come

within ten yards of K.D.F., and to "refrain from engaging in any

coercively controlling behavior as defined in [G. L.] c. 209A,

§ 1." 1 At a subsequent two-party hearing held on April 22, 2025,

1On September 18, 2024, an amendment to the Abuse Prevention Act expanded the definition of abuse to include "coercive control." See G. L. c. 209A, § 1 (d) (a), as amended a different judge found that a one year extension of the order

was necessary to protect K.D.F. from the likelihood of abuse due

to D.M.F.'s "coercive control." On appeal, D.M.F. claims that

K.D.F. failed to meet her burden of proving abuse based on a

reasonable fear of imminent serious physical harm or coercive

control. D.M.F. also claims that the judge violated his right

to due process by (1) depriving him of a meaningful opportunity

to be heard before extending the order, (2) shifting the burden

of proof to him, and (3) exhibiting a predisposition in favor of

K.D.F. He further argues that he did not have proper notice

that K.D.F. was seeking a restraining order based on coercive

control. For the reasons that follow, we conclude that K.D.F.'s

testimony, which the judge specifically credited, established

that she was reasonably in fear of imminent serious physical

harm and the restraining order, therefore, was properly

extended. We further conclude that D.M.F.'s due process rights

were not violated.

Background. Both parties appeared and were represented by

counsel at the extension hearing. Each testified and provided

through St. 2024, c. 118, § 4 (2024 amendment). As relevant here and in pertinent part, coercive control is defined as "a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member that causes that family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy." Id.

2 different versions of events. The judge did not issue written

findings, although as we have already noted, she did state that

she found K.D.F. credible. Accordingly, we recite the evidence

based on K.D.F.'s version of events.

The parties had been married for twelve years when K.D.F.

filed for divorce in November 2024. The two agreed to co-parent

their children pursuant to a negotiated "nesting agreement"

under which they would take turns staying with the children in

the marital home. Just before the agreement was set to begin,

K.D.F. filed the complaint underlying this appeal. At the two-

party hearing, K.D.F. testified that D.M.F.'s aggression and

intimidation had escalated from the time she filed for divorce

in November. She explained that D.M.F. had a history of

depression and alcoholism and had been prescribed anti-

depressants and Antabuse by his physician but he stopped taking

the medications during the prior year. She recounted that one

time in January 2023, D.M.F. slapped their two-year-old son in

the face and later said that he could not promise it would not

happen again because he could not control his anger. A few

weeks before divorce proceedings began, he expressed suicidal

ideation and also drove the children when he was drinking.

Following the initiation of divorce proceedings, D.M.F.'s

consumption of alcohol increased as did his erratic behavior and

D.M.F. also became increasingly angrier. K.D.F. pointed to a

3 number of recent incidents which caused her to be fearful of her

physical safety. In December 2024, she and D.M.F. had a

disagreement over signing a release to permit D.M.F. to take the

children to Brazil. D.M.F. became furious over the situation,

confronted K.D.F., and "blocked" her in the closet by standing

in the doorway. Then, in late January, K.D.F. asked D.M.F. not

to drink when he had the children with him and D.M.F. became

irate. He stood inches away from K.D.F., slammed his fist on

the kitchen counter next to K.D.F., and said: "if you poke the

bear, I'm going to come get you." About two weeks later, after

K.D.F. had informed her attorney about the defendant's increased

drinking, D.M.F. again became angry. He "corner[ed]" K.D.F.,

slammed his fist next to her, and threatened that he would

attempt to obtain fifty-fifty custody of the children. At

around the same time, D.M.F., who was taking the children to

Atlanta to visit family, became upset upon learning that K.D.F.,

who was going to Atlanta to visit friends, would be taking the

same flight. While K.D.F. was sitting on the couch working,

D.M.F. approached her and punched the back of the couch hard

enough to "shake[] the whole couch." A few days later, D.M.F.

confronted K.D.F. over her insistence on a "Soberlink"

requirement in the proposed divorce settlement. On this

occasion, D.M.F. blocked K.D.F. in the bathroom by standing in

the door with his hands on the door frame and indicated he would

4 fight the requirement costing K.D.F. "hundreds of thousands of

dollars." Lastly, about a week before K.D.F. obtained the ex

parte restraining order, D.M.F., who continued to be angry about

the divorce, threatened K.D.F. stating, among other things,

"you're going to get what you deserve," "I'm going to come for

you," and "karma's going to get you." D.M.F. was in K.D.F.'s

"face" and followed her throughout the house as she attempted to

get away from him. K.D.F. testified that she had an "immediate

fear for my life" and had never been "so terrified." K.D.F.

took refuge near their au pair's bedroom and slept in the room

of one of their sons until D.M.F. left the home a few days

later.

In extending the order, the judge said "It's about

credibility . . . [and] I believe the plaintiff. I'm extending

the order based on that."

Discussion. We review the extension of a 209A order "for

an abuse of discretion or other error of law" (quotation and

citation omitted). Vanna V. v. Tanner T., 102 Mass. App. Ct.

549, 552 (2023). In conducting our review, we accord the

"utmost deference" to "the credibility determinations made by

the judge who heard the testimony of the parties . . . [and]

observed their demeanor" (citation omitted). Noelle N. v.

Frasier F., 97 Mass. App. Ct. 660, 664 (2020).

5 As both parties acknowledge, K.D.F. bore the burden to

prove by a preponderance of the evidence that she was suffering

from abuse as defined in G. L. c. 209A, § 1, and that "an

extension of the order is necessary to protect her from the

likelihood of 'abuse.'" Vera V. v. Seymour S., 98 Mass. App.

Ct. 315, 317 (2020), quoting Iamele v. Asselin, 444 Mass. 734,

739 (2005).

The statute defines abuse to include "attempting to cause

or causing physical harm," "placing another in fear of imminent

serious physical harm," and "coercive control." G. L. c. 209A,

§ 1. 2 Here, K.D.F. checked the box on a preprinted form that

specified D.M.F. "placed me in fear of imminent physical harm."

However, ultimately, apparently in part due to the inclusion in

the ex parte order that D.M.F. refrain from engaging in coercive

behavior and in part due to the judge's interjection at the two-

party hearing that coercive control was evident, K.D.F. argued

that she was in need of protection both because she was in fear

of imminent physical harm and because D.M.F. had subjected her

to coercive control.

We first address D.M.F.'s claim that the judge erroneously

relied on "emotional abuse" because that term is not included

within the statute's definition of coercive and controlling

2 See footnote 1.

6 behavior. We agree that the statute does not explicitly define

coercive control as including "emotional abuse." 3 However, given

our conclusion that the evidence credited by the judge was

sufficient to prove that K.D.F.'s fear of imminent serious

physical harm was objectively reasonable, we need not decide

whether and in what circumstances evidence of "emotional abuse"

may establish coercive control. In addition, we need not

decide, as D.M.F. urges, whether there was insufficient evidence

that D.M.F. engaged in a pattern of behavior that included any

of the conduct described in G. L. c. 209A, § 1 (a) (i)-(ix) or a

single act of conduct described in § 1 (b).

Regarding the sufficiency of the evidence to establish

abuse based on fear of imminent serious physical harm, D.M.F.

argues that K.D.F. failed to meet her burden of proof because

there was no evidence that he ever struck K.D.F. or was

otherwise physically violent toward her. 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." Constance C. v.

Raymond R., 101 Mass. App. Ct. 390, 395 (2022), quoting

Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020).

3 We note however that the list of enumerated examples of coercive control are intended to be illustrative and not exhaustive. See G. L. c. 209A, § 1.

7 Rather, to determine whether a plaintiff's apprehension of

anticipated physical force is reasonable, we look at "the

actions and words of the defendant in light of the attendant

circumstances." Constance C., supra at 395, quoting Ginsberg v.

Blacker, 67 Mass. App. Ct. 139, 143 (2006).

In this case, the circumstances, which include the

defendant's increasing volatile behavior, and escalating anger

towards K.D.F., were such that a reasonable person would be

warranted in fearing for her personal safety. See Constance C.,

supra at 395-396 (plaintiff's description of defendant's

escalating anger and threats to commit suicide supported

issuance of abuse prevention order); Noelle N. v. Frasier F., 97

Mass. App. Ct. 660, 665 (2020) ("erratic and unstable behavior,

in the context of an escalating and emotional argument" may

create reasonable fear that "'force might be used'" [citation

omitted]); Ginsburg, 67 Mass. App. Ct. at 145-146 (husband's

increasing anger and intimidating behavior sufficient to justify

ex-wife's objectively reasonable fear of imminent serious

physical harm). In sum, K.D.F.'s affidavit and testimony, which

the judge credited, required a finding that D.M.F. placed K.D.F.

in reasonable fear of imminent serious physical harm. 4 See

4 Furthermore, as the judge found K.D.F. to be credible in all respects, and her testimony was sufficient to establish her entitlement to an extension based on a reasonable fear of imminent physical harm, there is no need to remand the case for

8 Nan N. v. Rex R., 106 Mass. App. Ct. 601, 609-611 (2026) (in

light of incidents of husband's physically imposing conduct,

blocking movement, and pushing plaintiff, even if judge erred

regarding coercive control prong of abuse definition, "extension

order was independently supported on the ground that the wife

suffered abuse through reasonable fear of imminent serious

physical harm").

Given our conclusion, D.M.F.'s remaining arguments do not

require much discussion. It matters not that the evidence of

coercive control was insufficient or that D.M.F. allegedly had

no notice that K.D.F. would rely on coercive control to meet her

burden. While it is true, as D.M.F. claims, the judge

prematurely expressed her intention to extend the order, she

recognized her mistake and proceeded to hear D.M.F.'s testimony.

Lastly, we are not persuaded that the judge improperly shifted

the burden of proof to D.M.F. or that the fact that the judge

exhibited some unwarranted impatience toward D.M.F. violated his

right to due process. 5

additional findings or further consideration. See Vera V., 98 Mass. App. Ct. at 318, quoting G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (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"). Contrast Iamele v. Asselin, 444 Mass. 734, 741 (2005) (noting that evidence was adequate to justify extension of order but remanding because judge's credibility determinations were not clear).

5 K.D.F.'s motion for appellate attorney's fees is denied.

9 Order dated April 22, 2025, extending abuse prevention order affirmed.

By the Court (Vuono, Ditkoff & D'Angelo, JJ. 6),

Clerk

Entered: June 3, 2026.

6 The panelists are listed in order of seniority.