K.Z. v. N.F.

• Court: Massachusetts Appeals Court
• Decided: April 14, 2023
• Docket: 22-P-0774
• Status: Unpublished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

22-P-774

K.Z.

vs.

N.F.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The parties are college students who, along with three

other tenants, shared an apartment in Brookline. They did not

get along. K.Z. had many complaints about N.F.'s conduct, which

K.Z. claims to have found threatening. To address his living

situation, K.Z. petitioned for an abuse prevention order

pursuant to G. L. c. 209A against N.F. After an initial hearing

at which both parties appeared, a District Court judge issued an

order requiring N.F. to stay away from K.Z. and from the

apartment and scheduled a second two-party hearing twelve days

later. At the follow-up hearing, N.F. reported that the

landlord was allowing her to break her lease and that she had no

intention of returning to the apartment. Nevertheless, at

K.Z.'s request, the judge extended the 209A order for a full

year. On N.F.'s appeal, we vacate both orders. Background. A major source of conflict between the

housemates was that N.F. regularly allowed her boyfriend to stay

over, in contravention of the lease term that limited occupancy

to listed tenants and family. K.Z. also alleged that N.F. did

many other things that violated the lease's "no disturbance"

policy. For example, he alleged that N.F. once broke his

kitchen grater, but would not admit it. He also alleged that

she hid other kitchenware or stored it in unhygienic locations.

Another prominent complaint was that N.F. intentionally bounced

a hard ball against K.Z.'s bedroom door to annoy him, and that,

when confronted about this, she claimed that she was merely

playing with one or more of the apartment's multiple cats.

K.Z., who is Asian, additionally claimed that on the same

occasion that he confronted her about the ball, N.F. made fun of

his way of speaking and banged on his bedroom door after he

retreated there.

Discussion. N.F. admits that she and K.Z. did not get

along and that they had at least one verbal dispute in which

expletives were exchanged.1 She otherwise seeks to paint a

1 As an initial matter, there is a question whether G. L. c. 209A applies in the context before us. The statute applies to "household members," though that does not mean it applies to all people who live together. See, e.g., Silva v. Carmel, 468 Mass. 18, 22-23 (2014) (individuals assigned by State agency to live together but who otherwise are not "socially interdependent" and "not voluntarily living together" were not "household members"

2 different picture of the underlying facts, claiming to have been

a good and responsible roommate. To support this picture, N.F.

presented multiple letters of support, including a letter from a

former roommate who had lived with both K.Z. and N.F. Although

the judge did not issue specific findings, she plainly appears

to have credited K.Z.'s version of the events, and we are bound

by her credibility determinations. See Vittone v. Clairmont, 64

Mass. App. Ct. 479, 487 (2005) ("The judge had the parties

before [her] and was in a position to observe their demeanor").

The question remains whether K.Z.'s allegations are legally

sufficient to support the issuance of an abuse prevention order

pursuant to c. 209A. In the circumstances of this case, which

involved no allegations of actual or attempted violence by N.F.

against K.Z. or claims of any sexual contact between them, K.Z.

needed to prove that, viewed objectively, N.F.'s actions or

statements placed him in reasonable fear of "imminent serious

physical harm." G. L. c. 209A, § 1 (definition of "abuse").

See Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009)

("reasonable fear of imminent serious physical harm is to be

determined by an objective standard"). We agree with N.F. that,

as a matter of law, the evidence here did not meet that

standard. Although N.F.'s conduct was no doubt annoying and

for purposes of c. 209A). N.F. has not raised this issue and we therefore do not reach it.

3 perhaps even anxiety provoking, nothing suggests that she was

about to attack K.Z. or otherwise had threatened him with

imminent serious physical harm.2 K.Z's vague expressions that

N.F.'s bad behavior created an atmosphere in which he and the

other roommates "no longer feel safe, no longer feel comfortable

and no longer enjoy this toxic situation" are not sufficient.

See Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002)

("Generalized apprehension, nervousness, feeling aggravated or

hassled, i.e., psychological distress from vexing but

nonphysical [contact], when there is no threat of imminent

serious physical harm, does not rise to the level of fear of

imminent serious physical harm" [citation omitted]).3

2 K.Z. separately obtained an abuse prevention order against N.F.'s boyfriend. Although the record of that case is not before us, there are some indications that the boyfriend's conduct may have included more overtly threatening behavior. We express no position on the propriety of any orders issued against him.

3 In the parallel context of harassment prevention orders sought pursuant G. L. c. 258E, we have cautioned that when the issuance of the order would serve to evict a tenant, judges should be on guard to "examine the allegations of harassment carefully, to ensure that c. 258E is not being used as a substitute for eviction through a summary process action under G. L. c. 239." C.E.R. v. P.C., 91 Mass. App. Ct. 124, 124-125 (2017). The same admonition applies in the c. 209A context.

4 The abuse prevention orders issued against N.F. are

vacated.

So ordered.

By the Court (Milkey, Massing & Henry, JJ.4),

Clerk

Entered: April 14, 2023.

4 The panelists are listed in order of seniority.