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-16
L.R.
vs.
K.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, K.L., appeals from an abuse prevention order
issued pursuant to G. L. c. 209A, § 3 (c. 209A order). He
argues that the District Court judge abused her discretion in
granting the order as there was insufficient evidence to
establish that the plaintiff, L.R., had a reasonable fear of
imminent serious physical harm. He also argues that the judge
improperly relied on a seven year old video recording introduced
by the plaintiff and should not have considered the parties'
relative size and strength in reaching her conclusion. We
affirm.
Background. "We recite the facts based on the record
before us." See E.C.O. v. Compton, 464 Mass. 558, 559 (2013). The plaintiff and the defendant were in a dating relationship,
which continued for several years after the birth of their
child, who was five years old when the plaintiff filed a
complaint for protection and obtained an ex parte order
effective on November 7, 2024. See G. L. c. 209A, § 4. In
support of her complaint, the plaintiff provided an affidavit
averring that the defendant "stalks" her by placing global
position system (GPS) trackers in her car, watching her home
from a neighbor's yard, and hacking her cell phone to see her
location. The plaintiff also averred that on one occasion while
the defendant was caring for their child at her home, he went
through her drawers and paperwork and that he had stalked her
boyfriend and "threatened to ruin his life."
A hearing to determine whether the ex parte order should be
extended was held before a second judge on November 21, 2024.
Both parties were present and self-represented. The plaintiff
testified that she sought an abuse prevention order because the
defendant was stalking her. She explained that the defendant,
who lived less than one mile away on the same street, repeatedly
drove by her house at night, tracked her location, and followed
her with his car when she was out in public. The plaintiff also
testified that the defendant had interfered with her personal
life. On November 4, 2024, the defendant contacted the
plaintiff's boyfriend's wife and told her that the plaintiff was
2 involved with her husband. According to the plaintiff, this
conduct reflected a pattern of controlling behavior that the
defendant had exhibited for several years. To substantiate her
claim, the plaintiff introduced a video recording that depicted
an incident which had occurred approximately seven years
earlier.1 The judge viewed the video recording and made the
following comments about the contents of the recording. The two
appear to be in a small space. The defendant looks extremely
angry, the plaintiff looks fearful and is crying. The plaintiff
also testified that the same night the video recording was
taken, the defendant had choked her, "toss[ed] her around," and
pointed a loaded firearm at her. In response to a question
posed by the judge, the plaintiff stated that she feared for her
safety and was concerned the defendant could "snap" again.
The defendant testified that the night the video recording
was taken, he was drunk, suicidal, and did not remember pointing
a firearm at the plaintiff. He also testified that he no longer
owned a gun and had obtained therapy, after which his mental
health had improved. The defendant then testified that he and
the plaintiff had maintained a good coparenting relationship
despite the end of their romantic one. He testified that he had
continued to attend holiday gatherings with the plaintiff and
1 The record before us does not contain the video recording, but we note that the defendant does not dispute its contents.
3 her family over the past few years and that, just recently, he
and the plaintiff had exchanged text messages and started to
make plans to celebrate the holidays together. The defendant
denied hacking the plaintiff's cell phone, tracking her
location, and watching her from a neighbor's yard, but
acknowledged that both he and the plaintiff had placed GPS
tracking devices on each other's cars. The defendant also
admitted that he had rummaged through the plaintiff's drawers
while he was at her home caring for their child and that he had
contacted the plaintiff's boyfriend's wife.
At the conclusion of the hearing, the judge specifically
credited the plaintiff's testimony about the defendant's history
of physical abuse and her current fear of him before ruling that
the abuse prevention order would remain in effect for one year,
until November 20, 2025. The judge ordered the defendant to
stay away from the plaintiff's residence and stay at least 100
yards away from the plaintiff but allowed the defendant to be
within three yards of the plaintiff when picking up or dropping
off their child and to maintain contact via email so long as the
defendant was not abusive.
Discussion. The defendant first argues that the evidence
did not support the issuance of an abuse prevention order. We
review the issuance of such an order for an abuse of discretion
or other error of law. E.C.O., 464 Mass. at 562. "[A] judge's
4 discretionary decision constitutes an abuse of discretion where
[the 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" (quotations and citations omitted).
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
To obtain such an order, the plaintiff must satisfy both a
subjective and an objective standard: that she was currently in
fear of imminent serious physical harm, and that her fear was
reasonable. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct.
184, 186 (2020). In evaluating whether the plaintiff has met
this burden, the judge "must consider the totality of the
circumstances of the parties' relationship." Iamele v. Asselin,
444 Mass. 734, 740 (2005). In addition, where, as here, the
judge has not made specific factual findings on the record, we
consider whether the judge could find, by a preponderance of the
evidence, together with all permissible inferences, that the
defendant placed the plaintiff in fear of imminent serious
physical harm. See Frizado v. Frizado, 420 Mass. 592, 597
(1995); G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).
We discern no abuse of discretion. The plaintiff's
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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
25-P-16
L.R.
vs.
K.L.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, K.L., appeals from an abuse prevention order
issued pursuant to G. L. c. 209A, § 3 (c. 209A order). He
argues that the District Court judge abused her discretion in
granting the order as there was insufficient evidence to
establish that the plaintiff, L.R., had a reasonable fear of
imminent serious physical harm. He also argues that the judge
improperly relied on a seven year old video recording introduced
by the plaintiff and should not have considered the parties'
relative size and strength in reaching her conclusion. We
affirm.
Background. "We recite the facts based on the record
before us." See E.C.O. v. Compton, 464 Mass. 558, 559 (2013). The plaintiff and the defendant were in a dating relationship,
which continued for several years after the birth of their
child, who was five years old when the plaintiff filed a
complaint for protection and obtained an ex parte order
effective on November 7, 2024. See G. L. c. 209A, § 4. In
support of her complaint, the plaintiff provided an affidavit
averring that the defendant "stalks" her by placing global
position system (GPS) trackers in her car, watching her home
from a neighbor's yard, and hacking her cell phone to see her
location. The plaintiff also averred that on one occasion while
the defendant was caring for their child at her home, he went
through her drawers and paperwork and that he had stalked her
boyfriend and "threatened to ruin his life."
A hearing to determine whether the ex parte order should be
extended was held before a second judge on November 21, 2024.
Both parties were present and self-represented. The plaintiff
testified that she sought an abuse prevention order because the
defendant was stalking her. She explained that the defendant,
who lived less than one mile away on the same street, repeatedly
drove by her house at night, tracked her location, and followed
her with his car when she was out in public. The plaintiff also
testified that the defendant had interfered with her personal
life. On November 4, 2024, the defendant contacted the
plaintiff's boyfriend's wife and told her that the plaintiff was
2 involved with her husband. According to the plaintiff, this
conduct reflected a pattern of controlling behavior that the
defendant had exhibited for several years. To substantiate her
claim, the plaintiff introduced a video recording that depicted
an incident which had occurred approximately seven years
earlier.1 The judge viewed the video recording and made the
following comments about the contents of the recording. The two
appear to be in a small space. The defendant looks extremely
angry, the plaintiff looks fearful and is crying. The plaintiff
also testified that the same night the video recording was
taken, the defendant had choked her, "toss[ed] her around," and
pointed a loaded firearm at her. In response to a question
posed by the judge, the plaintiff stated that she feared for her
safety and was concerned the defendant could "snap" again.
The defendant testified that the night the video recording
was taken, he was drunk, suicidal, and did not remember pointing
a firearm at the plaintiff. He also testified that he no longer
owned a gun and had obtained therapy, after which his mental
health had improved. The defendant then testified that he and
the plaintiff had maintained a good coparenting relationship
despite the end of their romantic one. He testified that he had
continued to attend holiday gatherings with the plaintiff and
1 The record before us does not contain the video recording, but we note that the defendant does not dispute its contents.
3 her family over the past few years and that, just recently, he
and the plaintiff had exchanged text messages and started to
make plans to celebrate the holidays together. The defendant
denied hacking the plaintiff's cell phone, tracking her
location, and watching her from a neighbor's yard, but
acknowledged that both he and the plaintiff had placed GPS
tracking devices on each other's cars. The defendant also
admitted that he had rummaged through the plaintiff's drawers
while he was at her home caring for their child and that he had
contacted the plaintiff's boyfriend's wife.
At the conclusion of the hearing, the judge specifically
credited the plaintiff's testimony about the defendant's history
of physical abuse and her current fear of him before ruling that
the abuse prevention order would remain in effect for one year,
until November 20, 2025. The judge ordered the defendant to
stay away from the plaintiff's residence and stay at least 100
yards away from the plaintiff but allowed the defendant to be
within three yards of the plaintiff when picking up or dropping
off their child and to maintain contact via email so long as the
defendant was not abusive.
Discussion. The defendant first argues that the evidence
did not support the issuance of an abuse prevention order. We
review the issuance of such an order for an abuse of discretion
or other error of law. E.C.O., 464 Mass. at 562. "[A] judge's
4 discretionary decision constitutes an abuse of discretion where
[the 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" (quotations and citations omitted).
L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
To obtain such an order, the plaintiff must satisfy both a
subjective and an objective standard: that she was currently in
fear of imminent serious physical harm, and that her fear was
reasonable. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct.
184, 186 (2020). In evaluating whether the plaintiff has met
this burden, the judge "must consider the totality of the
circumstances of the parties' relationship." Iamele v. Asselin,
444 Mass. 734, 740 (2005). In addition, where, as here, the
judge has not made specific factual findings on the record, we
consider whether the judge could find, by a preponderance of the
evidence, together with all permissible inferences, that the
defendant placed the plaintiff in fear of imminent serious
physical harm. See Frizado v. Frizado, 420 Mass. 592, 597
(1995); G.B. v. C.A., 94 Mass. App. Ct. 389, 396 (2018).
We discern no abuse of discretion. The plaintiff's
affidavit and testimony at the hearing established significant
prior physical and verbal abuse perpetrated by the defendant.
Moreover, the defendant did not deny that some of the abusive
5 conduct to which the plaintiff testified had occurred. Given
these circumstances, it was within the judge's discretion to
credit the plaintiff's testimony and to conclude that the
defendant's conduct caused the plaintiff to fear imminent
serious physical harm. See Ginsberg v. Blacker, 67 Mass. App.
Ct. 139, 140 n.3 (2006) ("We accord the credibility
determinations of the judge who 'heard the testimony of the
parties . . . [and] observed their demeanor,' the utmost
deference" [citation omitted]).
Next, the defendant asserts that the judge erred by relying
on the video recording because it concerned an incident that
occurred seven years earlier. We disagree. "[I]n evaluating
whether an initial 209A order or its extension should issue, the
judge must examine the words and conduct in the context of the
entire history of the parties' hostile relationship" (quotation
and citation omitted). G.B. v. C.A., 94 Mass. App. Ct. 389,
393-394 (2018). Here, the judge acknowledged that the video
recording was taken years ago but concluded nevertheless that it
provided a basis for the plaintiff's current fear of the
defendant. Accordingly, we discern no error.
The defendant's final argument, that the judge improperly
considered his biological sex and physical stature, is
6 unavailing for the same reason.2 Whether the plaintiff's fear is
reasonable depends on the totality of the circumstances, of
which, relative size and strength are a part. Moreover, the
judge expressly acknowledged that "smaller women can inflict
great physical damage on large men," demonstrating a "thoughtful
and reasoned consideration" of the evidence. Callahan v.
Callahan, 85 Mass. App. Ct. 369, 375 (2014). In any event, even
if we were to assume that the defendant is correct, there was
sufficient additional evidence to support the order.3
Order entered November 21, 2024, affirmed.
By the Court (Vuono, Desmond & Toone, JJ.4),
Clerk
Entered: November 24, 2025.
2 The judge said, "I would note here, parenthetically, the relative size difference, I -- I would say, certainly, sir, you are tall, broad, seem to be a very large strong man. I think you'd probably agree with that characterization. And -- and [the plaintiff] is much smaller."
3 In his brief, the defendant asks us to consider evidence that was not before the judge. He correctly acknowledges that we may not do so, and we do not. See Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019).
4 The panelists are listed in order of seniority.