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-1179
M.A.D.
vs.
M.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order entered on July 19,
2024, extending by two years a G. L. c. 209A abuse prevention
order (order) issued against him in favor of the plaintiff. We
affirm.
Background.1 In 2021, the day after the plaintiff called
the police to the parties' formerly shared home because the
1We derive certain background facts from the affidavit and exhibits submitted in connection with the initial order issued in 2021. The defendant included in the record appendix the transcript of the 2021 two-party hearing, but argues that we should not consider it because it was not furnished to the judge who extended the order in 2024. For the purposes of this appeal, we assume that the judge in 2024 did not rely on the 2021 transcript. See Commonwealth v. O'Brien, 423 Mass. 841, 848-849 (1996), S.C., 432 Mass. 578 (2000) ("A judge may not take judicial notice of facts or evidence brought out at a prior defendant was behaving erratically, the plaintiff applied for an
abuse prevention order under G. L. c. 209A. The affidavit in
support of her complaint stated the defendant had "been
excessively drinking which further escalated during COVID," had
"total control" of the parties' finances, and had placed a GPS
tracker on the plaintiff's car and cell phone. She also stated
she had filed for divorce the same day. On the same date as the
ex parte hearing, a District Court judge wrote at the bottom of
the plaintiff's affidavit, "Per P -- D sexually aggressive," and
signed and dated it. The judge issued the order.
Two weeks later, after a hearing at which both parties were
present, the judge extended the order for one year. In 2022,
the order was extended for two years, with slightly modified
conditions, by the agreement of the parties.
By the time of the next extension hearing in 2024, before a
different District Court judge, the parties' divorce had been
finalized, although it appears that some open issues remained.
The parties lived and worked in different towns. Since 2021,
one child had moved out of state and another attended college,
returning to the plaintiff's home during school breaks. The
defendant had been diagnosed with a chronic liver condition and
hearing that are not also admitted in evidence at the current hearing").
2 prescribed a medication that discouraged the consumption of
alcohol, and he was seeing a therapist to manage his depression.
At the 2024 hearing, the plaintiff testified about the
events that led to the issuance of the initial order, including
those described in her affidavit and in the police report
regarding the 2021 incident at their home. She also testified
that the defendant had coerced her into sex "on a regular
basis." Concluding that the plaintiff still had fear stemming
from abuse during the parties' "long problem marriage," the
second judge extended the order for another two years, to expire
on July 20, 2026. The defendant appeals from this order.
Discussion. The defendant argues the second judge failed
to consider the significant changes in the parties' relationship
since the original order was issued and consequently extended
the order in error. We review the extension of a c. 209A order
"for an abuse of discretion or other error of law." E.C.O. v.
Compton, 464 Mass. 558, 562 (2013). "We therefore ask whether
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 omitted).
L.L. v. M.M., 95 Mass. App. Ct. 18, 22 (2019), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
When determining whether an extension is warranted, a judge
should consider "the totality of the conditions that exist at
3 the time that the plaintiff seeks the extension, viewed in the
light of the initial abuse prevention order." Iamele v.
Asselin, 444 Mass. 734, 741 (2005). "No presumption arises from
the initial order; 'it is the plaintiff's burden to establish
that the facts that exist at the time extension of the order is
sought justify relief.'" MacDonald v. Caruso, 467 Mass. 382,
386 (2014), quoting Smith v. Jones, 67 Mass. App. Ct. 129, 133-
134 (2006). The standard for granting an extension "is whether
the plaintiff has shown by a preponderance of the evidence that
an extension of the order is necessary to protect her from the
likelihood of 'abuse' as defined in G. L. c. 209A, § 1."
Iamele, supra at 739.
Chapter 209A defines "abuse" as "the occurrence of any of
the following acts between family or household members:
(a) attempting to cause or causing physical harm; (b) placing
another in fear of imminent serious physical harm; (c) causing
another to engage involuntarily in sexual relations by force,
threat or duress; [or] (d) coercive control." G. L. c. 209A,
§ 1 "abuse." A plaintiff seeking an extension on the basis of
fear of physical abuse under § 1 clause (b) "must show that he
or she is currently in fear of imminent serious physical harm,
as well as that the fear is reasonable" (citation omitted).
Iamele, 444 Mass. at 737. However, when seeking protection from
the effects of actual past abuse as defined in § 1 clauses
4 (a) or (c), the plaintiff "does not need to prove a reasonable
fear of imminent future physical [or sexual] abuse to obtain
relief." Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-
187 (2020). See Iamele, supra at 740 n.3 ("If the plaintiff
were suffering from attempted or actual physical abuse . . . or
involuntary sexual relations . . . there is no question that an
extension should be granted"). "Rather, when a plaintiff has
suffered [such] abuse, a judge may reasonably conclude that a
c. 209A order is necessary 'because the damage resulting from
that . . . harm affects the victim even when further physical
attack is not reasonably imminent.'" Yahna Y., supra at 187,
quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).
The defendant contends the trial judge extended the order
without considering evidence of "changed circumstances,"
including that the parties now lead separate lives, that the
defendant has largely quit drinking, and that he sees a
therapist. These circumstances, he contends, render the
plaintiff's fears of abuse objectively unreasonable. But this
argument is unavailing because the judge credited 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-1179
M.A.D.
vs.
M.D.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order entered on July 19,
2024, extending by two years a G. L. c. 209A abuse prevention
order (order) issued against him in favor of the plaintiff. We
affirm.
Background.1 In 2021, the day after the plaintiff called
the police to the parties' formerly shared home because the
1We derive certain background facts from the affidavit and exhibits submitted in connection with the initial order issued in 2021. The defendant included in the record appendix the transcript of the 2021 two-party hearing, but argues that we should not consider it because it was not furnished to the judge who extended the order in 2024. For the purposes of this appeal, we assume that the judge in 2024 did not rely on the 2021 transcript. See Commonwealth v. O'Brien, 423 Mass. 841, 848-849 (1996), S.C., 432 Mass. 578 (2000) ("A judge may not take judicial notice of facts or evidence brought out at a prior defendant was behaving erratically, the plaintiff applied for an
abuse prevention order under G. L. c. 209A. The affidavit in
support of her complaint stated the defendant had "been
excessively drinking which further escalated during COVID," had
"total control" of the parties' finances, and had placed a GPS
tracker on the plaintiff's car and cell phone. She also stated
she had filed for divorce the same day. On the same date as the
ex parte hearing, a District Court judge wrote at the bottom of
the plaintiff's affidavit, "Per P -- D sexually aggressive," and
signed and dated it. The judge issued the order.
Two weeks later, after a hearing at which both parties were
present, the judge extended the order for one year. In 2022,
the order was extended for two years, with slightly modified
conditions, by the agreement of the parties.
By the time of the next extension hearing in 2024, before a
different District Court judge, the parties' divorce had been
finalized, although it appears that some open issues remained.
The parties lived and worked in different towns. Since 2021,
one child had moved out of state and another attended college,
returning to the plaintiff's home during school breaks. The
defendant had been diagnosed with a chronic liver condition and
hearing that are not also admitted in evidence at the current hearing").
2 prescribed a medication that discouraged the consumption of
alcohol, and he was seeing a therapist to manage his depression.
At the 2024 hearing, the plaintiff testified about the
events that led to the issuance of the initial order, including
those described in her affidavit and in the police report
regarding the 2021 incident at their home. She also testified
that the defendant had coerced her into sex "on a regular
basis." Concluding that the plaintiff still had fear stemming
from abuse during the parties' "long problem marriage," the
second judge extended the order for another two years, to expire
on July 20, 2026. The defendant appeals from this order.
Discussion. The defendant argues the second judge failed
to consider the significant changes in the parties' relationship
since the original order was issued and consequently extended
the order in error. We review the extension of a c. 209A order
"for an abuse of discretion or other error of law." E.C.O. v.
Compton, 464 Mass. 558, 562 (2013). "We therefore ask whether
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 omitted).
L.L. v. M.M., 95 Mass. App. Ct. 18, 22 (2019), quoting L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
When determining whether an extension is warranted, a judge
should consider "the totality of the conditions that exist at
3 the time that the plaintiff seeks the extension, viewed in the
light of the initial abuse prevention order." Iamele v.
Asselin, 444 Mass. 734, 741 (2005). "No presumption arises from
the initial order; 'it is the plaintiff's burden to establish
that the facts that exist at the time extension of the order is
sought justify relief.'" MacDonald v. Caruso, 467 Mass. 382,
386 (2014), quoting Smith v. Jones, 67 Mass. App. Ct. 129, 133-
134 (2006). The standard for granting an extension "is whether
the plaintiff has shown by a preponderance of the evidence that
an extension of the order is necessary to protect her from the
likelihood of 'abuse' as defined in G. L. c. 209A, § 1."
Iamele, supra at 739.
Chapter 209A defines "abuse" as "the occurrence of any of
the following acts between family or household members:
(a) attempting to cause or causing physical harm; (b) placing
another in fear of imminent serious physical harm; (c) causing
another to engage involuntarily in sexual relations by force,
threat or duress; [or] (d) coercive control." G. L. c. 209A,
§ 1 "abuse." A plaintiff seeking an extension on the basis of
fear of physical abuse under § 1 clause (b) "must show that he
or she is currently in fear of imminent serious physical harm,
as well as that the fear is reasonable" (citation omitted).
Iamele, 444 Mass. at 737. However, when seeking protection from
the effects of actual past abuse as defined in § 1 clauses
4 (a) or (c), the plaintiff "does not need to prove a reasonable
fear of imminent future physical [or sexual] abuse to obtain
relief." Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-
187 (2020). See Iamele, supra at 740 n.3 ("If the plaintiff
were suffering from attempted or actual physical abuse . . . or
involuntary sexual relations . . . there is no question that an
extension should be granted"). "Rather, when a plaintiff has
suffered [such] abuse, a judge may reasonably conclude that a
c. 209A order is necessary 'because the damage resulting from
that . . . harm affects the victim even when further physical
attack is not reasonably imminent.'" Yahna Y., supra at 187,
quoting Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014).
The defendant contends the trial judge extended the order
without considering evidence of "changed circumstances,"
including that the parties now lead separate lives, that the
defendant has largely quit drinking, and that he sees a
therapist. These circumstances, he contends, render the
plaintiff's fears of abuse objectively unreasonable. But this
argument is unavailing because the judge credited the
plaintiff's uncontested testimony that the defendant forced her
into sexual intercourse.2 As a result of this finding, the
2 Contrary to the defendant's contention at oral argument, it is of no consequence that the defendant was not prosecuted for rape or sexual assault. See, e.g., Yahna Y., 97 Mass. App.
5 plaintiff did not have to prove a reasonable fear of imminent
harm; it was enough that the plaintiff was still suffering from
the effects of past abuse. See Yahna Y., 97 Mass. App. Ct. at
186-187.
The judge did not err or abuse her discretion in finding
the plaintiff continued to suffer harm from the past abuse at
the time of the extension hearing, justifying an extension of
the order. In reviewing the totality of the circumstances, it
is critical to examine not only the parties' recent behavior,
but also the events leading up to the issuance of the initial
order. See Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999)
(concluding extension of c. 209A order was proper "in the
context of the entire history of the parties' hostile
relationship"). The defendant's positive progress does not
erase the fact that the plaintiff had been subjected to forced
sexual intercourse, as well as intimidation, surveillance, and
other aggressive and unstable behavior during the parties'
marriage. The judge credited the plaintiff's testimony that she
remains in fear based on the parties' "long history," including
the sexual abuse. The judge was in the best position to assess
the plaintiff's credibility on this point, see Yahna Y., 97
Ct. at 187 (affirming extension of c. 209A order based on plaintiff's testimony regarding past sexual abuse).
6 Mass. App. Ct. at 185, and the judge could reasonably find that
the plaintiff was still feeling the effects of the abuse that
supported the issuance of the initial order. The question
before the judge was not when this fear should reasonably
dissipate; it is enough that, at the time of the extension
hearing, the judge found that the plaintiff still felt it. The
judge acted within her discretion in extending the order on that
basis.
Order entered July 19, 2024, affirmed.
By the Court (Massing, Hand & Allen, JJ.3),
Clerk
Entered: December 19, 2025.
3 The panelists are listed in order of seniority.