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-137
M.Y.
vs.
T.H.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, T.H., appeals from an abuse prevention order
issued pursuant to G. L. c. 209A, § 3 (209A order). The
defendant argues that the Boston Municipal Court judge abused
his discretion in granting the order as there was insufficient
evidence to prove that the plaintiff, M.Y., had a reasonable
fear of imminent serious physical harm. We affirm.
Background. "We recite the facts based on the record
before us." E.C.O. v. Compton, 464 Mass. 558, 559 (2013). See
Currens v. Board of Assessors of Boston, 370 Mass. 249, 254
(1976) ("An appealing party may not by his brief attempt to
place before an appellate court facts which are not stated or incorporated in the record on appeal").1 The plaintiff and the
defendant were in an "on and off" relationship from November of
2021 through July of 2023. On May 7, 2024, the plaintiff filed
a complaint for protection from abuse and obtained an ex parte
order ordering the defendant to not abuse or contact the
plaintiff, remain one hundred yards away from her, and stay away
from her residence and workplace. The defendant was also
ordered to surrender any firearms. In the affidavit filed in
support of her complaint, the plaintiff averred, among other
things, that the defendant "grabbed . . . and shoved [her],"
repeatedly refused to move out of her apartment, and threatened
suicide if the plaintiff refused to continue to allow him to
live with her.
On May 21, 2024, a second judge conducted a two-party
hearing that addressed the plaintiff's request for an extension
of the 209A order. Both parties testified and each of them
submitted documentary evidence. At the conclusion of the
hearing, the judge extended the 209A order for one year.
Discussion. General Laws c. 209A permits a person
suffering from abuse by a family or household member to obtain
an abuse prevention order. See E.C.O., 464 Mass. at 562. As
1 To the extent that either party asks us to consider evidence that was not before the judge, we decline to do so. See Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019).
2 defined under the statute, "abuse" includes "placing another in
fear of imminent serious physical harm." G. L. c. 209A, § 1.
To meet that standard, the plaintiff must meet the subjective
standard that she has a current fear of imminent serious
physical harm as well as the objective standard that the fear is
reasonable. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct.
184, 186 (2020). In determining whether the plaintiff has met
the burden of proof, the judge "must consider the totality of
the circumstances of the parties' relationship." Iamele v.
Asselin, 444 Mass. 734, 740 (2005). We review the extension of
a restraining order for an abuse of discretion or other error of
law. E.C.O., supra at 561-562. "[A] judge's 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"
(quotation and citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). Importantly, "[w]e accord the
credibility determinations of the judge who heard the testimony
of the parties . . . [and] observed their demeanor . . . the
utmost deference." Noelle N. v. Frasier F., 97 Mass. App. Ct.
660, 664 (2020), quoting Yahna Y., supra at 185. Also, where
the judge has not made specific factual findings on the record,
we consider whether the judge had a reasonable basis to find, by
3 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).
The defendant argues that the plaintiff failed to meet her
burden of proof, in part because the judge improperly relied on
uncorroborated allegations and speculation. However,
independent corroboration is not required. Rather, the judge
could properly rely on the plaintiff's affidavit and testimony.
The affidavit described past physical abuse which resulted
in bruising on the plaintiff's arms, after which she experienced
"panic attacks" and "sobbing fits"; this type of abuse
constitutes a sufficient basis to issue a 209A order. It also
described the defendant's refusal to leave her apartment despite
her multiple requests that he move out, and his months-long
intimidating behavior where the defendant told the plaintiff
that "if [she] kicked him out he'd kill himself." The affidavit
further described an incident where the defendant came to her
apartment unannounced, removed a knife from the console of his
vehicle, and "held [the knife] to his wrist[s] saying he'd slit
them." The plaintiff stated that she feared what the defendant
4 was going to do with the knife while she was in the vehicle with
him.2
At the two-party hearing, the plaintiff testified that
after moving out, the defendant continued to contact her and
appear at her workplace after she had asked him to discontinue
communication. She testified that she was scared that the
defendant "might . . . escalate" and that "he ha[d] shoved [her]
before in the past, so [she'd] . . . be concerned something like
that could happen again." Further, the plaintiff testified that
the defendant visited her workplace the day after he was served
with the ex parte order that required he stay away from the
premises. While the defendant testified that "[t]here was never
anything physical or threatening that occurred in the entire
time period we've known each other," the defendant admitted, in
response to the judge's questions, that he had continued to
communicate with the plaintiff, to appear at her workplace, and
that he felt upset "after going months of respecting her, you
know, giving her space, not showing up [at her workplace] when
The defendant argues that the "court" and the police 2
violated his constitutional rights by not serving him with the plaintiff's affidavit. The defendant cites no authority for this requirement, and we are aware of none.
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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-137
M.Y.
vs.
T.H.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, T.H., appeals from an abuse prevention order
issued pursuant to G. L. c. 209A, § 3 (209A order). The
defendant argues that the Boston Municipal Court judge abused
his discretion in granting the order as there was insufficient
evidence to prove that the plaintiff, M.Y., had a reasonable
fear of imminent serious physical harm. We affirm.
Background. "We recite the facts based on the record
before us." E.C.O. v. Compton, 464 Mass. 558, 559 (2013). See
Currens v. Board of Assessors of Boston, 370 Mass. 249, 254
(1976) ("An appealing party may not by his brief attempt to
place before an appellate court facts which are not stated or incorporated in the record on appeal").1 The plaintiff and the
defendant were in an "on and off" relationship from November of
2021 through July of 2023. On May 7, 2024, the plaintiff filed
a complaint for protection from abuse and obtained an ex parte
order ordering the defendant to not abuse or contact the
plaintiff, remain one hundred yards away from her, and stay away
from her residence and workplace. The defendant was also
ordered to surrender any firearms. In the affidavit filed in
support of her complaint, the plaintiff averred, among other
things, that the defendant "grabbed . . . and shoved [her],"
repeatedly refused to move out of her apartment, and threatened
suicide if the plaintiff refused to continue to allow him to
live with her.
On May 21, 2024, a second judge conducted a two-party
hearing that addressed the plaintiff's request for an extension
of the 209A order. Both parties testified and each of them
submitted documentary evidence. At the conclusion of the
hearing, the judge extended the 209A order for one year.
Discussion. General Laws c. 209A permits a person
suffering from abuse by a family or household member to obtain
an abuse prevention order. See E.C.O., 464 Mass. at 562. As
1 To the extent that either party asks us to consider evidence that was not before the judge, we decline to do so. See Mass. R. A. P. 8, as appearing in 481 Mass. 1611 (2019).
2 defined under the statute, "abuse" includes "placing another in
fear of imminent serious physical harm." G. L. c. 209A, § 1.
To meet that standard, the plaintiff must meet the subjective
standard that she has a current fear of imminent serious
physical harm as well as the objective standard that the fear is
reasonable. See Yahna Y. v. Sylvester S., 97 Mass. App. Ct.
184, 186 (2020). In determining whether the plaintiff has met
the burden of proof, the judge "must consider the totality of
the circumstances of the parties' relationship." Iamele v.
Asselin, 444 Mass. 734, 740 (2005). We review the extension of
a restraining order for an abuse of discretion or other error of
law. E.C.O., supra at 561-562. "[A] judge's 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"
(quotation and citation omitted). L.L. v. Commonwealth, 470
Mass. 169, 185 n.27 (2014). Importantly, "[w]e accord the
credibility determinations of the judge who heard the testimony
of the parties . . . [and] observed their demeanor . . . the
utmost deference." Noelle N. v. Frasier F., 97 Mass. App. Ct.
660, 664 (2020), quoting Yahna Y., supra at 185. Also, where
the judge has not made specific factual findings on the record,
we consider whether the judge had a reasonable basis to find, by
3 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).
The defendant argues that the plaintiff failed to meet her
burden of proof, in part because the judge improperly relied on
uncorroborated allegations and speculation. However,
independent corroboration is not required. Rather, the judge
could properly rely on the plaintiff's affidavit and testimony.
The affidavit described past physical abuse which resulted
in bruising on the plaintiff's arms, after which she experienced
"panic attacks" and "sobbing fits"; this type of abuse
constitutes a sufficient basis to issue a 209A order. It also
described the defendant's refusal to leave her apartment despite
her multiple requests that he move out, and his months-long
intimidating behavior where the defendant told the plaintiff
that "if [she] kicked him out he'd kill himself." The affidavit
further described an incident where the defendant came to her
apartment unannounced, removed a knife from the console of his
vehicle, and "held [the knife] to his wrist[s] saying he'd slit
them." The plaintiff stated that she feared what the defendant
4 was going to do with the knife while she was in the vehicle with
him.2
At the two-party hearing, the plaintiff testified that
after moving out, the defendant continued to contact her and
appear at her workplace after she had asked him to discontinue
communication. She testified that she was scared that the
defendant "might . . . escalate" and that "he ha[d] shoved [her]
before in the past, so [she'd] . . . be concerned something like
that could happen again." Further, the plaintiff testified that
the defendant visited her workplace the day after he was served
with the ex parte order that required he stay away from the
premises. While the defendant testified that "[t]here was never
anything physical or threatening that occurred in the entire
time period we've known each other," the defendant admitted, in
response to the judge's questions, that he had continued to
communicate with the plaintiff, to appear at her workplace, and
that he felt upset "after going months of respecting her, you
know, giving her space, not showing up [at her workplace] when
The defendant argues that the "court" and the police 2
violated his constitutional rights by not serving him with the plaintiff's affidavit. The defendant cites no authority for this requirement, and we are aware of none. The defendant was presumably given the opportunity to review the affidavit at the two-party hearing: when the affidavit was mentioned, and when the judge read aloud from the affidavit at the hearing, the defendant did not object, claim surprise, or ask to see it. The lack of an objection also waives the issue.
5 [he] could have." Indeed, text messages submitted at the
hearing showed the plaintiff's multiple requests to terminate
contact and the defendant's refusal to do so.
It was within the judge's discretion to credit the
plaintiff's affidavit, and her testimony that she feared
physical harm after a previous incident of being shoved and
bruised by the defendant. We conclude that given the totality
of the circumstances the judge had a sound basis to find that
the plaintiff's fear was objectively reasonable.
The defendant argues that the judge violated his
"fundamental due process protections" under the Massachusetts
Declaration of Rights and the Fourteenth Amendment to the United
States Constitution by improperly guiding the plaintiff's
testimony at the extension hearing. We discern no abuse of
discretion. The judge permissibly asked open-ended questions of
both the plaintiff and the defendant to secure relevant
information.3 Trial judges have considerable discretion in
seeking the information they need. See Commonwealth v.
Fitzgerald, 380 Mass. 840, 847 (1980) ("there may be occasions
3 The defendant also argues that the plaintiff violated the Health Insurance Portability and Protection Act by presenting medical information to the judge, and that such conduct discredits her affidavit. As this issue was not raised at the hearing, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
6 in which a trial judge quite appropriately asks questions to
clarify a point, to prevent perjury, or to develop trustworthy
testimony").
Considering the basis for the initial abuse prevention
order and the totality of the circumstances presented at the
hearing, the judge properly exercised his discretion in
extending the 209A order.
Order entered May 21, 2024, affirmed.
By the Court (Massing, Hand & Allen, JJ.4),
Clerk
Entered: December 19, 2025.
4 The panelists are listed in order of seniority.