N.M. v. B.S.

• Court: Massachusetts Appeals Court
• Decided: February 7, 2024
• Docket: 23-P-0448
• Status: Unpublished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

23-P-448

N.M.

vs.

B.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an abuse prevention order issued

against her under G. L. c. 209A. She argues that the evidence

was insufficient to show that the plaintiff was suffering from

abuse as defined in the statute. We agree and thus vacate the

c. 209A order, dated June 17, 2022. 1

Background. The plaintiff is married to the defendant's

brother, R.M. In an affidavit supporting her complaint for a

c. 209A order against the defendant, the plaintiff described the

following two incidents: the defendant came to her workplace,

"want[ing] to make [an] appointment with [her]"; and the

defendant came to her and R.M.'s house and tried to open the

1 The plaintiff did not file a brief or otherwise participate in the appeal, as is her right. door. A temporary order issued ex parte, and a two-party

hearing was held a few days later.

Both parties appeared pro se and testified at the two-party

hearing, as did R.M., who had sought his own c. 209A order

against the defendant. When the judge asked the plaintiff why

she was in fear of imminent serious harm from the defendant, the

plaintiff cited the incident where the defendant came to her

workplace. The plaintiff testified that she never told the

defendant where she worked and it "surprised" her when the

defendant showed up. In response the defendant testified that

she went to see the plaintiff because she was concerned about

statements that the plaintiff had purportedly made about being

abused by R.M.

Later in the hearing, the plaintiff briefly described the

incident where the defendant showed up at her house, stating

that she saw the defendant walking outside and then heard her

banging on the door. Both the plaintiff and R.M. also testified

that the defendant shut off the electricity to their house on

one occasion. When the judge asked the defendant to explain,

she stated that she was at the house with her (and R.M.'s)

mother, noticed an issue with the heating in one of the

bedrooms, and "reset" the circuit breaker to fix it.

At the conclusion of the hearing, the judge asked R.M.

whether he was in fear of the defendant. R.M. replied, "[I]t's

2 my wife . . . and my child that I'm worried about." The judge

then denied R.M.'s request for a c. 209A order, while at the

same time issuing a c. 209A order on behalf of the plaintiff.

The judge explained that he was doing so because of the

plaintiff's "concern . . . and her fear approaching work." 2

Discussion. Under G. L. c. 209A, § 3, "[a] person

suffering from abuse" by a family or household member may file a

complaint seeking protection from such abuse. The statute

defines "abuse" as "attempting to cause or causing physical

harm," "placing another in fear of imminent serious physical

harm," or "causing another to engage involuntarily in sexual

relations by force, threat or duress." G. L. c. 209A, § 1. For

a c. 209A order to issue based on "fear of imminent serious

physical harm" -- the only form of abuse at issue here -- the

plaintiff must prove by a preponderance of the evidence that her

"apprehension that force may be used [was] reasonable." Carroll

v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). See Vittone v.

Clairmont, 64 Mass. App. Ct. 479, 485-486 (2005).

We agree with the defendant that the plaintiff did not meet

her burden. The plaintiff presented no evidence that the

2 While the judge directed the defendant not to contact the couple's child and to stay away from his daycare, the c. 209A order itself was issued on behalf of the plaintiff only. The judge acknowledged at the hearing that "[n]obody's accusing [the defendant] of anything bad with the child at all."

3 defendant ever threatened her, either directly or indirectly,

with physical harm. The plaintiff's "surprise[]" at the

defendant's showing up to her workplace does not constitute fear

of imminent serious physical harm. See Wooldridge v. Hickey, 45

Mass. App. Ct. 637, 639 (1998) ("Generalized apprehension,

nervousness, feeling aggravated or hassled, i.e., psychological

distress from vexing but nonphysical intercourse, when there is

no threat of imminent serious physical harm, does not rise to

the level of fear of imminent serious physical harm"). To the

extent the plaintiff subjectively feared that the defendant

would use physical force, that fear was not reasonable absent

any evidence that the defendant threatened or had previously

attempted to harm her. See Carroll, 56 Mass. App. Ct. at 86-87

(defendant's "persistent phone calls and other unsolicited

efforts to contact [plaintiff]" did not support a reasonable

fear of imminent serious physical harm where plaintiff

"identified no particular menacing language or gesture

suggesting she was in imminent peril of physical force being

used against her").

As we read the judge's ruling, it was based solely on the

workplace incident and not on the other two incidents that

occurred at the house. This is supported by the fact that the

judge declined to issue a c. 209A order as to R.M. In any

event, assuming that the other two incidents factored into the

4 judge's decision and that they caused the plaintiff to fear

imminent serious physical harm, we conclude that her fear was

not objectively reasonable for the same reasons as those stated

above.

Conclusion. The G. L. c. 209A order dated June 17, 2022,

is vacated, and the case is remanded to the District Court for

the entry of an order directing the appropriate law enforcement

agency to destroy all records of the vacated order in accordance

with G. L. c. 209A, § 7, third par.

So ordered.

By the Court (Desmond, Shin & Singh, JJ. 3),

Assistant Clerk

Entered: February 7, 2024.

3 The panelists are listed in order of seniority.