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-984
N.M.
vs.
R.F.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing before a District Court judge on May
20, 2022, the plaintiff obtained an ex parte abuse prevention
order pursuant to G. L. c. 209A against the defendant, a former
boyfriend. After a second hearing by a different judge, the
order was extended for one year. The defendant appeals,
claiming that the evidence was insufficient to support a finding
of abuse and that the parties' relationship, which had ended ten
years prior to the issuance of the order, did not qualify as a
"substantive dating relationship" as required by G. L. c. 209A,
§ 1. Because the judge failed to consider one of the statutory
criteria for determining whether a substantial dating
relationship existed, we are constrained to vacate the order and
remand the case. Background. According to the record before us, the
plaintiff and the defendant were in a dating relationship
between 2007 and 2009. The plaintiff alleged that the
relationship was abusive and outlined several instances of
abuse, including sexual assault, in her affidavit in support of
the ex parte order. At the two-party hearing, she testified
that, on different occasions, the defendant dragged her down
three flights of stairs, sexually abused her, emotionally abused
her, and threatened her. Specifically, she testified that, when
the relationship ended, he threatened to come find her, yank the
necklace that he gave her off of her neck, and choke her with
it.
The most recent contact between the parties occurred in
January of 2020, when the defendant contacted the plaintiff
twice, once via text and once on Facebook asking if they could
talk. The plaintiff testified that she believed this contact
was prompted by her filing a notarized witness statement against
the defendant one month earlier in connection with his divorce
proceedings. As previously noted, about two years later, on May
20, 2022, the plaintiff sought a 209A order after she reported
to the police that during the course of her relationship with
the defendant, he had told her that he molested his siblings and
cousins. The plaintiff testified that she was concerned that
the defendant would find out about the police report and contact
2 her again, as he had two years prior when she provided the
notarized statement in the defendant's divorce proceedings. She
further testified that she was afraid of the defendant based on
the abuse she had suffered during the course of their
relationship.
Discussion. On appeal, the defendant argues that the
plaintiff did not qualify for a 209A order because the
"substantive dating relationship" ended more than ten years
before the plaintiff sought the order and the plaintiff did not
allege any current or recent abuse by the defendant. The
defendant further argues that the judge committed an error of
law by not considering all of the statutory factors in
determining whether a substantive dating relationship existed,
and that more specifically, the significant passage of time
between the end of the relationship and the plaintiff's
application for the order militated against finding that she
qualified for a 209A order. The defendant also argues that the
plaintiff did not demonstrate a reasonable fear of imminent
physical harm based on the abuse she experienced between 2007
and 2009, even when taken in conjunction with the more recent
contact in the form of text and Facebook messages in January of
2020.
"General Laws c. 209A, § 1, directs courts to adjudge the
existence of substantive dating relationships by considering
3 four factors: '(1) the length of time of the relationship; (2)
the type of relationship; (3) the frequency of interaction
between the parties; and (4) if the relationship has been
terminated by either person, the length of time elapsed since
the termination of the relationship.'" E.C.O. v. Compton, 464
Mass. 558, 564 (2013). Here, in concluding that an abuse
prevention order should issue, the judge properly considered the
first three factors, but appeared to not consider the fourth.
At the conclusion of the hearing, defendant's counsel argued
that the parties were not in a substantive dating relationship
because "the length of time elapsed since the termination of the
relationship is well beyond." In response, the judge stated:
"Well, that's not relevant to whether she's a qualified person.
The length of time is a different argument."
The plaintiff acknowledges that the judge erred by not
considering the passage of time between the end of the
relationship and her application for an abuse prevention order
but asserts that the error was harmless. She argues that the
term "substantive dating relationship" should be construed
broadly to achieve the purposes of G. L. c. 209A, and that the
egregious nature of the abuse she suffered during the course of
the relationship (including sexual abuse), when viewed in
connection with the defendant's attempts to contact her
following the end of the relationship, undermined the
4 defendant's argument that the passage of time disqualified her
from obtaining a 209A order. This, she suggests, is
particularly true where the defendant's last contact with the
plaintiff seemed to have been precipitated by her filing a
statement in connection with legal proceedings, and the
application for the 209A order also immediately followed the
plaintiff reporting information to the police that she learned
during the course of her relationship with the defendant.
Although the plaintiff has articulated a compelling
argument, under the circumstances presented, we conclude that
the judge's failure to adequately consider one of the four
statutory criteria -- "the length of time elapsed since the
termination of the relationship," G. L. c. 209A, § 1 (e) --
requires us to vacate the order and remand for a factual finding
on that issue. In reaching our conclusion, we note that we are
not persuaded by the defendant's arguments that the judge abused
his discretion in determining that the plaintiff met her burden
to establish that she has a reasonable fear of imminent physical
harm based on instances of prior abuse. "To the contrary, prior
abuse may 'serve as the necessary backdrop for reaching a proper
understanding of more recent words and behavior as well as for
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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
22-P-984
N.M.
vs.
R.F.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a hearing before a District Court judge on May
20, 2022, the plaintiff obtained an ex parte abuse prevention
order pursuant to G. L. c. 209A against the defendant, a former
boyfriend. After a second hearing by a different judge, the
order was extended for one year. The defendant appeals,
claiming that the evidence was insufficient to support a finding
of abuse and that the parties' relationship, which had ended ten
years prior to the issuance of the order, did not qualify as a
"substantive dating relationship" as required by G. L. c. 209A,
§ 1. Because the judge failed to consider one of the statutory
criteria for determining whether a substantial dating
relationship existed, we are constrained to vacate the order and
remand the case. Background. According to the record before us, the
plaintiff and the defendant were in a dating relationship
between 2007 and 2009. The plaintiff alleged that the
relationship was abusive and outlined several instances of
abuse, including sexual assault, in her affidavit in support of
the ex parte order. At the two-party hearing, she testified
that, on different occasions, the defendant dragged her down
three flights of stairs, sexually abused her, emotionally abused
her, and threatened her. Specifically, she testified that, when
the relationship ended, he threatened to come find her, yank the
necklace that he gave her off of her neck, and choke her with
it.
The most recent contact between the parties occurred in
January of 2020, when the defendant contacted the plaintiff
twice, once via text and once on Facebook asking if they could
talk. The plaintiff testified that she believed this contact
was prompted by her filing a notarized witness statement against
the defendant one month earlier in connection with his divorce
proceedings. As previously noted, about two years later, on May
20, 2022, the plaintiff sought a 209A order after she reported
to the police that during the course of her relationship with
the defendant, he had told her that he molested his siblings and
cousins. The plaintiff testified that she was concerned that
the defendant would find out about the police report and contact
2 her again, as he had two years prior when she provided the
notarized statement in the defendant's divorce proceedings. She
further testified that she was afraid of the defendant based on
the abuse she had suffered during the course of their
relationship.
Discussion. On appeal, the defendant argues that the
plaintiff did not qualify for a 209A order because the
"substantive dating relationship" ended more than ten years
before the plaintiff sought the order and the plaintiff did not
allege any current or recent abuse by the defendant. The
defendant further argues that the judge committed an error of
law by not considering all of the statutory factors in
determining whether a substantive dating relationship existed,
and that more specifically, the significant passage of time
between the end of the relationship and the plaintiff's
application for the order militated against finding that she
qualified for a 209A order. The defendant also argues that the
plaintiff did not demonstrate a reasonable fear of imminent
physical harm based on the abuse she experienced between 2007
and 2009, even when taken in conjunction with the more recent
contact in the form of text and Facebook messages in January of
2020.
"General Laws c. 209A, § 1, directs courts to adjudge the
existence of substantive dating relationships by considering
3 four factors: '(1) the length of time of the relationship; (2)
the type of relationship; (3) the frequency of interaction
between the parties; and (4) if the relationship has been
terminated by either person, the length of time elapsed since
the termination of the relationship.'" E.C.O. v. Compton, 464
Mass. 558, 564 (2013). Here, in concluding that an abuse
prevention order should issue, the judge properly considered the
first three factors, but appeared to not consider the fourth.
At the conclusion of the hearing, defendant's counsel argued
that the parties were not in a substantive dating relationship
because "the length of time elapsed since the termination of the
relationship is well beyond." In response, the judge stated:
"Well, that's not relevant to whether she's a qualified person.
The length of time is a different argument."
The plaintiff acknowledges that the judge erred by not
considering the passage of time between the end of the
relationship and her application for an abuse prevention order
but asserts that the error was harmless. She argues that the
term "substantive dating relationship" should be construed
broadly to achieve the purposes of G. L. c. 209A, and that the
egregious nature of the abuse she suffered during the course of
the relationship (including sexual abuse), when viewed in
connection with the defendant's attempts to contact her
following the end of the relationship, undermined the
4 defendant's argument that the passage of time disqualified her
from obtaining a 209A order. This, she suggests, is
particularly true where the defendant's last contact with the
plaintiff seemed to have been precipitated by her filing a
statement in connection with legal proceedings, and the
application for the 209A order also immediately followed the
plaintiff reporting information to the police that she learned
during the course of her relationship with the defendant.
Although the plaintiff has articulated a compelling
argument, under the circumstances presented, we conclude that
the judge's failure to adequately consider one of the four
statutory criteria -- "the length of time elapsed since the
termination of the relationship," G. L. c. 209A, § 1 (e) --
requires us to vacate the order and remand for a factual finding
on that issue. In reaching our conclusion, we note that we are
not persuaded by the defendant's arguments that the judge abused
his discretion in determining that the plaintiff met her burden
to establish that she has a reasonable fear of imminent physical
harm based on instances of prior abuse. "To the contrary, prior
abuse may 'serve as the necessary backdrop for reaching a proper
understanding of more recent words and behavior as well as for
assessing the reasonableness of an applicant's fear of imminent
serious physical harm.'" Vanna V. v. Tanner T., 102 Mass. App.
Ct. 549, 555 (2023), quoting Vittone v. Clairmont, 64 Mass. App.
5 Ct. 479, 487 (2005). Cf. Callahan v. Callahan, 85 Mass. App.
Ct. 369, 374 (2014) (judge must appraise "the impact of the
violence already inflicted" where extension predicated on
attempted or actual physical abuse or involuntary sexual
relations). We are likewise satisfied that the judge acted
within his discretion in extending the order on the alternative
basis that the plaintiff demonstrated her ongoing need for
"protect[ion] . . . from the impact of [the defendant's past
physical and sexual] abuse," Vera V. v. Seymour S., 98 Mass.
App. Ct. 315, 319 (2020), quoting Yahna Y. v. Sylvester S., 97
Mass. App. Ct. 184, 186-187 (2020), independent of any fear of
imminent physical harm.
The order dated May 31, 2022, extending the abuse
prevention order is vacated, and the case is remand for further
proceedings consistent with this decision.1
So ordered.
By the Court (Vuono, Hand & Hodgens, JJ.2),
Clerk
Entered: May 23, 2023.
1 Both parties filed motions for appellate attorney's fees. Both motions are denied. 2 The panelists are listed in order of seniority.