S.B. v. L.M.-h.

• Court: Massachusetts Appeals Court
• Decided: September 23, 2025
• Docket: 24-P-0859
• Status: Unpublished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

24-P-859

S.B.

vs.

L.M.-H.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, L.M.-H., appeals from an abuse prevention

order issued pursuant to G. L. c. 209A, § 3. He argues that the

plaintiff, S.B., failed to show by a preponderance of the

evidence that she had a reasonable fear of imminent serious

physical harm. We affirm.

Background. On March 21, 2024, the plaintiff filed a

complaint for an abuse prevention order against the defendant.

In support of her complaint, the plaintiff provided an affidavit

averring that the defendant had left a voicemail message for her

aunt stating that he was going to send someone to the

plaintiff's college campus to "take care of" her and hire a

private investigator to find out where she was. She further averred that the defendant had contacted officials at her

college and claimed that she was threatening him. The District

Court judge issued an ex parte abuse prevention order that day.

After the ex parte order was extended two times, a two-party

hearing was held on May 6, 2024. Both parties were present, and

the defendant was represented by counsel.

At the hearing, the plaintiff introduced into evidence the

recorded voicemail message from the defendant. In the message,

the defendant stated that the plaintiff "has a dorm room there

in Massachusetts at [a specific college], but my private

investigator will take care of her, . . . he's going to contact

[the college], show all the threats from her and her fucking

drug dealer in Houston, Texas, and that's that . . . ." The

plaintiff testified that the defendant is her brother who, ever

since their mother died in June 2021, has engaged in aggressive

and paranoid behavior and "shown violent behavior in the past

towards [her] and [her] autistic, nonverbal brother." Even

though she had not spoken with her brother in over a year, he

has left "similar messages that he believes I'm contacting him

and threatening him."

On cross-examination, the plaintiff testified that there

were "ongoing matters" in a probate court in Connecticut

involving her mother's estate, of which the plaintiff, the

defendant, and their brother are beneficiaries. The plaintiff

2 testified that "noticeable anger and mental issues arose" with

the defendant after their father died in 2015, "but it became

significantly worse after our mother passed." The defendant now

lives in Florida. Although the plaintiff was not sure what the

defendant was implying by stating that his private investigator

would "take care of her," a university police sergeant to whom

she reported the message "believed it was a threat towards [her]

well-being." She further testified that in December 2021, the

last time she stayed overnight at her family home, the defendant

"threatened for [her] to leave the house and . . . punched the

staircase wall and [she] called the police." The defendant has

also thrown things at her and threatened to harm her while

striking objects near her.

The defendant did not testify at the hearing. At its

conclusion, the judge stated that he found the plaintiff

credible and issued the abuse prevention order for one year,

until May 5, 2025.

Discussion. On appeal, the defendant argues that there was

insufficient evidence to justify the abuse prevention order. We

disagree.

To support issuance of the order, the plaintiff bore the

burden to prove by a preponderance of the evidence that she was

suffering from "abuse," which is defined by G. L. c. 209A,

§ 1 (b), to include "placing another in fear of imminent serious

3 physical harm." To meet that standard, the plaintiff was

required to 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 Iamele v. Asselin,

444 Mass. 734, 737 (2005); Yahna Y. v. Sylvester S., 97 Mass.

App. Ct. 184, 186 (2020). In evaluating whether the plaintiff

has met her burden of proving that she has a reasonable fear of

imminent serious physical harm, the judge "must consider the

totality of the circumstances of the parties' relationship."

Iamele, supra at 740. We review the issuance of an abuse

prevention order for an abuse of discretion or other error of

law. E.C.O. v. Compton, 464 Mass. 558, 562 (2013). "[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" (quotations omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

Based on the evidence before him, the judge did not abuse

his discretion in concluding that the abuse prevention order was

warranted based on the plaintiff's credible testimony regarding

her fear of the defendant's increasingly aggressive and paranoid

behavior. We give the judge's credibility determinations "the

utmost deference" (citation omitted). Noelle N. v. Frasier F.,

4 97 Mass. App. Ct. 660, 664 (2020). The defendant's voicemail

message substantiated the reasonableness of that fear. While

the defendant contends that the message did not imply that he

would harm the plaintiff, his statement that his private

investigator would "take care of" the plaintiff could reasonably

be interpreted as a threat to her safety. The plaintiff further

testified that the defendant had attempted to call her through

anonymous phone numbers and accused the plaintiff of threatening

him even though they had not spoken in more than a year. This

evidence was sufficient to allow the judge to find that the

defendant's conduct caused the plaintiff to be in reasonable

fear of imminent serious physical harm.

Order entered May 6, 2024, affirmed.

By the Court (Rubin, D'Angelo, & Toone, JJ.1),

Clerk

Entered: September 23, 2025.

1 The panelists are listed in order of seniority.