Smith v. Jones

915 N.E.2d 260, 75 Mass. App. Ct. 540
Massachusetts Appeals Court·Decided October 22, 2009·No. No. 08-P-1165·Published·Cited by 17 cases

Opinions

McHugh, J.

On this appeal the defendant, whom we shall call Robert, challenges a District Court order permanently prohibiting his contact with the appellee, whom we shall call Agnes, and her daughter. See G. L. c. 209A. Robert is a Florida resident who, at one time, had a relationship with Agnes, a resident of Lexington. We think that the permanent extension was unjustified and order it vacated.

The record reflects that Agnes and Robert, both of whom worked in the same industry and attended the same industry-[541] wide out-of-town events, had a four-year romantic relationship. Agnes, married and the mother of a young daughter, ended the relationship on or about November 23, 2005. During the period from November 24, 2005 through January 5, 2006, Robert, clearly distressed, telephoned Agnes “thousands” of times and left messages on her voicemail on thirty-eight occasions. Sometimes the voicemail messages were deposited in an intense flurry. For example, on the evening of November 29, 2005, Robert left seven messages, though in a message the following day, he apologized, saying that he had been “drinking a little bit and feeling lonely.”

None of the messages contained threats of physical harm. Instead, in each message Robert stated that he did not understand why Agnes was ending the relationship or why she would not speak to him and that he wanted very much to speak to her. On a single occasion, Robert mentioned Agnes’s daughter, but that was in the context of saying that he was thinking of Agnes, her father and her daughter on the anniversary of her father’s death and in the aftermath of a chest scan Robert, himself, had had.

On January 4, 2006, Robert left a series of messages suggesting that he was going to come to Agnes’s home in Massachusetts to talk to her. At that point, she sought a restraining order under G. L. c. 209A. The affidavit Agnes filed in support of her application said that “on or about January 4, 2006 . . . [Robert] called me and said he would come to my home this Friday, January 10th, to force me into a conversation” (emphasis in original). Agnes’s affidavit also said that “[t]his message was one of hundreds of calls (voicemails) that [Robert] has made to me over the last few months after I explicitly requested that he not contact me again.”

Agnes further explained in her affidavit that Robert had “tracked her down” while she was vacationing with her family in Aruba, and while she was on a business trip in the Dominican Republic.3 Agnes also stated Robert had “tricked” her by posing as a client when telephoning her New York office. In addition, Agnes asserted that Robert directed mail and facsimiles to Agnes’s home with fictitious sender information.

The court issued an emergency order on January 4, 2006, and [542] scheduled an extension hearing for January 12, 2006. On January 5, 2006, Robert left another message, this one stating that he had spoken to a detective (presumably the one who served the order) and apologizing for his calls, saying that he had not intended to frighten Agnes and that he would not call again. Nothing in the record suggests that he ever did.

At Robert’s request the extension hearing was continued to February 2, 2006. Robert failed to appear on that date and the court extended the order for one year.4 On May 10, 2006, Robert filed a motion to vacate the order. The motion was denied and Robert did not appeal.

One year later, on February 1, 2007, Agnes sought a further extension. She filed an affidavit in support of her request, stating that Robert had repeatedly passed by her booth at a March, 2006, New York City trade show, coming within ten feet of her and “smirking.”5 Robert did not appear at the hearing,6 and a judge ordered a permanent extension of the order. Later, however, Agnes agreed to a modification reducing the term to one year.7

Another year passed and then, on April 14, 2008, Agnes filed another motion to extend the order. Robert did not appear at the ensuing hearing but was represented by counsel. Agnes testified, among other things, that she had not been “in touch with” [543] Robert “for years” but that she was still in fear of him. At the hearing’s conclusion, a judge who had not been involved in the earlier proceedings extended the order permanently.

On appeal, Robert challenges only the permanent order of April 14, 2008. He contends there is no reasonable basis for that order because he has never threatened, harmed, or abused Agnes, in any way. Robert also contends there was no evidence to warrant the District Court judge’s issuance of a permanent extension of the order insofar as it dealt with the plaintiff’s daughter.

Discussion. General Laws c. 209A, § 1, provides that the “abuse” for which a protective order may issue can take several forms.8 The only form applicable here is “placing another in fear of imminent serious physical harm.” Ibid. That form “closely approximates the common law description of the crime of assault.” Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). Accordingly, “[wjhen a person seeks to prove abuse by ‘fear of imminent serious physical harm,’ our cases have required in addition that the fear be reasonable.” Iamele v. Asselin, 444 Mass. 734, 737 (2005).

“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon, supra. The court looks to actions and words because a reasonable fear of imminent serious physical harm is to be determined by an objective standard. The complainant’s fears “must be more than ‘subjective and unspecified’; viewed objectively . . . ‘the plaintiff’s apprehension that force may be used [must be] reasonable.’ ” Vittone v. Clairmont, 64 [544] Mass. App. Ct. 479, 486 (2005), quoting from Carroll v. Kartell, 56 Mass. App. Ct. 83, 86-87 (2002).

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Smith v. Jones, 915 N.E.2d 260, 75 Mass. App. Ct. 540 (Mass. Ct. App. 2009).

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