Szymkowski v. Szymkowski

782 N.E.2d 1085, 57 Mass. App. Ct. 284
CourtMassachusetts Appeals Court
DecidedFebruary 5, 2003
DocketNo. 01-P-118
StatusPublished
Cited by9 cases

This text of 782 N.E.2d 1085 (Szymkowski v. Szymkowski) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Szymkowski v. Szymkowski, 782 N.E.2d 1085, 57 Mass. App. Ct. 284 (Mass. Ct. App. 2003).

Opinion

Kass, J.

Violence among family or household members is the social ill for which G. L. c. 209A attempts a remedy.2 Turner v. Lewis, 434 Mass. 331, 334 (2001). We decide that the conduct described by the Probate Court judge as the basis of a c. 209A order against the defendant did not, within the meaning of the [285]*285statute, involve the infliction of physical harm on his daughter — she was seven years old at the time of the c. 209A hearing — nor did the defendant place her in fear of imminent serious physical harm.* *3

Facts. We take the facts largely from those found by the Probate Court judge. Chapter 209A proceedings are civil in nature, Jones v. Gallagher, 54 Mass. App. Ct. 883, 886 (2002), and we accord the judge’s findings the great deference prescribed by Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). We may supplement those findings with inspection of the transcript of the c. 209A proceedings to assist us in determining whether the evidence, as matter of law, warranted issuance of the c. 209A order. See Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020, 1020 (1997).4

Patrick Szymkowski, the defendant, and his wife, Christine, were divorced January 9, 1998. Christine remarried and is now known as Christine King-Leland. The divorce judgment provided for shared legal custody of three minor children, primary custody to be with the mother. The defendant had regular visitation with the child, Brittany. Relations between the defendant and King-Leland since their separation have been hostile and distant.

The precursor to the filing of the abuse complaint by King-Leland, on behalf of Brittany, against the defendant was a five-day Vermont skiing trip in February, 2000, that the defendant had taken with Brittany. Brittany complained of four events during that trip. First. On a Saturday morning, while in bed at a motel where she and her father had shared the available bed, Brittany said that she missed her mother. That annoyed the defendant and he kicked Brittany “hard” in the back of her legs. Second. Brittany woke up in the middle of the night [286]*286and asked for a glass of milk. The defendant said, “Wait, I’m finishing a dream . . . .” In the dream, as he then related it to Brittany, she was on the floor playing; dust bunnies and monsters came out from under the bed and cut her with a knife until she died. He, the father, then took the dust bunnies and monsters outside, poured gunpowder on them, and killed them. Third. On a Wednesday morning, the fifth day of the ski trip, Brittany said she did not feel well and did not want to go to ski school, in which her father had enrolled her. The defendant told her that “quitters never win, and winners never quit.” Brittany reported that the defendant, by way of emphasis, threw an empty plastic milk container at her that hit her foot. Fourth. On the way back from the Kilhngton, Vermont, ski area, the defendant stopped with Brittany at a K-Mart store in New Hampshire to buy a piece of jewelry for her. The two became separated when he walked to a cashier to conclude his purchase. She was looking at “pretty pink Easter eggs.” The defendant asked a customer service representative to page his daughter but spotted her before a page went out. Loud enough for Brittany to hear, and for her benefit, the defendant said to the customer representative, “Don’t call the police.” He then took Brittany aside and struck her twice with his hand under her chin.

In addition to the ski trip incidents, the Probate Court judge found that the father had pinched Brittany’s arm “on one occasion in the past, and that this incident caused her physical harm that resulted in bruises.” In his findings, the probate judge also noted with disapproval that the defendant frequently had shared a bed with Brittany in motel or hotel rooms when traveling with her. The judge further found that there had been an occasion when the defendant had angrily pushed Brittany into the back seat of a car “and press[ed] and pin[ned] her down.”

Discussion. Administration of the potent remedies of G. L. c. 209A requires great sensitivity for the suffering and, sometimes, the mortal danger that flow from domestic violence. See Commonwealth v. Contach, 47 Mass. App. Ct. 247, 253 (1999); Jones v. Gallagher, 54 Mass. App. Ct. at 887-889. With good reason, c. 209A has teeth, including: bail review consequences (see G. L. c. 276, § 57, as amended by St. 1992, c. 201, [287]*287§ 2); entry on a State record of abusers (St. 1992, c. 188, § 7);5 criminal record for violation of a c. 209A order; and deportation (see Commonwealth v. Villalobos, 437 Mass. 797, 798 [2002]).

For those reasons, among others, a court “should not issue a G. L. c. 209A order simply because it seems to be a good idea or because [it seems] it will not cause the defendant any real inconvenience.” Smith v. Joyce, 421 Mass. 520, 523 n.l (1995). A c. 209A order will infallibly cause inconvenience. In considering whether to issue a c. 209A order, the judge must focus on whether serious physical harm is imminent. Ibid. Wooldridge v. Hickey, 45 Mass. App. Ct. at 639. Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). Generalized apprehension does not rise to the level of fear of imminent serious physical harm. Id. at 86-87. In considering an application for a c. 209A order, a judge must be alert against allowing the process to be used, as it sometimes is, “abusively by litigants for purposes of discovery and harassment.” Jones v. Gallagher, 54 Mass. App. Ct. at 887 n.4.

In the instant case, there are distinct overtones of the use of c. 209A as a weapon in circumstances of reciprocal hostility between divorced parents and differences, as well as genuine concern, about how to deal with a child. We have, in recapitulation of the judge’s findings, a father who told his seven year old about peculiar and frightening dreams; tossed a milk container at the child; cuffed her under the chin in irritation; gave her a kick in the back of her legs while both were in bed, again because he was irritated; and pinched his daughter on the arm so that it left a mark.6

On the basis of the findings that the judge made, the defendant is hardly entitled to an “A” grade as a parent. Indeed, his conduct is unacceptable parental behavior, but c. 209A is not [288]*288designed as a prod toward better parenting. Rather, the statute, as we have said, aims to prevent physical harm. Cf. Petition of the Dept. of Pub. Welfare to Dispense with Consent to Adoption, 383 Mass. 573, 591-592 (1981) (it is not the quality of parental conduct that justifies State action but the fact of endangerment to the child). Of course, violence to children may not be tolerated, and c. 209A is part of the arsenal to prevent such violence. The facts in this case lie more on the intemperate parenting side of the line than the parental violence side of the line. Cf. Cobble v. Commissioner of the Dept. of Social Serv., 430 Mass. 385, 391-393 (1999). In such circumstances, as we suggest below, a court concerned that a parent may be interacting with a child in hurtful ways should consider the less draconian but equally, if not more, effective measures that are available.

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Bluebook (online)
782 N.E.2d 1085, 57 Mass. App. Ct. 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/szymkowski-v-szymkowski-massappct-2003.