Vanna V. v. Tanner T.

• Court: Massachusetts Appeals Court
• Decided: April 28, 2023
• Docket: AC 22-P-360
• Status: Published

Opinion

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22-P-360 Appeals Court

VANNA V. vs. TANNER T.

No. 22-P-360.

Essex. January 10, 2023. – April 28, 2023.

Present: Sullivan, Shin, & Hodgens, JJ.

Abuse Prevention. Protective Order.

Complaint for protection from abuse filed in the Salem Division of the District Court Department on September 3, 2021.

A motion to extend a protective order was heard by Randy S. Chapman, J.

Amy T. Sollins for the defendant. Vanna V., pro se.

HODGENS, J. Pursuant to G. L. c. 209A, the plaintiff filed

a complaint for protection from abuse. She alleged that the

defendant (her former husband) placed her in fear of imminent

serious physical harm. A District Court judge issued an ex

parte abuse prevention order against the defendant. Following

an evidentiary hearing with the defendant present and 2

represented by counsel, another District Court judge extended

the abuse prevention order for one year. On appeal, the

defendant challenges the extension of the order, contending that

the evidence was insufficient and the judge misapplied the law.

We affirm.

Background. At the extension hearing on September 13,

2021, the plaintiff presented evidence of the parties' marital

history, prior abuse by the defendant, e-mail correspondence,

events at a recent family wedding, and the recent acts of

vandalism that precipitated these proceedings. The judge heard

the testimony of the plaintiff and two of her three adult

children, as well as the testimony of the defendant, who denied

any acts of vandalism or prior abuse (apart from grabbing the

plaintiff's arm in 2004). The judge credited the plaintiff's

evidence showing a history of domestic violence.

According to that evidence, the parties' nearly thirty-five

year marriage included a long history of abuse perpetrated by

the defendant. The parties were divorced in 2010. During the

marriage, the plaintiff "endured significant financial,

psychological and physical abuse" by the defendant, including

being raped in 1980, thrown against a door in 1979 or 1980, and

pushed against a wall in 1986. In July of 2004, the defendant

tried to break her arm during a struggle for a set of keys. A

criminal charge of assault and battery resulted from the 2004 3

incident, but the case was continued without a finding for six

months and then dismissed. The physical abuse ended when the

parties divorced in 2010. Since that time, the plaintiff tried

"not to engage" with the defendant and tried to "make sure he

kn[e]w[]" that she would not engage with him. The plaintiff and

the defendant saw each other at a graduation in 2017 and did not

see each other again until their son's wedding four years later.

In June of 2019, the defendant initiated contact through an

e-mail message that was rebuffed as unwelcome. The defendant

sent the e-mail message to the plaintiff and their children and

wrote, "I want to take this opportunity to apologize to all of

you for my actions that contributed to our family falling

apart." He asked for a chance to "respect and love" one another

and to "respect our differences." Both the plaintiff and one

son sent replies rejecting this overture, and the plaintiff

asked that she "not . . . be included in any further group

emails." Two years later, in August of 2021, the defendant sent

another e-mail message to this son, who was to be married within

weeks. In that e-mail message, the defendant expressed sadness

at how his son had treated him, and he asked if he was being

invited to the wedding just to create the "appearance" of love

and respect. Once again, the defendant made overtures about

improving their father-son relationship. The son viewed the e- 4

mail message as an effort "to control" him and to blame his

mother for the family problems.

The son's wedding in the summer of 2021 became a source of

tension. The defendant attended the wedding, but according to

the parties' children he played an insignificant role and

appeared "slighted" and "withdrawn." One of the sons believed

that the defendant had been "more upset recently than he has

been in a while." Specifically, the defendant appeared

"upset[]" due to his "lack of a central role in the wedding."

By contrast, the plaintiff appeared to be "engaged" in the

wedding activities and was "enjoying herself."

Two days after the wedding, the plaintiff awakened at 3

A.M. to noises outside her residence. Later that morning, the

plaintiff went outside to drive to work and found that her car

had been "vandalized in a very threatening way and in a really

angry way." She saw the car, parked perpendicular to the

sidewalk and residential street, displaying obscenities and a

phallic symbol scratched into the paint. She testified at the

extension hearing, "It [said] bitch, fuck you. And then all the

panels were keyed around it with fuck you, and vomit was poured

over every door. And the tire was slashed." The gas tank cover

had been opened and sugar had been poured into the tank. A

fence in front of the residence also displayed obscenities

written in large letters. The fence faced the residential 5

street as well as the middle school where the parties' children

had been students. As a result of the vandalism, the plaintiff

contacted the police, photographed the property damage, stayed

at the residence at night while accompanied by one of her sons,

and installed a security system. This vandalism incident

prompted the plaintiff to seek the abuse prevention order.

After hearing the plaintiff's evidence as well as the

defendant's testimony (in which he denied all allegations of

abuse apart from grabbing the plaintiff's arm in 2004), the

judge extended the abuse prevention order for one year. He

specifically credited the "history of domestic violence" as well

as the observations and concerns expressed by the two sons. He

noted that the vandalism (supported by photographic evidence)

demonstrated a "level of hostility," "appear[ed] to be targeted

to somebody," was not "random," and "pointed at the

[d]efendant." The judge concluded that the plaintiff "ha[d]

sustained her burden by a preponderance of the evidence."

Discussion. General Laws c. 209A "provides a statutory

mechanism by which victims of family or household abuse can

enlist the aid of the State to prevent further abuse."

Commonwealth v. Gordon, 407 Mass. 340, 344 (1990). "Abuse" is

defined in the statute as "the occurrence of one or more of the

following acts between family or household members: (a)

attempting to cause or causing physical harm; (b) placing 6

another in fear of imminent serious physical harm; [or] (c)

causing another to engage involuntarily in sexual relations by

force, threat or duress." G. L. c. 209A, § 1. Here, the

plaintiff alleged that the defendant placed her in fear of

imminent serious physical harm.1 Fear that force may be used

must be "reasonable" and more than "subjective and unspecified."

Vittone v. Clairmont, 64 Mass. App. Ct. 479, 486 (2005), quoting

Carroll v. Kartell, 56 Mass. App. Ct. 83, 86-87 (2002). The

plaintiff bears the "burden of proving by a preponderance of the

evidence that she is suffering from abuse" under c. 209A.

Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020).

On appeal, the defendant faults the judge for (1) applying

the wrong legal standard, (2) attributing nonthreatening

vandalism to the defendant, and (3) issuing an order based upon

past abuse that was too remote in time. "We review . . . for an

abuse of discretion or other error of law." Noelle N., 97 Mass.

App. Ct. at 664, quoting E.C.O. v. Compton, 464 Mass. 558, 561-

562 (2013). After reviewing the record, we discern no "clear

error of judgment" or error of law in the judge's decision to

extend the order (citation omitted). L.L. v. Commonwealth, 470

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

1 Because the plaintiff sought relief under the "fear of imminent serious physical harm" definition of abuse under G. L. c. 209A, § 1, we do not address the alternative definitions. 7

Contrary to the defendant's claim, the record shows that

the judge applied the correct legal standard. The defendant

contends that the judge simply extended the abuse prevention

order because he concluded that the defendant vandalized the

plaintiff's car. The transcript of the hearing, however, shows

that the judge properly focused on the plaintiff's "burden of

proving by a preponderance of the evidence that she is suffering

from abuse" under G. L. c. 209A. Noelle N., 97 Mass. App. Ct.

at 664. At the beginning of the hearing, the judge told the

plaintiff, who was self-represented, "You can call any witnesses

that you want. The burden of proof is always on the [p]laintiff

in these matters to prove by a preponderance of the evidence or

prove that it's more probable than not that you need the

protection." The judge's questioning of the plaintiff showed

that he was focused on the central issue of abuse under G. L.

c. 209A: "What incident or incidents occurred that have placed

you in fear?" "[D]id anyone hear him make any threats of any

kind or express his anger about your happiness?" "[W]hen was

the last incident of physical abuse that occurred?" "So what

you're alleging is during the marriage, there was a long history

of abuse." "Has that [vandalism] placed you in imminent fear of

serious bodily injury?" In closing argument to the judge,

defense counsel also emphasized the plaintiff's burden to prove

"fear of imminent serious physical harm" and conceded that proof 8

of the defendant being "connected to the vandalism" might meet

that standard. Thus, the record shows that the judge remained

faithful to the correct legal standard under G. L. c. 209A, § 1.

The judge permissibly found by a preponderance of the

evidence that the defendant committed the vandalism, given its

timing on the heels of the wedding and its targeted nature. In

determining whether the plaintiff met her over-all burden of

proving abuse, the judge properly viewed this evidence of

vandalism within the context of the entire relationship rather

than just "standing alone or in a vacuum." Vittone, 64 Mass.

App. Ct. at 486. During the marriage, the plaintiff suffered

repeated instances of violence, including sexual violence.

After the marriage ended in 2010, the plaintiff avoided engaging

the defendant. In 2017, the plaintiff and the defendant saw

each other at a graduation and did not see each other again

until their son's wedding four years later. In 2019, the

plaintiff and the son rebuffed the defendant's e-mail effort to

resume a family relationship. Just weeks before the vandalism

in 2021, the defendant made yet another unsuccessful effort to

reach out to the son who was getting married. The wedding left

the defendant in a marginalized role where he appeared

"slighted," "withdrawn," and "more upset" than he had been in a

while. The vandalism occurred just two days after the defendant

had been in the plaintiff's presence after not having seen her 9

for four years. As the judge permissibly found, the vandalism

revealed a level of hostility that was not random, and as the

plaintiff points out in her brief, the vandalism was

"sexualized" and designed to cause "harm and terror" by

reawakening "years of trauma."

Viewing this targeted vandalism within "the totality of the

circumstances of the parties' relationship," Iamele v. Asselin,

444 Mass. 734, 740 (2005), the judge could reasonably conclude

that the plaintiff was in "fear of imminent serious physical

harm." G. L. c. 209A, § 1. The evidence showed a long history

of abuse, rejection of the defendant after his attempts to

communicate, emotional turmoil from a wedding, and targeted

vandalism. Based on this series of escalating events, the judge

could reasonably conclude the defendant's hostility "had never

subsided," Vittone, 64 Mass. App. Ct. at 489, and the extreme

vandalism to the plaintiff's car, in the early morning hours at

the plaintiff's residence, could be a precursor to physical

violence and fully justified the plaintiff's "fear of imminent

serious physical harm." G. L. c. 209A, § 1. See Pike v.

Maguire, 47 Mass. App. Ct. 929, 930 (1999) (reasonable fear of

physical harm from "smashing of the plaintiff's family vehicle's

windshield").

The judge properly gauged whether the plaintiff's fear of

the defendant was "reasonable." Iamele, 444 Mass. at 737. To 10

establish the reasonableness of this fear, "it is not necessary

that there be a history –- or even a specific incident of

physical violence." Noelle N., 97 Mass. App. Ct. at 665.

Although not required, the record here contains evidence of both

a history and specific incidents of physical violence. The

judge found, "[T]here was a history of domestic violence that I

do credit." Contrast Keene v. Gangi, 60 Mass. App. Ct. 667, 669

(2004) (insufficient evidence of abuse where "nothing in the

record . . . that show[ed] a history of violence, threats, or

hostility in the relationship"). Any dispute as to the history

of abuse and the incidents of violence was for the judge to

resolve. "We accord the credibility determinations of the judge

who 'heard the testimony of the parties . . . [and] observed

their demeanor,' . . . the utmost deference." Ginsberg v.

Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike, 47

Mass. App. Ct. at 929. Given the long history of violence and

the detailed testimony of the plaintiff as credited by the

judge, we see no error in the judge's conclusion that the

plaintiff's fear was reasonable.

The judge did not extend the abuse prevention order based,

as the defendant put it, "almost exclusively on a past history

of abuse." As the foregoing demonstrates, the judge based his

decision appropriately on "the totality of the circumstances of

the parties' relationship." Iamele, 444 Mass. at 740. The 11

instant case is distinguishable from Dollan v. Dollan, 55 Mass.

App. Ct. 905, 906 (2002), cited by the defendant. In Dollan,

the plaintiff sought an abuse prevention order against her

mother who had physically, sexually, and emotionally abused her

many years earlier when the plaintiff was a child and young

teenager. Id. at 905. Unlike the instant case involving

escalating events and significant, targeted vandalism, Dollan

lacked any evidence of "conduct immediately preceding the

issuance of the order" that would have placed the plaintiff in

fear of imminent serious physical harm. Id. at 906. The

judge's order here is not only well supported by the evidence

but is also consistent with "the important public policy of

preserving the fundamental right to be protected from the

devastating impact of domestic abuse." Callahan v. Callahan, 85

Mass. App. Ct. 369, 373-374 (2014).

In addition to the significant factual distinction with

Dollan, we note that subsequent case law developments

circumscribe the continuing vitality of that case. In Dollan,

the court noted that c. 209A limits the concept of abuse "to the

present tense" and is focused on preventing imminent serious

harm and "not merely responding to past abuse." Dollan, 55

Mass. App. Ct. at 906. That quoted language cannot be construed

in a "rigid manner" that disregards or minimizes the

significance of past abuse. Vittone, 64 Mass. App. Ct. at 484. 12

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." Id.

at 487. Cf. Callahan, 85 Mass. App. Ct. at 374 (judge must

appraise "the impact of the violence already inflicted" where

extension is predicated on attempted or actual physical abuse or

involuntary sexual relations).

Finally, the defendant's view of the parties' current

relationship is not dispositive. Throughout his brief, the

defendant downplays the tension. He emphasizes that the parties

divorced a decade earlier, the children are all adults, the

defendant is retired and sixty-seven years old, the divorce

litigation has terminated, the physical abuse incidents are

remote in time and most occurred when the defendant was in his

twenties, the parties lack any contact, the family members all

enjoyed the wedding, and the defendant did not show anger at the

wedding. The judge heard this evidence but did not credit it.

His assessment of the credibility and weight of the evidence

will not be disturbed on appeal. The defendant's argument also

overlooks the lingering malevolence of domestic violence. Abuse

by a family member, almost invariably inflicted on those who are

weaker and less able to defend themselves, "is a violation of

the most basic human right, the most basic condition of 13

civilized society: the right to live in physical security, free

from the fear that brute force will determine the conditions of

one's daily life." Custody of Vaughn, 422 Mass. 590, 595

(1996). "The infliction of some wounds may be so traumatic that

the passage of time alone does not mitigate the victim's fear of

the perpetrator." Vittone, 64 Mass. App. Ct. at 489.

Order dated September 13, 2021, extending abuse prevention order affirmed.