Smith v. Jones , 75 Mass. App. Ct. 540 ( 2009 )

Cypher, J.

(dissenting). I respectfully dissent because the majority’s decision improperly invades the judge’s “broad” discretion in issuing the permanent order in this case. Crenshaw v. Macklin, 430 Mass. 633, 635 (2000).

“The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G. L. c. 209A, § 1. [Citation omitted.] Typically, the inquiry will be whether a plaintiff has a reasonable fear of ‘imminent serious physical harm.’ G. L. c. 209A, § 1(h).” Iamele v. Asselin, 444 Mass. 734, 739-740 (2005).

After the hearing, the judge stated:

“I’m going to issue a permanent order. I think that although there’s been no physical abuse of any kind, I think that the testimony [the plaintiff] offers and . . . given her demeanor on the stand, it’s quite clear that she is certainly in fear of imminent physical harm, not knowing where [the defendant] is or what he could do to her at any time, whether he could appear in her life at any time unexpectedly.”

Because a “plaintiff seeking an extension of a protective order must make a showing similar to that of a plaintiff seeking an initial order,” Iamele v. Asselin, supra at 734-735, the plaintiff submitted affidavits and evidence from the several previous hearings. In highly summarized form, that evidence revealed that the defendant initially stated in a telephone message that he would come to the plaintiff’s home to “force [her] into a conversation”¹; then subsequently tracked her while on a family vacation in Aruba and while on a business trip to the Dominican Republic; called her and appeared outside her office in New York City; and then repeatedly came by her booth at a trade show in New York City. The plaintiff reported that violation to the New York police.

The defendant asserts that it was unwarranted for the judge to conclude that the plaintiff had fear of “imminent physical harm” because there was no evidence of physical abuse, and that the plaintiff’s fear is only “generalized apprehension.” To the contrary, the defendant’s conduct was at least confrontational, intimidating, and menacing. Unlike Carroll v. Kartell, 56 Mass. App. Ct. 83, 86-87 (2002), where evidence of persistent telephone calls and other unsolicited efforts to establish contact without menacing language or gestures was insufficient, here the defendant’s tracking of the plaintiff was sufficiently menacing to warrant her fear. While such tracking was not as close up or dramatically confrontational as in Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 146 (2006), it had an insidious quality readily supporting the plaintiff’s reasonable apprehension of fear from the defendant’s “history of harassment, stalking[²] and pattern of erratic and unstable behavior.” Moreover, the judge had the benefit of evaluating the plaintiff’s credibility through her testimony and demeanor, and was entitled to credit her testimony concerning her fear. See Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999). The judge also properly considered other factors such as the defendant’s violation of a protective order, and the likelihood that the parties will encounter one another in the course of their employment, in evaluating the risk of future abuse if the order should expire. See Iamele v. Asselin, supra at 740.

“We have no difficulty in upholding the judge’s implicit finding!] that [the defendant’s] conduct, by word and act, . . . was not only ‘menacing by objective standards,’ Commonwealth v. Slaney, 345 Mass. 135, 140 (1962), but created an apprehension of imminent serious physical harm on the part of [the plaintiff] that was objectively reasonable.” Ginsburg v. Blacker, 67 Mass. App. Ct. at 143.³

The majority notes that the defendant promised he would make no more telephone calls after January 5, 2006,⁴ and the record demonstrates no further contacts with the defendant after the April, 2008, hearing. From this, the majority appears to conclude that there is no need for a permanent extension of the order. Such a conclusion ignores the potential consequences of not extending the order. “The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order.” G. L. c. 209A, § 3. That language “acknowledges the reality that, in some cases, respondents will obey the initial order, and that obedience alone is not a ground for refusing an extension of the initial order.” Iamele v. Asselin, 444 Mass. 734, 738 (2005).⁵ While the restraints of the order are not a guarantee that the forbidden contact will not occur, the plaintiff should not be exposed to the uncertainty of whether, in the absence of the order, the defendant will repeat such contact.

1 This was one of what were alleged to be “hundreds of calls.” Thirty-nine of those calls were transcribed, and submitted at the hearing. A fair reading of the transcriptions indicates the defendant’s torment over the ending of the parties’ relationship and the plaintiffs apparent refusal to talk to him. No threats appear, but the defendant acknowledged the plaintiff’s fears and recognized her being “scared” of him.

2 The majority acknowledges that there was sufficient evidence that the defendant had been stalking the plaintiff, potentially constituting criminal behavior under G. L. c. 265, § 43(a).

3 “We note that, for G. L. c. 209A purposes, the conduct proscribed as abuse ‘closely approximates the common-law description of assault’ [citations omitted], Under the common law, ‘it is well established in this State that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault’ (emphasis added). [Citation omitted.]” Ginsberg v. Blacker, supra at 142-143.

4 The source of this information was not proper evidence in support of the defendant’s case. The defendant, who did not appear at any of the hearings in the District Court, wrote two apologetic letters to the judge, essentially urging that there was no need for court orders. The judge made no rulings on the letters but used their receipt as proof of service. The defendant also did not appeal from the initial order or its extensions.

5 The plaintiff requested a no-contact order for her child, stating: “I am afraid [the defendant] would try to force contact with me thru [sic] my daughter.” No good reason appears to disturb the inclusion of that order in all the orders issued in the District Court.