R.N. v. Y.G. ( 2024 )

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
23-P-737
R.N.
vs.
Y.G.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Y.G., appeals from a one-year abuse
prevention order issued by a District Court judge pursuant to
G. L. c. 209A (209A order). She argues that there was an
insufficient factual basis for the order. We affirm.
Background. In support of his application for a 209A
order, the plaintiff, R.N., alleged that he was in fear for his
safety due to the erratic and violent outbursts of the defendant
as well as her threat to shoot him and to send her boyfriend to
kill him. The judge issued an ex parte order.
At the two-party hearing held in March 2023, the judge
heard testimony from both parties. The plaintiff alleged that
he was "terrified" and "scared" because the defendant had a
firearm license and told him that she was "going to shoot [him]
in the kneecap." The defendant denied the allegations and
claimed that the plaintiff sought the order in retaliation for a
209A order that she had previously obtained against him.
Crediting the plaintiff's testimony, the judge extended the 209A
order for one year, and the defendant now appeals claiming that
the judge erred by issuing an order with an insufficient factual
basis.
Discussion. At an initial two-party hearing, "[t]he burden
is on the [plaintiff] to establish facts justifying the issuance
and continuance of an abuse prevention order." Frizado v.
Frizado, 420 Mass. 592, 596 (1995). "An ex parte order is
entitled to no weight and the issues must be relitigated anew at
the hearing after notice if the defendant appears." Yasmin Y.
v. Queshon Q., 101 Mass. App. Ct. 252, 258 n.11 (2022).
"Although it is not expressly stated in G. L. c. 209A, it
follows from custom and practice in civil cases that a G. L.
c. 209A plaintiff must make a case for relief by a preponderance
of the evidence." Frizado, supra at 597. "We review the
issuance of an order pursuant to G. L. c. 209A for an abuse of
discretion or other error of law." E.C.O. v. Compton, 464 Mass.
558, 561–562 (2013). A judge's discretionary decision
constitutes an abuse of discretion where the judge makes a
"clear error of judgment" that "falls outside the range of
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reasonable alternatives" (citation omitted). L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The defendant's claim is foreclosed by the judge crediting
the plaintiff's testimony. In particular, the plaintiff
testified that he was "terrified" and "scared" because the
defendant had a firearm license and told him that she was "going
to shoot [him] in the kneecap." See G. L. c. 209A, § 1 (abuse
includes "placing another in fear of imminent serious physical
harm"). Given the circumstances presented, including the
defendant's testimony that she just recently had her firearm
license returned, such a fear was reasonable. See Iamele v.
Asselin, 444 Mass. 734, 737 (2005). "Credibility determinations
and an evaluation of the sufficiency of all the evidence are
matters for the hearing judge to decide." S.T. v. E.M., 80
Mass. App. Ct. 423, 429 (2011). We accord the "utmost
deference" to credibility determinations of the judge who heard
the testimony and observed the demeanor of the witnesses
(citation omitted). Constance C. v. Raymond R., 101 Mass. App.
Ct. 390, 394 (2022).
Contrary to the defendant's contention on appeal, the
person seeking the order need not provide more tangible proof of
abuse beyond credible testimony. See Commonwealth v. Santos,
100 Mass. App. Ct. 1, 3 (2021) (credible testimony "standing
alone" is sufficient to meet burden of proof). Here, the judge
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carefully considered the parties' competing testimony and
credited that offered by the plaintiff. No additional evidence
was required. "At bottom, the judge had the benefit of
evaluating the plaintiff's credibility through [his] testimony
and demeanor, and [the judge] was entitled to credit [his]
testimony concerning [his] fear." Constance C., 101 Mass. App.
Ct. at 397. Our limited role as a reviewing court is not to
reassess credibility determinations or to decide whether we
would have issued the order in the first instance; rather, our
appellate role is to review the record for "an abuse of
discretion or other error of law." E.C.O., 464 Mass. at 561–
562. We discern neither.
Abuse prevention order dated
March 21, 2023, affirmed.
By the Court (Meade,
Englander & Hodgens, JJ.1),
Clerk
Entered: August 26, 2024.
1 The panelists are listed in order of seniority.
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