DocketNumber: No. 08-P-1165
Citation Numbers: 75 Mass. App. Ct. 540
Judges: Cypher, McHugh
Filed Date: 10/22/2009
Status: Precedential
Modified Date: 6/25/2022
(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.”
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[
“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.
The majority notes that the defendant promised he would make no more telephone calls after January 5, 2006,
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.
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).
“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.
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.
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.