DocketNumber: 18-P-124
Citation Numbers: 123 N.E.3d 803, 94 Mass. App. Ct. 1123
Filed Date: 2/26/2019
Status: Precedential
Modified Date: 7/24/2022
The defendant appeals from an order allowing the extension of an abuse prevention order issued pursuant to G. L. c. 209A, § 3 (209A order). He claims that the extension of the 209A order was an abuse of discretion because the evidence did not establish that the plaintiff had an objectively reasonable fear of imminent serious physical harm from the defendant at the time the order was extended. We affirm.
Background. We summarize the factual background. On September 29, 2015, the plaintiff applied for an emergency ex parte 209A order. The affidavits the plaintiff submitted in connection with her application asserted that her former boyfriend had (1) physically and sexually assaulted her, (2) stalked her consistently since their break up two years earlier, and (3) sent her a text message in which he threatened to come to her school to harm her.
Discussion. At a hearing to extend a 209A order, the burden is on the plaintiff to establish facts justifying the extension by a preponderance of the evidence. See Iamele v. Asselin,
If the extension request is based on past physical abuse, as it was in this case, "the failure of the plaintiff to have an objectively reasonable fear of imminent serious physical harm does not by itself preclude extension of an abuse prevention order. Faced with an extension request in such a circumstance, the judge must make a discerning appraisal of the continued need for an abuse prevention order to protect the plaintiff from the impact of the violence already inflicted." Callahan v. Callahan,
Here, the abuse alleged in the original complaint was serious. The plaintiff described a pattern of verbal and physical abuse during her relationship with the defendant which included physical assaults and rape. According to the plaintiff, the defendant stalked her after their relationship ended causing her to suffer "PTSD[,] [n]ight terrors, crippling anxiety, panic attacks and flashbacks." Considering this evidence and the nature of the underlying physical abuse, we cannot reasonably say that the judge failed to make a "discerning appraisal of the continued need for an abuse prevention order to protect the plaintiff from the impact of the violence already inflicted." Callahan, supra. Accordingly, we discern no abuse of discretion.
Order entered on October 25, 2017, extending abuse prevention order affirmed.
The plaintiff prepared two affidavits -- one in support of her initial ex parte application for a 209A order and a second on the following day when she appeared in the Malden District Court.