Vanna V. v. Tanner T.

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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
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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
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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-
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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
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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
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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.
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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
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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
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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
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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
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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.
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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
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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.