Opinion
19-P-659
01-30-2020
P.W-P. v. T.W.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, T.W., appeals from an order issued by a judge of the Woburn Division of the District Court Department, which permanently extended an abuse prevention order pursuant to G. L. c. 209A. On appeal, the defendant claims that the judge applied an incorrect standard of review and abused her discretion in permanently extending the abuse prevention order. We affirm.
The parties, who have two children, were divorced in 2008. An ex parte abuse prevention order issued against the defendant in 2011, which was extended for one year with modifications after a hearing with notice. The order was extended for an additional year in 2012, and in 2013, it was extended for five years. In 2018, the order was extended for six months to allow litigation to resolve between the parties in the Probate and Family Court. The defendant is appealing from the January 18, 2019, permanent extension to the order.
1. Standard. The defendant claims that the judge applied an incorrect standard of review because there was no evidence of actual physical harm as required under G. L. c. 209A, § 1 (a ). He also claims that the plaintiff could not be in fear of imminent serious physical harm under § 1 (b ) because he did not violate the abuse prevention order and because the litigation between the parties had concluded. Neither contention has merit.
A plaintiff may seek an abuse prevention order on showing, by a preponderance of the evidence, that he or she is suffering from abuse. See Iamele v. Asselin, 444 Mass. 734, 736 (2005). "Abuse," as defined by G. L. c. 209A, § 1, occurs between family or household members when one "(a) attempt[s] to cause or [is] causing physical harm; (b) plac[es] another in fear of imminent serious physical harm; [or] (c) caus[es] another to engage involuntarily in sexual relations by force, threat or duress." Id.
To determine whether a permanent extension is proper, the judge must find a continued need for the order. See Iamele, 444 Mass. at 738 ("reasonably necessary" language describes duration of extension to order once determined that extension is justified); Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014) ("Faced with an extension request ... 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"); Mitchell v. Mitchell, 62 Mass. App. Ct. 769, 782 (2005) (extension of order proper on showing "continued need"). The judge must evaluate "the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order." Iamele, supra at 741. Importantly, on review, "we will not substitute our judgment for that of the trier of fact." Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).
Here, the judge permissibly found that there had been abuse, the plaintiff continued to suffer from that abuse, and therefore a permanent extension to the abuse prevention order was appropriate. See Callahan, 85 Mass. App. Ct. at 374. At the hearing, the plaintiff testified to the many instances where the defendant had been physically violent toward her. The defendant's essential claim that, in order for there to be "physical harm," G. L. c. 209A, § 1, there needs to be an injury is incorrect. There is no requirement, under G. L. c. 209A or our case law, that a victim must suffer physical injury to extend an order. See Iamele, 444 Mass. at 739 ; Callahan, supra at 373. In McIsaac v. Porter, 90 Mass. App. Ct. 730 (2016), this court emphasized that "where the victim already had been subject to physical harm, ‘the "abuse" is the physical harm caused, and a judge may reasonably conclude that there is a continued need for [an] order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent.’ " Id. at 733, quoting Callahan, supra at 374.
On one occasion, the defendant chased the plaintiff through the house, pinned her against the wall, and punched the wall beside her head. On other occasions, the defendant threw things and screamed, and pounded holes in the wall with a hammer. On yet another occasion, the defendant approached the plaintiff in her car, screamed at her, and punched the window.
Furthermore, no new abuse is required for the extension of an abuse prevention order. See G. L. c. 209A, § 3 ; Mitchell, 62 Mass. App. Ct. at 772 n.6. Moreover, when determining the continuing need for the order, the judge was in the best position to examine the parties and weigh their credibility. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 526 (1997). In that light, there is nothing in the record indicating the judge applied an incorrect legal standard.
2. Permanent extension. The defendant also claims that the judge abused her discretion in permanently extending the abuse prevention order because there was insufficient evidence. We disagree.
A judge has broad discretion in authorizing an extension to an abuse prevention order. See Crenshaw v. Macklin, 430 Mass. 633, 635 (2000). However, there is no presumption that an order will be made permanent, see Jones v. Gallagher, 54 Mass. App. Ct. 883, 889 (2002), and the judge is required to examine "the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in the light of the initial abuse prevention order." Iamele, 444 Mass. at 741. As previously noted, we will not substitute our judgment for that of the hearing judge. See Boucher, 438 Mass. at 276.
Here, the judge was entitled to evaluate the extensive history of past abuse by the defendant and credit the victim's suffering from the effects of that abuse. See Iamele, 444 Mass. at 740-741. Additionally, the judge was permitted to find that the parties' continuing need to communicate with respect to their children requiring special care constituted a unique situation in which permanent protections are appropriate. See id. The evidence properly supported the judge's decision to make the order permanent.
Permanent order dated January 18, 2019, affirmed.
The plaintiff's request for attorney's fees and costs is denied.