Opinion
14-P-1454
05-07-2015
DAVID STOWE v. JESSICA STOWE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant David Stowe appeals from the extension of an abuse prevention order issued at the request of Jessica Stowe. See G. L. c. 209A. David claims the judge lacked authority to extend the abuse prevention order when Jessica had initially requested a civil harassment prevention order instead. See G. L. c. 258E. He challenges the validity of Jessica's affidavit and also claims the evidence did not support the finding of a reasonable fear of imminent serious harm. We affirm.
The parties were married at the time of the hearing, but were separated, and David had filed for divorce.
We use the parties' first names to avoid confusion.
David does not appeal from the issuing of the original ex parte order.
1. The c. 209A abuse prevention order. David claims it was error for the judge to issue a G. L. c. 209A abuse prevention order where Jessica had requested a harassment prevention order under G. L. c. 258E. As David did not object on these grounds at the extension hearing, the claim is waived on appeal. See E.H.S. v. K.E.S., 424 Mass. 1011, 1012 (1997) (pro se G. L. c. 209A litigant is "not excused from the requirement of raising and preserving his claims in the trial court and presenting an adequate record on appeal").
However, even if we were to consider this waived claim, the judge had jurisdiction to issue an order pursuant to G. L. c. 209A because the parties were "[f]amily or household members," that is, "persons who: (a) are or were married to one another; (b) are or were residing together in the same household; (c) are or were related by blood or marriage; [or] (d) having a child in common regardless of whether they have ever married or lived together . . . ." G. L. c. 209A, § 1, as amended through St. 1996, c. 450, § 232. Harassment orders under G. L. c. 258E were "intended to protect victims who could not legally seek protection under G. L. c. 209A." Seney v. Morhy, 467 Mass. 58, 60 (2014). The procedures for seeking an order under c. 209A are essentially the same and, under all of the circumstances of this case, we see no error in the judge's decision to issue an order under the appropriate statute.
2. Affidavit. David also claims that Jessica's statement, submitted with her initial G. L. c. 258E complaint, may not be considered a valid affidavit where Jessica failed to sign that document under the pains and penalties of perjury. As above, David did not object on these grounds at the hearing, therefore this claim is waived on appeal. See E.H.S. v. K.E.S., supra. In any event, Jessica's allegations made in the challenged writing were cumulative of her testimony at the extension hearing, which renders any error nonprejudicial. See Adoption of Cecily, 83 Mass. App. Ct. 719, 724 (2013) .
3. Reasonable fear of imminent serious harm. Finally, David claims that Jessica did not show that she had a reasonable fear of imminent serious harm, and for that reason the extension of the G. L. c. 209A order was invalid. We disagree. Jessica testified to David arriving at and entering her home without authorization, to making threatening telephone calls and text messages, and intimidating her on several occasions; she also described a particular occasion where he "threatened to run [her] over in [her] driveway." These incidents took place over a period of several months, culminating in David's unsolicited visit to her home to drop off an overdue child support payment mere days before she filed her petition. This was sufficient evidence from which the judge could conclude that the risk of harm was imminent and that Jessica's fear was objectively reasonable. There was no abuse of discretion. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006).
Order extending abuse prevention order to June 8, 2015, affirmed.
By the Court (Grainger, Meade & Fecteau, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 7, 2015.