Opinion
15-P-478
08-08-2016
DIANA VIENS v. BRIAN VIENS.
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
On March 16, 2014, the plaintiff, Diana Viens, successfully applied for an emergency ex parte G. L. c. 209A abuse prevention order (209A order) against her husband, the defendant, Brian Viens. On March 17, 2014, it was extended for thirty days and, on April 18, 2014, for one year. The defendant appeals, claiming that there was insufficient evidence of abuse to support the issuance of a 209A order. We agree.
The defendant properly appealed the order and the extensions.
Although the ex parte order and the extensions have since expired, the appeal is not moot as the defendant "has a surviving interest in establishing that the orders were not lawfully issued." Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006), quoting from Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).
To obtain a 209A order, a plaintiff has the burden of proving, by a preponderance of the evidence, that she "reasonably apprehend[ed] 'imminent serious physical harm.'" Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 144 (2006), quoting from G. L. c. 209A, § 1. In assessing reasonableness, "a court will look to the actions and words of the defendant in light of the attendant circumstances." Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). "Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998). As a matter of law, the evidence in this case did not give rise to a reasonable fear of imminent physical harm.
The altercation between the parties here was verbal, with the exception of the defendant's spit, which indisputably did not touch the plaintiff. It was markedly less severe than the abuse in Ginsberg, a case upon which the plaintiff heavily relies. In Ginsberg, the defendant arrived unannounced, and in a fit of rage followed his ex-wife, who was attempting to evade him, around the house, flailing his hands in her face, and yelling in a manner that caused spit to land on her face. 67 Mass. App. Ct. at 141-142. The defendant also told his ex-wife that she and her entire family "should be shot." Id. at 146. Here, there was no evidence that the defendant implicitly or explicitly threatened the plaintiff with physical harm. While the defendant's conduct was by no means admirable, there is a "higher bar for the issuance of a protective order than is found in the facts of this case." Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). See Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 288 (2003).
The plaintiff sought the 209A order after a verbal argument with the defendant concerning household chores and child care responsibilities. The defendant told her that because he was tired, he would not watch the baby, and also that he would not assist in the painting of the parties' home. During the conversation, the defendant used profane language, raised his voice, and "spit in [the plaintiff's] direction." When asked if the defendant had previously committed abuse, the plaintiff replied, "We've had a few altercations, but noth -- like, it was -- we resolved it." She also explained that the defendant had, in the past, yelled at their three year old daughter, but "never hit her or anything."
The orders issued March 16, 2014, March 17, 2014, and April 18, 2014, are vacated. The judge of the East Boston Division of the Boston Municipal Court Department shall cause a notification and direction to be sent, conformably with G. L. c. 209A, § 7, third par., for the destruction of all records of the vacated orders.
The defendant failed to raise the issue of judicial bias in the trial court. For that reason, we need not consider it on appeal. See Adoption of Pierce, 58 Mass. App. Ct. 342, 348-349 (2003). Even if we were to consider the issue, however, on this record, we see no concrete harm to the defendant's case caused by the judge's actions. See Poly v. Moylan, 423 Mass. 141, 150 (1996).
So ordered.
By the Court (Carhart, Blake & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: August 8, 2016.