Smith v. Jones
Smith v. Jones
Opinion of the Court
On this appeal the defendant, whom we shall call Robert, challenges a District Court order permanently prohibiting his contact with the appellee, whom we shall call Agnes, and her daughter. See G. L. c. 209A. Robert is a Florida resident who, at one time, had a relationship with Agnes, a resident of Lexington. We think that the permanent extension was unjustified and order it vacated.
The record reflects that Agnes and Robert, both of whom worked in the same industry and attended the same industry-
None of the messages contained threats of physical harm. Instead, in each message Robert stated that he did not understand why Agnes was ending the relationship or why she would not speak to him and that he wanted very much to speak to her. On a single occasion, Robert mentioned Agnes’s daughter, but that was in the context of saying that he was thinking of Agnes, her father and her daughter on the anniversary of her father’s death and in the aftermath of a chest scan Robert, himself, had had.
On January 4, 2006, Robert left a series of messages suggesting that he was going to come to Agnes’s home in Massachusetts to talk to her. At that point, she sought a restraining order under G. L. c. 209A. The affidavit Agnes filed in support of her application said that “on or about January 4, 2006 . . . [Robert] called me and said he would come to my home this Friday, January 10th, to force me into a conversation” (emphasis in original). Agnes’s affidavit also said that “[t]his message was one of hundreds of calls (voicemails) that [Robert] has made to me over the last few months after I explicitly requested that he not contact me again.”
Agnes further explained in her affidavit that Robert had “tracked her down” while she was vacationing with her family in Aruba, and while she was on a business trip in the Dominican Republic.
The court issued an emergency order on January 4, 2006, and
At Robert’s request the extension hearing was continued to February 2, 2006. Robert failed to appear on that date and the court extended the order for one year.
One year later, on February 1, 2007, Agnes sought a further extension. She filed an affidavit in support of her request, stating that Robert had repeatedly passed by her booth at a March, 2006, New York City trade show, coming within ten feet of her and “smirking.”
Another year passed and then, on April 14, 2008, Agnes filed another motion to extend the order. Robert did not appear at the ensuing hearing but was represented by counsel. Agnes testified, among other things, that she had not been “in touch with”
On appeal, Robert challenges only the permanent order of April 14, 2008. He contends there is no reasonable basis for that order because he has never threatened, harmed, or abused Agnes, in any way. Robert also contends there was no evidence to warrant the District Court judge’s issuance of a permanent extension of the order insofar as it dealt with the plaintiff’s daughter.
Discussion. General Laws c. 209A, § 1, provides that the “abuse” for which a protective order may issue can take several forms.
“In determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of the defendant in light of the attendant circumstances.” Commonwealth v. Gordon, supra. The court looks to actions and words because a reasonable fear of imminent serious physical harm is to be determined by an objective standard. The complainant’s fears “must be more than ‘subjective and unspecified’; viewed objectively . . . ‘the plaintiff’s apprehension that force may be used [must be] reasonable.’ ” Vittone v. Clairmont, 64
A person seeking an initial protective order under G. L. c. 209A must show that at the time of the application he or she “suffers from abuse,” i.e., that at the time of die application he or she has a reasonable fear of imminent serious physical harm produced by the defendant’s words or actions, viewed in light of the attendant circumstances. Iamele v. Asselin, supra at 737 (“A plaintiff seeking an initial order on the basis of abuse as defined in § 1(b) must show that he or she is currently in fear of imminent serious physical harm ... as well as that the fear is reasonable”) (emphasis in original). To obtain an extension of the initial order, he or she must make the same showing, i.e., that he or she has the same reasonable fear at the time the extension is sought. Id. at 739. However, “no presumption arises from the fact that a prior order has issued; it is the plaintiff’s burden to establish that the facts that exist at the time extension of the order is sought justify relief.” Smith v. Jones, 67 Mass. App. Ct. 129, 133-134 (2006). See also Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (2002) (“G. L. c. 209A, § 1(b), focuses on preventing imminent serious physical harm, not merely responding to past abuse”).
In acting on an original G. L. c. 209A application or an application for an extension, a judge has wide discretion, see Iamele v. Asselin, supra at 742, and can properly take into account the entire history of the parties’ relationship, see Pike v. Maguire, 47 Mass. App. Ct. 929, 930 (1999), and any trauma or threat of harm to the applicant’s minor children. Vittone v. Clairmont, supra at 489. Moreover, when faced with an extension request, the judge is not limited to issuance of a permanent extension or none at all. The statute permits extensions for “such additional time as [the judge] deems necessary to protect [the plaintiff] from abuse,” G. L. c. 209A, § 3, as appearing in St. 1983, c. 678, § 4, thus leaving “to the discretion of the judge the time period of any extension of an initial abuse prevention order.” Crenshaw v. Macklin, 430 Mass. 633, 636 (2000).
Here, there was sufficient evidence to establish that, at one time, Robert had been stalking Agnes, itself potentially criminal behavior. See G. L. c. 265, § 43(a). Moreover, there was evidence that Robert called Agnes and came near Agnes at a trade show even after a restraining order had issued. Though
As the record makes clear, however, Robert’s improper behavior was directly tied to his refusal in the immediate aftermath of the breakup to accept that his lengthy romantic relationship was over and that Agnes preferred to stay with her husband. Robert made no telephone calls after his January 5, 2006, promise that he would call no more,
On this record, the defendant’s improper behavior was directly tied to his refusal to accept that the couple’s lengthy romantic relationship was over and that the plaintiff preferred to stay with her husband. As this case well illustrates, making a judgment as to when a previously justified fear ceases to be reasonable can be
In sum, we think that the record does not demonstrate that Agnes had a reasonable fear of imminent physical harm to herself when the permanent order was entered in April, 2008, nor do we think that, even if the record had ever demonstrated a reasonable fear of harm to her daughter, the fear remained reasonable at the time the permanent order entered. Accordingly, entry of the permanent order was error.
Order vacated.
No specific dates are mentioned.
Prior to the hearing, Robert sent a letter to the District Court, asking that the abuse prevention order be dismissed. In the letter, Robert stated (among other things):
“. . .1 never have threatened any harm or violence on [Agnes] or her family. I feel this all came from a personal misunderstanding. I wish only the best for Ms. [Smith], and I hope [Agnes] knows she has absolutely no reason to fear me in any way. I would like to put this all behind us, and move forward, without any legal issues. I have no history of any type of violence in my life, and I believe this order is completely unnecessary and unwarranted .... I assure the court and Ms. [Smith] there is no need for court orders. I thoroughly understand our relationship is over, and I will make no attempt to contact Ms. [Smith].”
Although Agnes’s affidavit stated that Robert passed by the booth “repeatedly,” her attorney’s opposition to Robert’s motion to vacate alleged that Robert passed by the booth twice. There is no necessary conflict between the two.
The judge nevertheless referred to Robert’s letter of the year before.
In a stipulation modifying the order, the parties expressly provided that neither their agreement nor the modification “shall change in any way the rights of the parties to seek an extension or oppose[] any further extensions of this order.”
In material part, G. L. c. 209A, § 1, provides that:
“As used in this chapter the following words shall have the following meanings:
“ ‘Abuse’, 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 another in fear of imminent serious physical harm;
“(c) causing another to engage involuntarily in sexual relations by force, threat or duress.”
The dissent says that there was no “proper evidence” of the promise. See post at n.4. There was. Robert made the promise in a January 5, 2006, telephone call that was recorded, transcribed and introduced by Agnes at the first extension hearing and used by Agnes to show a violation of the initial order.
We recognize that “[t]he fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order to expire or be vacated, or for refusing to issue a new order.” G. L. c. 209A, § 3. But the provision surely does not make the absence of abuse irrelevant.
The plaintiff seeks attorney’s fees. In light of our result, her request is denied.
Dissenting Opinion
(dissenting). I respectfully dissent because the majority’s decision improperly invades the judge’s “broad” discretion in issuing the permanent order in this case. Crenshaw v. Macklin, 430 Mass. 633, 635 (2000).
“The inquiry at an extension hearing is whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect her from the likelihood of ‘abuse’ as defined in G. L. c. 209A, § 1. [Citation omitted.] Typically, the inquiry will be whether a plaintiff has a reasonable fear of ‘imminent serious physical harm.’ G. L. c. 209A, § 1(h).” Iamele v. Asselin, 444 Mass. 734, 739-740 (2005).
After the hearing, the judge stated:
“I’m going to issue a permanent order. I think that although there’s been no physical abuse of any kind, I think that the testimony [the plaintiff] offers and . . . given her demeanor on the stand, it’s quite clear that she is certainly in fear of imminent physical harm, not knowing where [the defendant] is or what he could do to her at any time, whether he could appear in her life at any time unexpectedly.”
The defendant asserts that it was unwarranted for the judge to conclude that the plaintiff had fear of “imminent physical harm” because there was no evidence of physical abuse, and that the plaintiff’s fear is only “generalized apprehension.” To the contrary, the defendant’s conduct was at least confrontational, intimidating, and menacing. Unlike Carroll v. Kartell, 56 Mass. App. Ct. 83, 86-87 (2002), where evidence of persistent telephone calls and other unsolicited efforts to establish contact without menacing language or gestures was insufficient, here the defendant’s tracking of the plaintiff was sufficiently menacing to warrant her fear. While such tracking was not as close up or dramatically confrontational as in Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 146 (2006), it had an insidious quality readily supporting the plaintiff’s reasonable apprehension of fear from the defendant’s “history of harassment, stalking[
“We have no difficulty in upholding the judge’s implicit finding!] that [the defendant’s] conduct, by word and act, . . . was not only ‘menacing by objective standards,’ Commonwealth v. Slaney, 345 Mass. 135, 140 (1962), but created an apprehension of imminent serious physical harm on the part of [the plaintiff] that was objectively reasonable.” Ginsburg v. Blacker, 67 Mass. App. Ct. at 143.
The majority notes that the defendant promised he would make no more telephone calls after January 5, 2006,
This was one of what were alleged to be “hundreds of calls.” Thirty-nine of those calls were transcribed, and submitted at the hearing. A fair reading of the transcriptions indicates the defendant’s torment over the ending of the parties’ relationship and the plaintiffs apparent refusal to talk to him. No threats appear, but the defendant acknowledged the plaintiff’s fears and recognized her being “scared” of him.
The majority acknowledges that there was sufficient evidence that the defendant had been stalking the plaintiff, potentially constituting criminal behavior under G. L. c. 265, § 43(a).
“We note that, for G. L. c. 209A purposes, the conduct proscribed as abuse ‘closely approximates the common-law description of assault’ [citations omitted], Under the common law, ‘it is well established in this State that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault’ (emphasis added). [Citation omitted.]” Ginsberg v. Blacker, supra at 142-143.
The source of this information was not proper evidence in support of the defendant’s case. The defendant, who did not appear at any of the hearings in the District Court, wrote two apologetic letters to the judge, essentially urging that there was no need for court orders. The judge made no rulings on the letters but used their receipt as proof of service. The defendant also did not appeal from the initial order or its extensions.
The plaintiff requested a no-contact order for her child, stating: “I am afraid [the defendant] would try to force contact with me thru [sic] my daughter.” No good reason appears to disturb the inclusion of that order in all the orders issued in the District Court.
Reference
- Full Case Name
- Agnes Smith v. Robert Jones
- Cited By
- 17 cases
- Status
- Published