MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following an ex parte hearing pursuant to G. L. c. 209A, § 4, a District Court judge issued a temporary abuse prevention order against the defendant. The defendant appeals, contending that the judge abused his discretion in granting the order.
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After review, we affirm the initial abuse prevention order.
Background. The plaintiffs affidavit submitted with the complaint, and her testimony at the ex parte hearing, alleged as follows. The plaintiffs son and the defendant were married but separated and had been living apart for approximately five years. The son lived with the plaintiff. In January 2021, the son passed away. Following the sons death, the defendant began “demanding access” to the plaintiffs home to “search [and] remove any items [that] she desires.” According to the plaintiff, the defendant did, in fact, take “many valuable and sentimental possessions” from the plaintiffs home. The plaintiff claimed that, in response, she had to change her locks because the defendant had her sons keys. Upon the plaintiffs refusal to let the defendant inside of the plaintiffs home, the defendant contacted local law enforcement who warned the defendant not to trespass. The next day, the plaintiff went to the local police station and the police contacted the defendant and told her again “not to trespass ․ [and to] stop all harassing [and] ugly phone calls.” Nevertheless, the defendant continued to contact the plaintiff via telephone about ten to twelve more times, including on some occasions at 10 p.m.
On February 1, 2021, the plaintiff sought an abuse prevention order. During her testimony at the ex parte hearing, the plaintiff reiterated that she was “afraid” of the defendant, who she claimed was mentally ill and whose “erratic, [ ] irrational, [and] unpredictable” behavior was “like a switch.” The plaintiff testified to having seen the defendant “physically attack [her] son” but conceded that the defendant had “never [physically] attacked” her. The plaintiff also testified that in the phone calls, the defendant said “ugly, nasty things,” including that the plaintiff was “a demon” who was going to “burn in hell” and that the defendant was “going to get [her].”
The District Court judge granted a temporary order in light of the plaintiffs “representations under oath both in [her] affidavit and in [her] oral presentation” and found that the plaintiff “me[t] the criteria [for the order] at th[at] particular time.” The judge also scheduled a two-party hearing on the same day that the temporary order was set to expire. At the two-party hearing held on February 11, 2021, the judge did not extend the existing order, leaving it “to expire per the terms set forth in the order.”
Discussion. On appeal, the defendant argues that the plaintiff did not meet the criteria for the issuance of an ex parte abuse prevention order because the plaintiffs “fear was not reasonable, imminent, nor [did it] involv[e] serious physical harm.”
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To obtain a temporary ex parte abuse prevention order, a plaintiff must demonstrate a “substantial likelihood of immediate danger of abuse.” MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting G. L. c. 209A, § 4. “Abuse” is defined as “(a) attempting to cause or causing physical harm; (b) placing 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. The circumstances justifying the issuance of the temporary order need only be proven “by a preponderance of the evidence.” MacDonald, supra. “We review the issuance of an order pursuant to G. L. c. 209A for an abuse of discretion or other error of law.” E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013).
Here, the plaintiff sought an ex parte order on the ground that the defendant “placed [her] in fear of imminent serious physical harm.” At the hearing, the plaintiff testified that she was afraid based on the defendants volatile behavior -- that she described as “like a switch” -- and the history of physical aggression toward the plaintiffs son. Despite a request by law enforcement to stop contacting the plaintiff, the defendant continued to engage in a series of aggressive and often late-night calls where she called the plaintiff a “demon” who would “burn in hell” and said that she was “going to get [the plaintiff].” Compare Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 144 (2006) (order affirmed where escalating erratic and unstable behavior including verbal abuse could lead to inference that physical force might be used), with Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002) (order vacated where no menacing language or gesture from defendant put plaintiff in imminent fear of serious physical harm). The defendants continued acts and words, as well as her history of violence, in the context of the volatile situation created by the loss of the plaintiffs son, could support an inference that the plaintiff had a reasonable apprehension that physical force might be used. Ginsberg, supra at 143.
The defendant argues that the plaintiffs fear of imminent serious physical harm was not reasonable because there was insufficient evidence to show that the defendant “intended to use physical force” and because the plaintiff delayed seeking an order until eight days after the first incident. However, the fact that the defendant had not physically harmed the plaintiff does not negate a finding that the plaintiff was in fear of serious imminent physical harm. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020) (there need not “be a history -- or even a specific incident of physical violence” to support finding of reasonable fear of imminent physical harm); M.B. v. J.B., 86 Mass. App. Ct 108, 117 (2014) (“A plaintiff need not wait until an assault occurs to seek protection”).
Moreover, the plaintiff reported that, throughout the eight days between the first incident and the application for an abuse prevention order, the defendant continued to contact the plaintiff ten to twelve additional times, including a call where the defendant threatened that she was “going to get” the plaintiff. The plaintiff went to the District Court for a protective order on the first business day after the last call; there was no delay. Contrast Keene v. Gangi, 60 Mass. App. Ct. 667, 670 (2004) (plaintiffs fear of imminent serious physical harm deemed not objectively reasonable based, in part, on plaintiffs two-week delay in seeking order).
The combination of the defendants erratic behavior, her unwillingness to abide by law enforcements requests to stop contacting the plaintiff, the threat that she was “going to get” the plaintiff (which could reasonably be construed as a threat of physical harm),
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and the defendants history of violence provided a sufficient basis for the judge, in his wide discretion, to determine that the plaintiff had established a reasonable fear of imminent serious physical harm. We cannot say that the judge “made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside of the range of reasonable alternatives” (quotations and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
Conclusion. For these reasons, the ex parte abuse prevention order issued on February 1, 2021, is affirmed.
So ordered.
Affirmed
FOOTNOTES
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. The plaintiff did not submit a brief or participate in this appeal.
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. Although the abuse prevention order expired on February 11, 2021, this case is not moot because the initial order was not terminated with a subsequent order to destroy the records of the vacated order. Because that issuance of an abuse prevention order carries collateral consequences, the plaintiff “has a surviving interest in establishing that the orders were not lawfully issued.” Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).
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. The defendant argues that her statement cannot be interpreted as a physical threat because the plaintiff herself testified that the defendants statements were “just mental.” But while the plaintiff began to testify, “Its just mental,” the rest of that sentence is marked as “indiscernible” in the transcript, leaving the meaning of her testimony unclear.