Iamele v. Asselin

Decision Date22 July 2005
PartiesLesley IAMELE v. Raymond ASSELIN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Pauline Quirion, Boston (Janet M. Donovan, Fitchburg, with her) for the plaintiff.

Sarah Cooleybeck, Jessica V. Barnett, Boston, & David A. Kluft, for Domestic Violence Council, Inc., & others, amici curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

COWIN, J.

We are asked to define the standard for extension of a domestic abuse prevention order pursuant to G.L. c. 209A, § 3. The plaintiff, Lesley Iamele, appeals from the denial of her request to extend such an order previously issued against the defendant, Raymond Asselin. It is unclear what standard the judge used in denying her request for an extension of the order. We granted the plaintiff's application for direct appellate review. We hold that a plaintiff seeking an extension of a protective order must make a showing similar to that of a plaintiff seeking an initial order — most commonly, the plaintiff will need to show a reasonable fear of imminent serious physical harm at the time that relief, whether in the form of an original order or an extension of an order, is sought. G.L. c. 209A, § 3. In the absence of specific findings and conclusions of law, we are unable to determine the standard the judge applied here; we remand the case for a further hearing.

Facts. The plaintiff and the defendant were engaged in a domestic relationship that produced a son. According to the plaintiff's testimony at the renewal hearing, the defendant had abused her physically approximately two to four years previously, including breaking her ankle and shoulder, striking her in the face, and punching out her teeth.

The plaintiff had sought and received a protective order against the defendant pursuant to G.L. c. 209A. The order expired on June 17, 2002. The day after the order expired the defendant telephoned the plaintiff and became "highly agitated and threatening." Realizing that the prior order had expired, the plaintiff sought and received a new protective order. That order was extended the following year, see G.L. c. 209A, § 3 (allowing repeated annual extensions), until June 14, 2004.

On that date, the plaintiff again sought renewal of the order for another year. At a hearing the plaintiff supported her request by testifying about several telephone calls the defendant had placed to her work and home during the previous year, the most recent of which was six months before the hearing. According to the plaintiff, the defendant initially would state that he loved her and wanted to reconcile with her, and then he "would get nasty." The telephone calls to her place of work caused her to lose her job. Due to these telephone calls and the prior physical abuse, the plaintiff stated, "I am in fear of this man. If I don't have this [r]estraining [o]rder, he's going to kill me like he's threatened to." The defendant did not testify at the hearing, apart from stating, in response to an inquiry from the judge, that he did not live on Nantucket, as does the plaintiff.1 His attorney maintained that the defendant wished to have contact only in order to reestablish his relationship with his son, of whom he had custody until 2002. At the time of the hearing, the defendant was on pretrial probation in criminal cases resulting from his violations of the protective order the plaintiff had obtained.

Despite finding that "this woman clearly is in fear no matter what," the judge refused to extend the order. The record does not indicate the reason for the judge's refusal, and we cannot discern whether he agreed with the defense that the plaintiff was required to show a reasonable fear of imminent serious physical harm for the order to be extended. The defendant's counsel stated, "[A]s Your Honor has already said," the "plaintiff has to prove by a preponderance of the evidence that she is actually in fear of imminent serious harm from the defendant. . . . Her fear must be reasonable," and the judge later replied, "I know what the law is . . . . I know what my . . . duty is." The judge refused to extend the order because the plaintiff "ha[d] not met the burden," but did not specify what that burden was. While he recognized the plaintiff's fear as genuine, he questioned "whether [the plaintiff's fear was] reasonable or not" and made no mention of the imminence of the potential future abuse. The judge not only declined to extend the c. 209A order, but also vacated it sua sponte.

Discussion. 1. Statutory language and purpose. We must consider whether the standard for granting an extension of a protective order is the same as that for granting an initial order. In construing the statute, we adhere to the rule that "[s]tatutory language is the principal source of insight into legislative purpose." Adoption of Marlene, 443 Mass. 494, 497, 822 N.E.2d 714 (2005), quoting Local 589, Amalgamated Transit Union v. Massachusetts Bay Transp. Auth., 392 Mass. 407, 415, 467 N.E.2d 87 (1984).

Whether seeking the issuance of an initial protective order or a later extension of that order, "[t]he burden is on the complainant to establish facts justifying [its] issuance and continuance." Frizado v. Frizado, 420 Mass. 592, 596, 651 N.E.2d 1206 (1995). The plaintiff must meet that burden by a preponderance of the evidence. Id. at 597, 651 N.E.2d 1206. To obtain an initial protective order, a plaintiff must show that he or she is "suffering from abuse." G.L. c. 209A, § 3. "Abuse" is defined as "one or more of the following acts . . . (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." G.L. c. 209A, § 1. When a person seeks to prove abuse by "fear of imminent serious physical harm," our cases have required in addition that the fear be reasonable. See Commonwealth v. Gordon, 407 Mass. 340, 349-350, 553 N.E.2d 915 (1990) (analogizing to common-law assault in determining whether complainant had reasonable apprehension that defendant might physically abuse her). See also Commonwealth v. Robicheau, 421 Mass. 176, 180 n. 4, 654 N.E.2d 1196 (1995); Commonwealth v. Martinez, 43 Mass.App. Ct. 408, 413, 683 N.E.2d 699 (1997). 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, see Dollan v. Dollan, 55 Mass.App.Ct. 905, 906, 771 N.E.2d 825 (2002), as well as that the fear is reasonable.

By contrast, the plain language of G.L. c. 209A, § 3, which also governs extension proceedings, does not provide any similar directive concerning the standard for extension of an initial protective order. Section 3 states in pertinent part: "If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order" (emphasis supplied). The plaintiff suggests that the standard articulated in the statute is to be derived from the "reasonably necessary" language, and that it encompasses different criteria from those required to obtain an initial protective order. We disagree. The language "reasonably necessary to protect the plaintiff" is not intended to alter the criteria for issuing a protective order. That phrase simply modifies "additional time," the words immediately preceding it. In addition, the words "reasonably necessary to protect the plaintiff" are followed immediately by the words "or to enter a permanent order," also a matter of duration. Indeed, we have previously interpreted the words "reasonably necessary" as a temporal standard. See Crenshaw v. Macklin, 430 Mass. 633, 635, 722 N.E.2d 458 (2000) ("at a renewal hearing, a judge[] . . . may issue a permanent order; or . . . an order of shorter duration of `any time reasonably necessary' to protect the abused person"). See also Guidelines for Judicial Practice: Abuse Prevention Proceedings § 6:09 commentary (Dec. 2000).

We have also stated previously that the legislative history of § 3 supports reading the words "reasonably necessary" as defining the duration of the extension order. Before 1990, the statute authorized a judge to extend initial orders 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. We have interpreted that earlier language as leaving "to the discretion of the judge the time period of any extension of an initial abuse prevention order." Crenshaw v. Macklin, supra at 636, 722 N.E.2d 458.2 Thus, the "reasonably necessary" language does not address the criteria a plaintiff must show in order to obtain an extension, but rather the duration of such an extension once it is determined that an extension is justified.

There is only one reference in the statute to the showing required for extension of an initial order: "The 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 . . . ." G.L. c. 209A, § 3. See Mitchell v. Mitchell, 62 Mass.App.Ct. 769, 773-774, 821 N.E.2d 79 (2005); Pike v. Maguire, 47 Mass.App.Ct. 929, 929, 716 N.E.2d 686 (1999). This language does not change the criteria for granting an order. It simply acknowledges the reality that, in some cases, respondents will obey the initial order, and that obedience alone is not a ground for refusing an extension of the initial order.

Section 3 of the statute, the only section that discusses extensions, contains no other language bearing on the nature of the proof to be applied to a plaintiff's request for an order's extension. Had the...

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