B.N. v. B.L.

• Decision Date: 15 February 2022
• Docket Number: 21-P-324
• Citation: 182 N.E.3d 342 (Table),100 Mass.App.Ct. 1124
• Parties: B.N. v. B.L.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1124

182 N.E.3d 342 (Table)

B.N.

v.B.L.

21-P-324

Appeals Court of Massachusetts.

Entered: February 15, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

B.L. appeals from a one-year extension of an abuse prevention order issued against him pursuant to G. L. c. 209A, § 3, on the complaint of his estranged biological daughter, B.N.² B.N. did not file a brief in this court and did not participate in oral argument. On the record before us, we conclude that at the extension hearing the judge was presented with insufficient evidence to meet the statutory requirement (a reasonable fear of imminent serious physical harm), and we therefore vacate the extension order.

In the affidavit in support of her original application and during the hearing on the extension order, B.N. asserted the following: B.L. is her biological father and "gave [B.N.] up" for adoption when she was four years old. B.N. and B.L. first made contact online when B.N. was seventeen; B.N. was initially "excited to meet [her] biological father," but "immediately felt uncomfortable" because he persistently texted her even though she was not responding. B.L. contacted B.N.’s "godsister" and aunt to find out why B.N. stopped responding to him and insulted B.N.’s family and friends "in order to find out why [B.N.] wasn't talking to [him]." B.N. felt it was "overwhelming and overbearing" that B.L. was trying to contact her through her friends and family. B.N. heard from her godsister's family that B.L. had a history of domestic violence (breaking his fiancée's ribs) and substance abuse. After B.N. informed her parents about the contact with B.L., B.N.’s parents asked B.L. to stop contacting B.N. He ignored their request and sent B.N. a "creepy" video recording (video) featuring a man who shares B.L.’s first name and containing the expression, "what goes around comes around." B.N. perceived the video as a "threat that he was going to come hurt [her] and [her] family."

B.N.’s mother also spoke at the extension hearing and said that B.N. was "in fear being at home alone or being at work or at school that this man is going to show up and try to be part of her life, where really he has no right to any part of her life. He gave her up at four."³

B.L. denied that he had insulted B.N.’s family. He denied the allegations of his substance abuse and domestic abuse, which he maintained were based on false accusations from a former girlfriend of his. B.L. described the video, which he offered to play for the judge, as being about "paying it forward and how kind people can be."

We review for abuse of discretion, see Crenshaw v. Macklin, 430 Mass. 633, 636 (2000), asking whether the judge "made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See Dollan v. Dollan, 55 Mass. App. Ct. 905, 905-906 (2002).

The plaintiff bears the burden of establishing, by a preponderance of the evidence, "facts justifying the issuance and continuance of an abuse prevention order." Frizado v. Frizado, 420 Mass. 592, 596 (1995). See Iamele v. Asselin, 444 Mass. 734, 736 (2005). "[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." Iamele, supra at 734-735. See G. L. c. 209A, § 1 (b ). "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." Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 143 (2006), quoting Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). The victim's "fear or apprehension caused by the defendant's words or conduct must be more than subjective and unspecified; viewed objectively, ... the plaintiff's apprehension that force may be used [must] be reasonable" (quotation and citation omitted). Ginsberg, supra.

To demonstrate a reasonable fear of imminent serious physical harm, a plaintiff need not allege "a history -- or even a specific incident of physical violence." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020). But "[g]eneralized 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). The judge "must consider carefully whether serious physical harm is imminent and should not issue a G. L. c. 209A order simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience." Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995). See Larkin v. Ayer Div. of the...