Smith v. Jones

• Decision Date: 17 August 2006
• Docket Number: No. 05-P-283.,05-P-283.
• Parties: Mary SMITH<SMALL><SUP>1</SUP></SMALL> v. Stephen JONES.<SMALL><SUP>2</SUP></SMALL>
• Court: Appeals Court of Massachusetts

852 N.E.2d 670

67 Mass. App. Ct. 129

Mary SMITH¹ v. Stephen JONES.²

No. 05-P-283.

Appeals Court of Massachusetts, Essex.

Argued March 21, 2006.

Decided August 17, 2006.

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James B. Krasnoo, Andover, for the defendant.

Katie Cook Rayburn for the plaintiff.

Present: COWIN, DREBEN, & MILLS, JJ.

COWIN, J.

We address again efforts to obtain relief in difficult personal circumstances within the limited provisions of G.L. c. 209A (governing certain acts between family or household members that constitute "abuse" as therein defined). The defendant, Stephen Jones, appeals from both an ex parte abuse prevention order and a subsequent extension order that required that he refrain from contact with the plaintiff, Mary Smith. He asserts that the evidence was insufficient in each proceeding to support a finding of abuse as contemplated by the statute, and consequently that the judges below lacked authority to issue protective orders. We agree in part. While the evidence presented initially was adequate to justify an ex parte order, the evidence at the extension hearing was not sufficient to establish that abuse had occurred.

1. Background. We recite the material facts as they appear from the findings below or otherwise from the record. The plaintiff and the defendant met in the sixth grade and, in July, 2002, when each was thirteen, began a dating relationship. In March, 2003, their relationship became intimate, the intimacy continuing when they entered a new school in September, 2003. The sexual aspect of the relationship was voluntary, although at least some of it came about because the plaintiff desired to accommodate the defendant. In January, 2004, the couple broke up, but continued periodic sexual activity until the defendant left school in March, 2004. The night before the defendant left school, he sent the plaintiff an electronic mail message (e-mail) that he wished he could "stab [her] in the heart." However, the plaintiff never took the threat seriously, and never experienced concern that the defendant would actually do her physical harm.

During the dating relationship, the plaintiff suffered from depression and was treated for the condition by psychologists. In December, 2003, the plaintiff wrote an English paper describing her condition and referring to the support she received from the defendant. Nevertheless, after the relationship ended, the plaintiff reflected in her journal that the sexual activity had been "painful" and "wrong," and that the defendant's convincing her that the activity was the right thing to do was rape. In August, 2004, by which time the parties' sexual relationship had been over for five months, the plaintiff heard from a friend that the defendant would be attending a school located in the same community as her own school. She discussed this with her psychologist, decided to tell her mother of the sexual nature of the previous relationship,³ and did so on August 18, 2004.

On August 23, 2004, the plaintiff's mother filed, on behalf of the plaintiff, a "Complaint for Protection From Abuse" pursuant to G.L. c. 209A. An ex parte hearing, at which the plaintiff testified, was held on the complaint that same day. Although much of the tape of the hearing is inaudible, the record does contain testimony by the plaintiff that the defendant had sent the e-mail stating that he wished he could stab her in the heart. She testified also that she feared that the defendant would embarrass her at her school. On the strength of this testimony, a judge issued a temporary abuse prevention order.

On September 3, 2004, a hearing was conducted before a second judge to determine whether the order should be extended. The plaintiff's English paper and the journal entry referred to above were introduced in evidence. In addition, she testified that she feared that the defendant might come to her school, and that being around him caused her to become so nervous that she physically shook. She expanded on this by explaining that, while the defendant had not harmed her or threatened to do so, she was afraid that he could "humiliate" her, say "terrible things" to her, tell others "terrible" and "humiliating" things about her, and thus upset her and "put [her] into a bad mental state." She admitted that she did not fear physical harm at the hands of the defendant as a result of his e-mail. There was no evidence either that the couple had had contact since March, 2004, or that the defendant had given any indication that he would contact the plaintiff in the future.

The judge found that the plaintiff had a reasonable fear that the defendant, once he entered the nearby school, would attempt to resume their sexual relationship, and concluded that this would constitute "abuse" as defined in G.L. c. 209A, § 1, because, given the plaintiff's age, the sexual activity would be nonconsensual. See G.L. c. 265, § 23. He stated in addition that there was "some risk of potential future physical abuse, based on the throat-grabbing at the dance⁴ and the Internet threat." Accordingly, the judge extended the order for one year, a period that ended on September 3, 2005.

2. Discussion. Pursuant to G.L. c. 209A, §§ 3 and 4, a judge may impose certain orders, among others, requiring that a defendant refrain from abusing, refrain from contacting or merely stay away from a plaintiff upon a showing by a preponderance of the evidence, see Iamele v. Asselin, 444 Mass. 734, 736, 831 N.E.2d 324 (2005), that he or she is "suffering from abuse." The complainant must establish facts that justify both the issuance and the continuance of an order. Ibid., citing Frizado v. Frizado, 420 Mass. 592, 596, 651 N.E.2d 1206 (1995). The statute was enacted to address the problem of domestic violence, see Jones v. Gallagher, 54 Mass.App.Ct. 883, 886, 768 N.E.2d 1088 (2002). "Violence brought on by, or exacerbated by, familial relationships was the `mischief or imperfection to be remedied' by c. 209A." Turner v. Lewis, 434 Mass. 331, 334, 749 N.E.2d 122 (2001). The statute is not a general catch-all for the regulation of all human relationships that run into difficulty, no matter how compelling some of those difficulties may objectively be or subjectively seem.

At the outset, the statute applies only to acts "between family or household members," a class that includes individuals who "are or have been engaged in a substantive dating or engagement relationship." G.L. c. 209A, § 1(e), as inserted by St.1990, c. 403, § 2. The defendant acknowledges that he and the plaintiff had a substantive dating relationship. Once that is established, the question is whether "abuse" has been demonstrated. "Abuse" is a defined term that further restricts the statute's reach. It consists of "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." While only G.L. c. 209A, § 1(b), requires explicitly that the harm feared be "imminent," we have interpreted §§ 1(a) and 1(c) to require imminent physical or sexual harm as well. See Dollan v. Dollan, 55 Mass.App.Ct. 905, 906, 771 N.E.2d 825 (2002) ("We also read the Legislature's language in § 1 [`attempting,' `placing,' and `causing'] as revealing an intent to limit the definition of abuse to the present tense"). A determination whether harm is imminent, however, may involve an inquiry whether the defendant has engaged in abusive behavior in the past, and whether such behavior is likely to resume. See, e.g., Litchfield v. Litchfield, 55 Mass.App. Ct. 354, 356, 770 N.E.2d 554 (2002); Dollan v. Dollan, supra at 906, 771 N.E.2d 825; Corrado v. Hedrick, 65 Mass.App.Ct. 477, 483, 841 N.E.2d 723 (2006).

We turn to the record before us to decide whether the plaintiff satisfied her burden of proof under the precise statutory definitions at either the ex parte or the extension hearing. Notwithstanding that both the ex parte and the extension orders have expired, the appeal is not moot. The defendant "could be adversely affected by [the orders] in the event of future applications for an order under G.L. c. 209A or in bail proceedings ... [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record." Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 638, 700 N.E.2d 296 (1998) (citation omitted).⁵

A plaintiff may obtain a temporary protective order in an ex parte proceeding, provided that the defendant is given an opportunity for an evidentiary hearing within ten court business days after the ex parte order is entered. See G.L. c. 209A, § 4. In order to obtain an ex parte order, the plaintiff must demonstrate a "substantial likelihood of immediate danger of abuse." G.L. c. 209A, § 4, as amended by St.1990, c. 403, § 4. To extend an ex parte order, the plaintiff must show that he or she is suffering from abuse, or that a protective order is "necessary to protect her from the likelihood of `abuse.'" Iamele v. Asselin, 444 Mass. at 739, 831 N.E.2d 324. See G.L. c. 209A, § 3; Frizado v. Frizado, 420 Mass. at 596, 651 N.E.2d 1206. 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. See Jones v. Gallagher, 54 Mass.App.Ct. at 889-890, 768 N.E.2d 1088.

At the ex parte hearing, evidence of the defendant's e-mail statement that he wished he could stab the plaintiff in the heart was introduced. Much of the plaintiff's testimony is inaudible on the tape recording, and is therefore unavailable. As appellant, it is the defendant's obligation to provide an adequate record for review, see Commonwealth v. Robicheau, 421 Mass....