SJC-09404
LESLEY IAMELE
vs. RAYMOND ASSELIN.
Nantucket.
May 3, 2005. - July 22, 2005.
Present:
Marshall, C.J., Greaney, Ireland,
Spina, Cowin, Sosman, &
Cordy, JJ.
Abuse Prevention.
Protective Order.
Complaint
for protection from abuse
filed in the Nantucket Division
of the District Court Department
on June 19, 2002.
A motion
to extend an abuse prevention
order was heard by W. James
O'Neill, J.
The Supreme
Judicial Court granted an
application for direct appellate
review.
Pauline Quirion
(Janet M. Donovan with her)
for the plaintiff.
Sarah Coooleybeck, Jessica
V. Barnett, & David A.
Kluft, for Domestic Violence
Council, Inc., & others,
amici curiae, submitted a
brief.
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 (2005), quoting Local
589, Amalgamated Transit Union
v. Massachusetts Bay Transp.
Auth., 392 Mass. 407, 415
(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 (1995). The plaintiff
must meet that burden by a
preponderance of the evidence.
Id. at 597. 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 (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 (1995);
Commonwealth v. Martinez,
43 Mass. App. Ct. 408, 413
(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 (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
(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.[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
(2005); Pike v. Maguire, 47
Mass. App. Ct. 929, 929 (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 Legislature intended there
to be a standard different
from that governing issuance
of the original order, we
presume it would have said
so. See C.O. v. M.M., 442
Mass. 648, 652 (2004) ("Had
the Legislature intended to
further limit the scope of
'substantive dating or engagement
relationship,' [in G. L.
c. 209A, § 1 (e),]
it would have included any
such limitation in the text
of the statute"). In
the absence of such language,
we have no guidance as to
what a lesser standard would
be. To generate new definitions
of abuse out of whole cloth,
or to borrow novel standards
from other jurisdictions with
statutory language different
from our own, would be an
act of judicial legislation
that would exceed both our
authority and our expertise.
"We will not add words
to a statute that the Legislature
did not put there, either
by inadvertent omission or
by design." Commonwealth
v. Callahan, 440 Mass. 436,
443 (2003), quoting Commonwealth
v. McLeod, 437 Mass. 286,
294 (2002). See C.O. v. M.M.,
supra at 651-652. Given that
the plaintiff seeks the same
protection in asking for either
an initial order or for an
extension, and that an order
would have the same impact
on the defendant in both circumstances,
it is not irrational that
the criteria for obtaining
an extension are similar to
the criteria for obtaining
an initial order.
Thus, we agree with statements
by the Appeals Court that
an initial order "expires
unless extended after a judicial
determination, essentially,
a new finding, that the plaintiff
continues to require protection
from 'abuse' as explicitly
defined in c. 209A, § 1,"
Jones v. Gallagher, 54 Mass.
App. Ct. 883, 889 (2002) ("no
distinction" between
definition of "abuse"
at initial hearing and at
renewal hearing); see Pike
v. Maguire, supra at 929-930
(judge could conclude that
plaintiff "continued
to have the same reasonable
fear of physical harm that
had supported the issuance
of the restraining order sought
to be extended"), and
that "[t]he only criterion
for extending the original
order is a showing of continued
need for the order."
Doe v. Keller, 57 Mass. App.
Ct. 776, 778 (2003), quoting
Pike v. Maguire, supra at
929. See Mitchell v. Mitchell,
supra at 782; Jones v. Gallagher,
supra at 889. See also Guidelines
for Judicial Practice: Abuse
Prevention Proceedings § 6:08
commentary (Dec. 2000). See
Commonwealth v. Molloy, 44
Mass. App. Ct. 306, 309 (1998)
("extension of an annual
order pursuant to § 3 . . .
is . . . by
no means automatic").
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. See Frizado v. Frizado,
420 Mass. 592, 596 (1995).
Typically, the inquiry will
be whether a plaintiff has
a reasonable fear of "imminent
serious physical harm."
G. L. c. 209A, § 1 (b).[3]
In evaluating whether a plaintiff
has met her burden, a judge
must consider the totality
of the circumstances of the
parties' relationship.[4]
Such consideration furthers
the Legislature's purpose
to establish a statutory framework
to "preserv[e] . . .
the fundamental human right
to be protected from the devastating
impact of family violence."
Champagne v. Champagne, 429
Mass. 324, 327 (1999).[5]
The judge is to consider the
basis for the initial order
in evaluating the risk of
future abuse should the existing
order expire. This does not
mean that the restrained party
may challenge the evidence
underlying the initial order.
See Ritchie v. Konrad, 115
Cal. App. 4th 1275, 1290 (2004).
Other factors that the judge
should consider include, but
are not limited to: the defendant's
violations of protective orders,
ongoing child custody or other
litigation that engenders
or is likely to engender hostility,
the parties' demeanor in court,
the likelihood that the parties
will encounter one another
in the course of their usual
activities (e.g., residential
or workplace proximity, attendance
at the same place of worship),
and significant changes in
the circumstances of the parties.
No one factor is likely to
be determinative. Cf. Commonwealth
v. Gordon, 407 Mass. 340,
350 (1990) (criminal conviction
for violating protective order
based on multiplicity of circumstances
that "create[d] a picture
of a volatile situation in
which the possibility of physical
abuse was present").
It is the totality of the
conditions that exist at the
time that the plaintiff seeks
the extension, viewed in the
light of the initial abuse
prevention order, that govern.
2. Denial of extension. In
reviewing the judge's decision
to deny the plaintiff's request
for an extension of her protective
order, "we will not substitute
our judgment for that of the
trier of fact. We do, however,
scrutinize without deference
the propriety of the legal
criteria employed by the trial
judge and the manner in which
those criteria were applied
to the facts." C.O. v.
M.M., 442 Mass. 648, 655 (2004),
quoting Commonwealth v. Boucher,
438 Mass. 274, 276 (2002).
The judge did not define the
burden he believed the plaintiff
had to meet to warrant an
extension of the order. Also,
it is not clear, in the absence
of findings, in what respect
he deemed the plaintiff's
case to be insufficient measured
by the proper standard. In
addition, apart from a determination
that the plaintiff was genuinely
frightened of the defendant,
the judge did not indicate
whether he found credible
the plaintiff's testimony
relating to the reasonableness
or imminence of her fear.
Had the judge credited the
plaintiff's testimony, the
evidence would have been adequate
to justify an extension of
the order under the proper
legal standard.[6]
However, had the judge chosen
not to credit her testimony,
he might have properly decided
not to extend the order. Thus,
without benefit of the judge's
credibility assessment of
the plaintiff (except on one
issue), we cannot determine
whether an extension would
be required on the facts of
this case or alternatively,
whether a denial of the extension
would be within the judge's
discretion. Accordingly, we
remand the case for further
proceedings. See, e.g., Care
& Protection of Ian, 46
Mass. App. Ct. 615, 619-621
(1999) (vacating visitation
order and remanding custody
case because, inter alia,
incorrect legal standard used
as to mother's visitation
rights).
3. Vacation of original order.
The judge's sua sponte vacation
of the original order was
error. The only issue before
the judge was whether the
order should be extended.
"[A]t a renewal hearing,
a judge's discretion is broad:
she may permit the existing
order to expire without renewal;
she may issue a permanent
order; or she may issue an
order of shorter duration
of 'any time reasonably necessary'
to protect the abused person."
Crenshaw v. Macklin, 430 Mass.
633, 635 (2000). See Guidelines
for Judicial Practice: Abuse
Prevention Proceedings § 6:09
commentary (Dec. 2000). However,
judicial discretion is not
so broad as to allow a judge,
sua sponte, to vacate an original
order. The original order,
having been granted two years
earlier, was to expire on
its own terms. No appeal was
taken from that order. Its
underlying basis was not to
be reviewed, nor its validity
second guessed at the extension
hearing.
4. The remedy. As noted above,
the plaintiff is entitled
to a hearing at which the
judge applies the correct
legal standard to the question
whether her original order
ought to be extended. The
order vacating the abuse prevention
order is vacated, and the
matter is remanded for further
proceedings consistent with
this opinion.
So ordered.
FOOTNOTES:
[1] The defendant did
not live on Nantucket at the
time of entry of the original
2002 order.
[2] The 1990 amendment
clarified that a judge also
could enter a permanent order.
St. 1990, c. 403,
§ 3. See Crenshaw v.
Macklin, 430 Mass. 633, 636
(2000).
[3] If the plaintiff were
suffering from attempted or
actual physical abuse, see
G. L. c. 209A, § 1 (a),
or involuntary sexual relations,
see G. L. c. 209A,
§ 1 (c), there is
no question that an extension
should be granted.
[4] See Commonwealth v.
Gordon, 407 Mass. 340, 349
(1990), citing Commonwealth
v. Delgado, 367 Mass. 432,
436-437 (1975) ("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").
See also Lonergan-Gillen v.
Gillen, 57 Mass. App. Ct.
746, 748-749 (2003) ("The
proper exercise of judicial
discretion involves making
a circumstantially fair and
reasonable choice within a
range of permitted options").
[5] See Commonwealth v.
Gordon, supra at 346 ("Judicial
orders issued pursuant to
c. 209A afford abused individuals
the opportunity to avoid further
abuse and provide them with
assistance in structuring
some of the basic aspects
of their lives, such as economic
support and custody of minor
children, in accordance with
their right not to be abused");
Commonwealth v. Basile, 47
Mass. App. Ct. 918, 919 (1999)
("no contact" provisions
of protective order must be
interpreted "broadly;
there are many ways to achieve
a communication").
[6] According to the plaintiff's
testimony and the hearing
transcript, her case presented
many of the same facts that
justified extensions in previous
cases, including serious prior
physical abuse, see Doe v.
Keller, 57 Mass. App. Ct.
776, 779 (2003); violations
by the defendant of previous
no contact
orders, see
Rauseo v. Rauseo, 50 Mass.
App. Ct. 911, 912 (2001),
and Pike v. Maguire, 47 Mass.
App. Ct. 929, 930 (1999),
and an ongoing dispute over
visitation rights, see Rauseo
v. Rauseo, supra, and Pike
v. Maguire, supra. |