judge could "reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent"
How later courts described this case
- judge could "reasonably conclude that there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent"
- "Although a person seeking an abuse prevention order [and extension] based on 'fear of imminent serious physical harm' must always show that he or she is currently in fear of imminent serious physical harm, and that such fear is reasonable, ... the same is not true of a person who seeks an order [or extension] based on having already been subject to physical harm"
- judge must appraise "the impact of the violence already inflicted" where extension is predicated on attempted or actual physical abuse or involuntary sexual relations
- judge properly considered totality of circumstances of relationship including ongoing Probate and Family Court litigation and "hostility likely engendered thereby"
Written by the judges who cited it.
Distinguished
Distinguished by K.O. v. J.S., 92 Mass. App. Ct. 1128 (2018)
However, the Callahan facts are distinguishable from those in this case.
The opinion
Graham, J.
(concurring). At a hearing on a motion for an extension of an original abuse protection order pursuant to G. L. c. 209A, the inquiry 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.” Iamele v. Asselin, 444 Mass. 734, 739 (2005). In determining the issue, a judge must ascertain whether the plaintiff’s “fear of imminent serious physical harm,” G. L. c. 209A, § 1, is reasonable. “[F] actors that the judge should consider include, but are not limited to . . . 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.” Iamele, supra at 740 .
The defendant argues that the plaintiff cannot satisfy the imminence requirement of the statute where he is incarcerated 1 and his release from prison was not imminent at the time of the *379 extension hearing. See Vittone v. Clairmont, 64 Mass. App. Ct. 479 , 485 n.7 (2005). 2 In Vittone, supra, we noted “[t]o the extent that imprisonment is, if not the ultimate restraining order, at least its functional equivalent, it is understandable that [the plaintiff] did not seek to renew the order or make it permanent at the time. . . . Further, given the court’s rescript opinion in Jordan v. Clerk of the Westfield Div. of the Dist. Ct Dept., 425 Mass. [1016,] 1017 [(1997)], there is some question whether a plaintiff in such circumstances could establish the ‘imminence’ of any serious physical harm from one who remains incarcerated.” See Smith v. Joyce, 421 Mass. 520 , 523 n.l (1995) (“A judge must consider carefully whether serious physical harm is imminent [prior to issuing] . . . a G. L. c. 209A order”); Dollan v. Dollan, 55 Mass. App. Ct. 905, 906 (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”); Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 286-288 (2003); Keene v. Gangi, 60 Mass. App. Ct. 667, 669-671 (2004).
In my view, the above-referenced cases do not suggest that the defendant’s confinement in prison at the time of the c. 209A extension hearing is outcome determinative but, rather, is one factor that the judge was required to, and did, consider when deciding whether to extend the order. On this record, the defendant has not demonstrated that the judge abused his discretion, and accordingly, I concur in the results. 3
The defendant also was placed on probation, forthwith and from and after the prison sentences. Both the forthwith and from and after probation included *379 as conditions of probation that the defendant stay away and have no contact, direct or indirect, with the plaintiff and their child.
In Vittone, 64 Mass. App. Ct. at 482 , “[t]he plaintiff had been physically and sexually abused throughout the marriage and the defendant had been threatening to her during the marriage, after their separation, and during the period of time leading up to the trial.” Moreover, while he was in prison, the defendant was held in contempt for having his mother put a lien on family property, and although the terms of his incarceration prohibited him from contacting the plaintiff, the defendant used the Internet and print media to blame the plaintiff for having falsely accused him of a crime. Id. at 482-483 .
The plaintiff and defendant had not been in contact since his arrest in 2010. In addition, there was no evidence presented at the extension hearing that the defendant’s conduct in prison revealed an intent to abuse the plaintiff. However, “[t]he 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.