For a plaintiff to obtain an abuse prevention order, colloquially known as a “restraining order,” against a defendant, the issuing court must make a finding of abuse. For the purposes of 209A, abuse is defined as a) attempting to cause or causing physical harm; b) placing another in fear of imminent serious physical harm; or c) causing another to engage involuntarily in sexual relations. In cases where no attempted or actual physical contact has occurred, the question is generally whether the defendant placed the plaintiff in fear of imminent serious physical harm. Past cases have established that such fear must be reasonable in light of the totality of the circumstances of the parties’ relationship.
In a recent decision, L.O. v. G.O., the Massachusetts Appeals Court vacated a 209A restraining order on grounds that the plaintiff wife was not in reasonable fear of physical abuse by the defendant, her husband. In that case, the parties were married in December of 2017. The following month, the wife, who was in the National Guard, was deployed overseas to Kuwait. The marriage deteriorated and the wife filed for divorce in August of 2018 while she was still overseas. She returned to Massachusetts in November 2018.
On March 12, 2019, the wife sought a 209A restraining order against the husband. The wife’s affidavit in support of her application for the 209A order alleged, among other things, that the husband had traveled to New Hampshire knowing that she would be there, attended her daughter’s graduation knowing that the wife did not want to see him, harassed the wife while she was overseas by sending multiple texts and calling her 72 times within 8 hours, and blocked her from leaving the bathroom several times in the past. She also alleged that the husband had learned where she lived and she was scared his behavior would escalate. The judge granted the restraining order ex parte and scheduled a subsequent hearing for March 26, 2019 on whether to extend the order beyond that date.
Both parties were present at the March 26th hearing. On cross examination, the wife conceded that the husband had not threatened her. In addition, she explained that the New Hampshire incident involved a special ski promotion for veterans that both parties had attended in previous years and the husband did not contact her, nor did she see him, while they were at the event. After the hearing, the judge extended the order for a period of 60 days.
Another hearing was held on May 30, 2019. At that hearing, the wife presented no new allegations in support for her request that the order be extended further, but informed the judge that the parties’ divorce had been postponed and had not yet occurred. The judge extended the order for another 6 months. The husband appealed from the May 30th order. The Appeals Court examined whether the evidence presented by the wife was sufficient to support the finding of abuse required for the issuance of a 209A order. Based on the wife’s affidavit and testimony, it found the only possible basis for the 209A order in this case would have been wife’s alleged fear of imminent serious physical harm.
The Court found no evidence of prior physical contact, threats, or threatening behavior by the husband. Rather, it found that, while the wife’s evidence showed that the husband had engaged in annoying, and even harassing, behavior, such behavior did not provide a reasonable basis to believe that the husband would physically harm the wife or that such harm was imminent. It pointed to the fact that many of the incidents had taken place while the wife was in Kuwait and the events that took place after her return did not involve any physical or visual contact between the parties. The Court stated, “a statement that the plaintiff is scared is not sufficient; the fear must be objectively reasonable in light of the facts adduced.” Holding there was no basis in the record for a finding that the wife’s claim of fear of imminent serious physical harm by the husband was reasonable, the Court vacated the 209A order.
This case is a reminder that a subjective fear is not enough for a 209A order to issue. Such fear also must be objectively reasonable.