Domestic relations – Chapter 209A – Fear of harm

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Where a G.L.c. 209A abuse prevention order entered against a defendant, the order must be vacated because the plaintiff failed to provide evidence that she was in reasonable apprehension of imminent serious physical harm.

“At the extension hearing, the plaintiff asked the judge to vacate the order. She said she was afraid of the defendant before, but that she ‘can see my husband wants to change to be better,’ and that now she did not fear him and was ‘okay.’ The judge suggested that she could vacate everything but the no-abuse order, to which the plaintiff agreed. Before hearing from the defendant, the judge announced that she was vacating all provisions except for the no-abuse order, which would remain in effect for another year. When the defendant asked to be heard, he pointed out that the complaint alleged no physical harm and reflected only ‘the conflict between [an] unhappy wife and husband.’ …

“Nothing in the record demonstrates that the plaintiff was in fear of imminent serious physical harm. She did not describe a single violent act of the defendant or state that she feared physical harm in the future. ‘Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, where there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm.’ Woolridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998).

“Because the plaintiff’s allegations and testimony did not warrant issuance of the c. 209A order against the defendant, we remand the case and direct the District Court to vacate the order. The court shall notify the appropriate law enforcement agency in writing that the order has been vacated and shall direct the agency to destroy all record of the order. …”

X.W. v. T.S. (Lawyers Weekly No. 81-099-19) (5 pages) (Docket No. 18-P-1137) (May 24, 2019).

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