|
|
|
|
Appeals
Court of Massachusetts. |
|
Mary
DOLLAN |
|
vs. |
|
Jane DOLLAN.
[FN1] |
|
FN1.
The names are pseudonyms. |
No. 00-P-1907. |
July
22, 2002.
|
|
Adult daughter sought ex parte abuse
prevention order against her mother.
The trial court issued restraining
order. Mother appealed. The Appeals
Court held that: (1) appeal was
not mooted by expiration of restraining
order, and (2) evidence did not
support issuance of order on allegation
of past abuse.
Vacated.
|
|
Headnotes |
|
[1]
KeyCite Notes |
|
62
Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k21
k. Review. Most
Cited Cases
|
|
Party against whom ex parte abuse
prevention order was issued had
a continuing interest in establishing
that order was not lawfully issued,
and thus, her appeal from that order
was not rendered moot by order's
expiration, where she could be adversely
affected in the event of a future
application for a restraining order
against her or in bail proceedings.
M.G.L.A.
c. 209A, § 1
et seq.
|
|
[2]
KeyCite Notes |
|
62
Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k15.1
k. In General. Most
Cited Cases
|
|
62
Breach of the Peace
KeyCite Notes
62k15
Security or Order to Keep Peace or
Protect Family
62k20
k. Application and Proceedings Thereon.
Most
Cited Cases |
|
A
proceeding for an abuse prevention
protective order is a civil rather
than a criminal proceeding; however,
such an order can have criminal penalties.
M.G.L.A.
c. 209A, § 1
et seq. |
|
[3]
KeyCite
Notes
62
Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k17
k. Grounds for Requiring.
Most Cited Cases |
|
In
deciding whether to issue an abuse
prevention protective order for
placing another in fear of imminent
serious physical harm, a judge must
consider carefully whether serious
physical harm is imminent; generalized
apprehension, nervousness, feeling
aggravated or hassled, that is,
psychological distress from vexing
but nonphysical intercourse, when
there is no threat of imminent serious
physical harm, does not rise to
the level of fear of imminent serious
physical harm. M.G.L.A.
c. 209A, § 1(b).
|
|
[4]
KeyCite
Notes
|
|
62
Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k16
k. Nature of Remedy.
Most Cited Cases
|
|
Issuance
of an abuse prevention protective
order for placing another in fear
of imminent serious physical harm
focuses on preventing imminent serious
physical harm, not merely responding
to past abuse. M.G.L.A.
c. 209A, § 1(b).
|
|
[5]
KeyCite
Notes |
|
62
Breach of the Peace
62k15
Security or Order to Keep Peace or
Protect Family
62k17
k. Grounds for Requiring.
Most Cited Cases |
|
Evidence
did not support issuance of abuse
prevention protective order against
mother on behalf of adult daughter
on allegation of past abuse; daughter
was not placed in fear of imminent
serious physical harm by her mother's
act of calling police to contact
daughter and inform her that mother
was worried about her, by any past
abuse that occurred when daughter
was a child or teenager, or by possibility
that mother would attempt to coerce
daughter into living with her. M.G.L.A.
c. 209A, § 1(b).
**825
*906
Matthew
S. Robinowitz,
Fitchburg, for the plaintiff.
|
|
RESCRIPT.
[1]
*905
The plaintiff applied for an ex
parte abuse prevention order, pursuant
to G.L. c. 209A, against her mother,
the defendant, which was issued
on June 7, 2000. After a **826
hearing on June 16, 2000, the order
was extended for one year.
[FN2]
The defendant appealed, contending
that there was insufficient evidence
to justify the issuance of the restraining
order. We agree. |
|
FN2.
Although the abuse prevention order
expired on June 15, 2001, the defendant's
appeal is not moot. The defendant
could be adversely affected by the
c. 209A order on her record in the
event of a future application for
a c. 209A order or in bail proceedings.
See Frizado
v. Frizado, 420 Mass. 592, 593-594,
651 N.E.2d 1206 (1995);
Wooldridge
v. Hickey, 45 Mass.App.Ct. 637,
638, 700 N.E.2d 296 (1998).
She has a continuing interest in
establishing that the order was
not lawfully issued. See ibid. |
|
1.
Factual background.
The order was sought after the defendant
had contacted
the Lynn police department and requested
that they contact the plaintiff.
The police had in turn contacted
the plaintiff and informed her that
the defendant was concerned and
wanted the plaintiff to contact
her family. In her affidavit accompanying
her application, the plaintiff,
then twenty nine years old, alleged
that the defendant was "one
of [her] abusers from [her] early
childhood and teenage years,"
that physical, sexual, and emotional
abuse had been involved, and that
the defendant's attempts to contact
her caused her emotional distress.
She further feared that the defendant
would try to "coerce"
her back into living with the defendant
"in a very abusive environment."
The plaintiff and defendant had
not been in contact for four years. |
|
[2]
2.
Statutory background.
General Laws c. 209A allows a person
suffering from abuse from a family
or household member to file a complaint
requesting protection from that abuse.
G.L.
c. 209A, § 3.
A chapter
209A
proceeding is a civil rather than
a criminal proceeding. Frizado
v. Frizado, 420 Mass. 592, 596
n. 3, 651 N.E.2d 1206 (1995).
However, an order issued pursuant
to G.L. c. 209A can have criminal
penalties. Jones
v. Gallagher, 54 Mass.App.Ct.
883, 886, 768 N.E.2d 1088 (2002).
Thus, a c. 209A order can have serious
civil and criminal consequences for
a defendant. |
|
[3]
[4]
"Abuse"
is defined to include any of the
following occurrences between family
members: "(a) attempting
to cause or causing physical harm;
(b)
placing another in fear of imminent
serious physical harm; [or] (c)
causing another *906
to engage involuntarily in sexual
relations by force, threat or duress."
G.L.
c. 209A, § 1.
Here, the judge appears to have
based the issuance of the order
on part (b) of the definition.
In deciding whether to issue such
a c.
209A
order, a judge must consider carefully
whether serious physical harm is
imminent. Smith
v. Joyce, 421 Mass. 520, 523
n. 1, 658 N.E.2d 677 (1995).
"Generalized apprehension,
nervousness, feeling aggravated
or hassled, i.e., psychological
distress from vexing but nonphysical
intercourse, when there is no threat
of imminent serious physical harm,
does not rise to the level of fear
of imminent serious physical harm."
Wooldridge
v. Hickey, 45 Mass.App.Ct. 637,
639, 700 N.E.2d 296 (1998),
citing Larkin
v. Ayer Div. of the Dist. Ct. Dept.,
425 Mass. 1020, 681 N.E.2d 817 (1997).
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. See
United
States v. Wilson, 503 U.S. 329,
333, 112 S.Ct. 1351, 117 L.Ed.2d
593 (1992)
("Congress' use of a verb tense
is significant in construing statutes").
Language in §
3
also suggests that c.
209A
was designed to allow persons presently
"suffering" from abuse
to seek relief. Therefore, we conclude
that G.L.
c. 209A, § 1(b),
focuses on preventing imminent
**827
serious physical harm, not merely
responding to past abuse. |
|
]
3.
Discussion.
The defendant's conduct immediately
preceding the issuance of the order,
calling the Lynn police department,
cannot reasonably be said to have
placed the plaintiff in fear of
"imminent serious physical
harm." G.L.
c. 209A, § 1(b).
To the extent there was past abuse,
it allegedly took place when the
plaintiff was a child or teenager.
The plaintiff failed to present
any evidence that the abuse might
resume if the
c. 209A
order was not issued. Furthermore,
the plaintiff's fear that the defendant
might try to "coerce"
her into living with the defendant
is the kind of "generalized
apprehension" that the courts
have refused to recognize as abuse
under G.L. c. 209A. See Wooldridge
v. Hickey, supra.
The issuance of this c. 209A order
on allegations of past abuse alone,
without a fear of imminent physical
harm, was inconsistent with the
language of G.L. c. 209A. We thus
conclude that there was no evidentiary
basis on which to have issued the
c. 209A order.
Order vacated. |
|
Mass.App.Ct.,2002. Dollan
v. Dollan
55 Mass.App.Ct. 905, 771 N.E.2d 825
END OF DOCUMENT |
|
|
|
|
|