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RestrainingOrderRenewalRequirements
Related Case Law to Cite
Saturday, July 30, 2005
 
This e-mail is about a BIG, BIG case for restraining order extensions.

I predict this case will be used over and over again in restraining order extension cases.

Trust me when I say this is a BIG CLARIFICATION of prior law. The media will not cover it, because it favors mostly men, by demonstrating that restraining orders will not be automatic. (When the protections go UP, count on something in the Boston Globe. Less significant stories about ANTI-SLAPP laws have made it to the Globe.)

But trust me, THIS IS A BIG CASE.

Whenever courts lay down a bunch of criteria, you should use them in oral arguments and briefs. At trial level, your question should touch upon all the criteria that favor your client.

THIS IS A BIG CASE BECAUSE IT DOES ERECT CRITERIA FOR REMOVAL OR EXTENSION OF RESTRAINING ORDERS.

In the actual case, the SJC refused to renew the restraining order.

For the press, your headline should be: “SJC RULES THAT RESTRAINING ORDER RENEWAL IS NOT AUTOMATIC, GIVES FACTORS FOR ISSUANCE”

But here is the big picture after this case:

1. Restraining ORDERS ARE NOT AUTOMATICALLY RENEWED and there is the same standard upon renewal as upon initial application. (This is NOT really new law, see Jones v. Gallagher, BUT THE LAYING OUT OF FACTORS TO BE USED IS VERY MUCH NEW LAW.)

2. Restraining order renewals are now based upon a “Totality of the circumstances test,” balancing the following factors. It is the totality of the conditions that exist at the time that the plaintiff seeks the extension (the first factor), viewed in the light of the initial abuse prevention order, that govern (which are the other listed factors). (Maybe they will be called the “Iamele Factors”) THIS IS THE BIG NEWS OF THIS CASE, THIS BALANCING TEST, WHICH IS VERY LIKELY TO MAKE RESTRAINING ORDER RENEWAL LESS AUTOMATIC AND COMMONPLACE:

a. 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.)

b. the defendant's violations of protective orders (this is a given)

c. ongoing child custody or other litigation that engenders or is likely to engender hostility (try to show that you have left it to the attorneys, and have not had a cross word)

d. the parties' demeanor in court (don’t act violent in court)

e. 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) (my read on this is try to find ways to stay away)

f. and significant changes in the circumstances of the parties. (this is one of those open ended criteria typically thrown at the end of balancing test)

TWO OTHER RULES:

1. “No one factor is likely to be determinative.”

2. This list does not exclude other criteria that might reasonably be relevant.

LESLEY IAMELE vs. RAYMOND ASSELIN.

SJC-09404

SUPREME JUDICIAL COURT OF MASSACHUSETTS

ISSUE: Whether,Mass. Gen. Laws ch. 209A, § 3, which provides for restraining orders and states, "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," has a lower standard because all that is needed is a showing that an extension of time is "reasonbly neccessary," or whether the
plaintiff has the same burden as when initially applying for a restraining order, namely that she is in reasonable fear of serious
physical harm?

HELD: The burden for an extension of time for a restraining order is as greaat as when first applied. If, due to the passage of time and
the lack of severity of the initial incident, it cannot be said that the plaintiff is reasonably in fear of serious physical harm, an
extended restraining order cannot issue. "Reasonably necessary" is just a temporal standard, and does not lower the burden of broof to
get a restraining order.

RINALDO'S NOTES: As a practical point, since time is always a  mitigating factor in the "reasonable fear" criteria, the burden
should always be HIGHER. If the guy said "boo," this might call for no extension. If the guy cut off a leg, though time went by, a
restraining order would still be called for. While time lessened the what constitutes a "reasonable fear," if the initial incident was
serious enough, time will not be enough of a mitigating factor.

May 3, 2005, Argued
July 22, 2005, Decided

PRIOR HISTORY: Nantucket. 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.


CASE SUMMARY

PROCEDURAL POSTURE: Plaintiff girlfriend appealed an order by the Nantucket Division of the District Court Department (Massachusetts)
that denied her request to extend a domestic abuse prevention order pursuant to Mass. Gen. Laws ch. 209A, § 3 and vacated the original
order that had been issued against defendant boyfriend.


MAIN POINTS OF LAW

* A plaintiff seeking an extension of a protective order under Mass. Gen. Laws ch. 209A, § 3, 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. Mass. Gen. Laws ch. 209A, § 3.

* BURDEN OF PROOF FOR RENEWAL: Whether seeking the issuance of an initial protective order or a later extension of that order, the
burden is on the complainant to establish facts justifying its issuance and continuance. The complainant must meet that burden by a
preponderance of the evidence.

* BURDEN OF PROOF FOR INITIAL ORDER: to obtain an initial protective order, a plaintiff must show that he or she is "suffering from
abuse." Mass. Gen. Laws ch. 209A, § 3. In a protective order context, when a person seeks to prove abuse by "fear of imminent
serious physical harm," Massachusetts cases have required in addition that the fear be reasonable. A plaintiff seeking an initial
protective order on the basis of abuse as defined in Mass. Gen. Laws
ch. 209A, § 1(b) must show that he or she is currently in fear of
imminent serious physical harm, as well as that the fear is
reasonable.

BURDEN OF PROOF IN EXTENSION CONTEXT: In a protective order extension context, the language "reasonably necessary to protect the plaintiff"
in Mass. Gen. Laws ch. 209A, § 3 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, the Supreme Judicial Court
of Massachusetts has previously interpreted the words "reasonably necessary" as a temporal standard.

* OPTIONS AT RENEWAL HEARING, TO BE PERMANENT OR NOT?: At a protective order 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.

WHAT "REASONABLY NECESSARY" MEANS: In a protective order extension context, the "reasonably necessary" language of Mass. Gen. Laws ch.
209A, § 3 does not address the criteria that 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.

OBEDIENCE ALONE DOES NOT MEAN THERE WILL BE NO RENEWAL: The language in Mass. Gen. Laws ch. 209A, § 3 simply acknowledges the reality that, in some cases, respondents will obey an initial protective order, and that obedience alone is not a ground for refusing an extension of the initial order.


NEED A NEW JUDICIAL DETERMINATION OF NEED FOR ORDER TO EXTEND: An initial protective 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 Mass. Gen. Laws ch. 209A, § 1, and that the only criterion for extending the original order is a showing of continued need for the order.

EXTENSIONS OF ANNUAL PROTECTIVE ORDERS: Extension of an annual protective order pursuant to Mass. Gen. Laws ch. 209A, § 3 is by no
means automatic. The inquiry at a protective order extension hearing is whether a 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 Mass. Gen. Laws ch. 209A, § 1.
Typically, the inquiry in a protective order extension hearing will be whether a plaintiff has a reasonable fear of "imminent serious physical harm." Mass. Gen. Laws ch. 209A, § 1(b).

IT'S THAT OL' TOTALITY OF THE CIRCUMSTANCES TEST AGAIN (its everywhere in the law): In evaluating whether the plaintiff has met
her burden, a judge must consider the totality of the circumstances of the parties' relationship. Such consideration furthers the Legislature's purpose to establish a statutory framework to preserve the fundamental human right to be protected from the devastating impact of family violence. In a protective order extension hearing, it is the totality of the conditions that exist at the time that a plaintiff seeks the extension, viewed in a light of the initial abuse prevention order, that governs.

FACTORS TO CONSIDER, VERY VERY IMPORTANT STUFF HERE: (Oh, I can see this factors being plopped into future briefs or being used for
questions.) In a protective order extension hearing, a 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. 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.

IF THE ABUSE STILL CONTINUES, EXTENSION IS AUTOMATIC: In a protective order context, if a plaintiff were suffering from attempted or actual physical abuse, Mass. Gen. Laws ch. 209A, § 1(a), or involuntary sexual relations, Mass. Gen. Laws ch. 209A, § 1(c), there is no question that an extension should be granted.

REASONABLE FEAR INVOKES ACTIONS, WORDS, AND CIRCUMSTANCES INWHICH THEY AROSE: In a protective order context, in determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of a defendant in light of the attendant circumstances.

STANDARD TO DETERMINE WHETHER THE JUDGE MESSED UP IN RESTRAINING ORDER CASE: In a protective order context, the proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options.

RESTRAINING ORDERS MAY HAVE PROVISIONS FOR CHILD CUSTODY AND CHILD SUPPORT: Judicial protective orders issued pursuant to Mass. Gen. Laws ch. 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.

NO CONTACT MEANS NO CONTACT: "No contact" provisions of a protective order must be interpreted broadly; there are many ways to achieve a communication.

CHOICES, CHOICES, CHOICES--WHAT THE JUDGE CAN DO AT THE RENEWAL HEARING: At a protective order 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. However, judicial discretion is not so broad as to allow a judge, sua sponte, to vacate an original order.

HERE IS THE CASE:

Complaint for protection from abuse filed in the Nantucket Division of the District Court Department on June 19, 2002.

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.


THE "TOTALITY OF CIRCUMSTANCES AT TIME OF RENEWAL" + "INITIAL ABUSE PREVENTION ORDER" TEST: In a protective order extension hearing, it is the totality of the conditions that exist at the time that a plaintiff seeks the extension, viewed in a light of the initial abuse prevention order, that governs. More Like This Headnote


EXTENSTION IS NEAR AUTOMATIC IF ABUSE IS STILL CONTINUING: In a protective order context, if a plaintiff were suffering from attempted or actual physical abuse, Mass. Gen. Laws ch. 209A, § 1(a), or involuntary sexual relations, Mass. Gen. Laws ch. 209A, § 1(c), there is no question that an extension should be granted. In a protective order context, in determining whether an apprehension of anticipated physical force is reasonable, a court will look to the actions and words of a defendant in light of the attendant circumstances.


THE TEST FOR WHEN THE LOW COURT JUDGE BLEW IT IN A RESTRAINING ORDER CASE: In a protective order context, the proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options.

CUSTODY AND CHILD SUPPORT CAN BE PART OF RESTRAINING ORDER: Judicial protective orders issued pursuant to Mass. Gen. Laws ch. 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.

NO CONTACT MEANS NO CONTACT: "No contact" provisions of a protective order must be interpreted broadly; there are many ways to achieve a communication.

_________________________

NOW HERE IS THE CASE

_________________________
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.