NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-215

H.A.

vs.

S.A.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff filed a complaint for an abuse prevention 

order under G. L. c. 209A, alleging that the defendant, her 

brother, placed her in fear of imminent serious physical harm. 

A temporary order issued ex parte, but, after a two-party 

hearing, a District Court judge concluded that the plaintiff had 

failed to prove that she was suffering from abuse within the 

meaning of c. 209A. The judge thus declined to extend the 

temporary order and ordered that it be vacated. The plaintiff 

appeals.

The plaintiff's testimony, in summary, was as follows. In 

December 2014 the plaintiff obtained a c. 209A order against the 

defendant, following an incident in which he pushed her and put 

his hands around her neck. The plaintiff did not seek an 

extension of that order when it expired in December 2015, and 
2

she then had no contact with the defendant until the summer of 

2022 when their mother became ill. Thereafter, the defendant 

was "aggressive" toward the plaintiff when they encountered each 

other at their mother's house. On one occasion the defendant 

"[s]cream[ed]" at the plaintiff while she was at their mother's 

bedside, telling her that she had "no medical knowledge" and "no 

right to decide anything for . . . mom." The defendant would 

also "[g]lare" at the plaintiff, "shut the door on [her]" when 

she rang the doorbell, and "had cameras to record [her]." The 

plaintiff eventually decided to apply for a c. 209A order after 

she saw a car that she believed was the defendant's drive up to 

the driveway of her house.1

While crediting the plaintiff's testimony about "the 

disdain with which [the defendant] regards his sister," the 

judge concluded that that testimony did not "meet the standard 

for the issuance of a [c. 209A] order." We discern neither an

abuse of discretion nor an error of law in the judge's ruling. 

See Vanna V. v. Tanner T., 102 Mass. App. Ct. 549, 552 (2023)

(appellate review of judge's decision whether to grant c. 209A 

order is for abuse of discretion or other error of law). It was 

the plaintiff's burden to prove that she was in fear of imminent 

serious physical harm and that her fear was reasonable. See id. 

1 On appeal the plaintiff concedes that the defendant presented 

evidence proving that the car was not in fact his.
3

The plaintiff acknowledged at the hearing that she had no 

contact with the defendant for over six years after the prior 

c. 209A order expired in 2015, and that the defendant did not 

physically harm or threaten to harm her in any way once they 

reestablished contact in 2022. Although the plaintiff testified 

that she feared imminent physical harm because of the 

defendant's general aggressiveness towards her, the judge 

permissibly found that, when viewed objectively, the plaintiff's 

fear did not rise to the level necessary to justify the issuance 

of a c. 209A order. See Carroll v. Kartell, 56 Mass. App. Ct. 

83, 86-87 (2002). Indeed, the plaintiff does not argue 

otherwise on appeal.

Instead, the plaintiff argues that the judge applied the 

wrong legal standard by requiring her to prove that her fear of 

imminent physical harm was reasonable. According to the 

plaintiff, the reasonableness requirement applies only to claims 

predicated on the second definition of "abuse" in G. L. c. 209A, 

§ 1, namely, "placing another in fear of imminent serious 

physical harm." The plaintiff maintains that, because she

suffered actual physical harm in 2014, her claim falls under the

first definition of "abuse" in G. L. c. 209A, § 1 -- "attempting 

to cause or causing physical harm" -- and that the appropriate 

standard is therefore whether she has a "continued need for [a 

c. 209A] order to protect [her] from the impact of the violence 
4

already inflicted." Callahan v. Callahan, 85 Mass. App. Ct. 

369, 374 (2014).

We reject the plaintiff's argument for two reasons. First, 

the plaintiff did not preserve the argument in the trial court. 

The complaint alleged that the plaintiff was suffering abuse 

because the defendant "placed [her] in fear of imminent serious 

physical harm." Likewise, the plaintiff's attorney argued at 

the hearing that a c. 209A order should issue because the 

plaintiff was "in reasonable fear of imminent serious physical[] 

injury." Thus, by not raising it to the judge, the plaintiff

waived her claim that a c. 209A order was warranted to protect 

her from the impact of past abuse, even if she could not prove 

that her fear was objectively reasonable. See Wilhelmina W. v. 

Uri U., 102 Mass. App. Ct. 634, 641 (2023) (arguments not raised 

to judge are waived); Vanna V., 102 Mass. App. Ct. at 552 n.2

("Because the plaintiff sought relief under the 'fear of 

imminent serious physical harm' definition of abuse under G. L. 

c. 209A, § 1, we do not address the alternative definitions").

Second, even putting aside waiver, the plaintiff is 

incorrect that the relevant inquiry is whether she has a

"continued need" for a c. 209A order. "Continued need" is the 

standard that applies at a hearing to extend an initial order 

issued after a two-party hearing. See Iamele v. Asselin, 444 
5

Mass. 734, 739 (2005); Callahan, 85 Mass. App. Ct. at 374.2 

Here, the plaintiff did not seek to extend the c. 209A order 

that she obtained in 2014, and several years had passed by the 

time she brought her current complaint in 2022. In this

circumstance, while the past abuse is certainly relevant to 

evaluating the totality of the parties' relationship, the 

plaintiff still had the burden of proving that her fear of 

imminent serious physical harm was reasonable. See Vanna V., 

102 Mass. App. Ct. at 554-555. As we have explained, the judge 

did not abuse her discretion in concluding that the plaintiff 

failed to meet that burden.

Order dated November 9, 2022, 

vacating temporary G. L. 

c. 209A order affirmed.

By the Court (Shin, Brennan & 

Hodgens, JJ.3),

Clerk

Entered: October 31, 2023.

2 Even then, and contrary to the plaintiff's suggestion, 

extension of a c. 209A order predicated on actual physical abuse 

is not automatic. Rather, the judge must consider "the totality 

of the conditions that exist at the time that the plaintiff 

seeks the extension, viewed in the light of the initial 

[c. 209A] order," in determining "the risk of harm to the 

plaintiff should the order expire." Callahan, 85 Mass. App. Ct. 

at 374, quoting Iamele, 444 Mass. at 740.

3 The panelists are listed in order of seniority.