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-186

R.D.

vs.

W.H.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the extension of an abuse 

prevention order issued pursuant to G. L. c. 209A, § 3 (209A 

order) and from the subsequent modification, rather than 

termination, of the order. We affirm.

Background. The parties moved in together in March 2019, 

and the plaintiff gave birth to their child in August 2019. In 

October 2019, the defendant was indicted in the United States 

District Court for the District of Massachusetts on a variety of 

drug and gun charges. The defendant pleaded guilty in March 

2022, and was awaiting sentencing. On May 9, 2022, the 

plaintiff filed a complaint for a 209A order on behalf of 

herself and the child, alleging that the defendant had placed 

her in fear of imminent serious physical harm. A District Court 

judge issued the 209A order ex parte. On May 23, 2022, the 
2

defendant was charged with violating the 209A order. On June 6, 

2022, an extension hearing was held on the 209A order at which 

both parties were represented by counsel. The plaintiff 

testified but the defendant did not, apparently because of the 

pending criminal charges. The judge extended the order for one 

year. In July 2022, the defendant received a Federal prison 

sentence of more than seven years. In August 2022, he filed a 

motion to terminate the 209A order or, in the alternative, to 

modify it. After a hearing on September 9, 2022, a different

judge (motion judge) modified the order to allow the defendant 

to have some contact with the child by telephone and mail.

Discussion. 1. Sufficiency of evidence. The defendant 

contends that the judge abused his discretion by extending the 

209A order and applied an incorrect legal standard at the 

extension hearing. See Constance C. v. Raymond R., 101 Mass. 

App. Ct. 390, 394 (2022), quoting E.C.O. v. Compton, 464 Mass. 

558, 562 (2013) (extension of 209A order reviewed "for an abuse 

of discretion or other error of law"). We disagree.

"The standard for obtaining an extension of an abuse 

prevention order is the same as for an initial order -- 'most 

commonly, the plaintiff will need to show a reasonable fear of 

imminent serious physical harm at the time that relief . . . is 

sought.'" S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019), 

quoting McDonald v. Caruso, 467 Mass. 382, 386 (2014). "[F]or 
3

the plaintiff's fear of imminent serious physical harm to be 

reasonable, it is not necessary that there be a history –- or 

even a specific incident of physical violence." Noelle N. v. 

Frasier F., 97 Mass. App. Ct. 660, 665 (2020). In evaluating 

whether the plaintiff has met her burden of proving that she has 

a reasonable fear of imminent serious physical harm, the judge 

"must consider the totality of the circumstances of the parties'

relationship." Iamele v. Asselin, 444 Mass. 734, 740 (2005).

According to the plaintiff's affidavit in support of the ex 

parte order, earlier that day, during a telephone call, the 

defendant yelled at her and told her that he was going to her 

mother's house to attack the plaintiff's brother. The plaintiff 

further alleged that the defendant had been "diagnosed with 

bipolar disorder/depression," had a history of violence toward 

his former wife, had access to weapons in the past, and she 

"suspected that he [was] on steroids." 

At the extension hearing, the plaintiff testified that 

after the ex parte order issued, the defendant was verbally 

abusive to her, and "threatened through a third party . . . that 

if [she] continue[d] to keep [their] son away from him, that he 

[was] going to take [her] down with him." The plaintiff

indicated that the defendant's erratic behavior had "gotten 

progressively worse" since he became aware of the sentencing 

date in Federal Court, he had threatened to kill himself, and 
4

she had to "walk on eggshells around him." She also testified 

that she was afraid the defendant would become physically

violent toward her based on incidents during which he was "in 

[her] face . . . aggressive and in [her] space, and intimidating 

[her] with his body size." She testified that she believed the 

defendant was staying with relatives who had guns in their 

house. 

Based on the evidence, the judge could have concluded that 

the plaintiff proved by a preponderance of the evidence that the 

defendant had placed her in reasonable fear of imminent serious 

physical harm. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 

141 (2006) (reasonable fear of imminent serious physical harm

where defendant was "physically aggressive" with plaintiff 

despite not touching her, by screaming and waving his hands in 

her face). See also Noelle N., 97 Mass. App. Ct. at 665-666

(erratic and unstable behavior can create reasonable 

apprehension that force might be used).

We are not persuaded by the defendant's argument that the 

judge applied an incorrect legal standard at the extension 

hearing. The defendant points to the judge's remark at the 

outset of the extension hearing, explaining to the plaintiff 

that he had to find a "reasonable basis" to extend the order 

based on her "present apprehension . . . [t]hat could be based 

on fear of intimidation, abuse." The judge ultimately found 
5

that "the plaintiff has established by a preponderance of the 

credible evidence that she does suffer from fear of, or 

reasonably suffer from fear of physical abuse." To whatever 

extent the judge's informal oral comments articulated the 

standard imperfectly, we are satisfied that he applied it 

correctly. There was no error or abuse of discretion.

2. Defendant's right to be heard. We disagree with the 

defendant's assertion that he was deprived of a meaningful 

opportunity to counter the plaintiff's claims that the relatives 

with whom he was staying had guns in their home, and on a past 

occasion, he had spit in his former mother-in-law's face. 

A defendant in a 209A extension hearing "has a right to 

notice and an opportunity to be heard." M.M. v. Doucette, 92 

Mass. App. Ct. 32, 34 (2017). See Guidelines for Judicial 

Practice: Abuse Prevention Proceedings § 1:02 (rev. Oct. 2021).

"A meaningful opportunity to be heard includes an opportunity to 

address the material and determinative allegations at the core 

of a party's claim or defense and to present evidence on the 

contested facts." Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 

788 (2022).

Here, the defendant, who was represented by counsel, 

neither objected to the plaintiff's testimony nor sought 

additional time to investigate her assertions. He argues on 

appeal that he should have been allowed to present rebuttal 
6

evidence, but never requested the opportunity to do so at the 

hearing. The defendant did not cross-examine the plaintiff on 

either assertion nor address them during closing argument. Any 

argument that the defendant was unfairly surprised by the 

plaintiff's testimony was waived. See Wilhelmina W. v. Uri U., 

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

judge are waived).

3. Termination of the 209A order. The defendant claims 

the motion judge abused his discretion by "refusing to even 

consider termination of the 209A order." See MacDonald, 467 

Mass. at 394. First, we think this argument mischaracterizes 

the judge's ruling and the underlying hearing. The defendant's 

motion was to terminate the 209A order or, in the alternative, 

to modify it to permit contact with the child. At the start of 

the hearing, the judge verified that the motion was pleaded in 

the alternative. A lengthy dialogue followed between the judge 

and counsel, during which they focused on how to facilitate 

telephone contact with the child. Toward the end of the 

hearing, the judge indicated that his role was not to "mediate" 

the dispute, and if pressed to decide the motion, he would deny 

it. The defendant responded by returning the discussion to the 

logistics of telephone contact. After further back and forth 

between the judge and the parties, an agreement was reached that 

the order would be modified. When the judge ultimately stated, 
7

"[T]he motion is denied in part and allowed in part," the 

defendant did not object. 

We see nothing in the tone or conduct of the hearing that 

supports the defendant's contention that the judge refused to 

consider termination of the 209A order. After actively 

participating in a negotiated agreement for modification and 

failing to press for termination of the 209A order in any 

meaningful way, the defendant can hardly complain now that he 

was deprived of a fair hearing by the judge. See Wilhelmina W., 

102 Mass. App. Ct. at 641.

Moreover, the judge had ample basis to deny so much of the 

defendant's motion as requested termination of the 209A order. 

The first judge understood the defendant's prison sentence was 

imminent when he granted a one-year extension of the 209A order. 

That the sentence had been imposed, as expected, when the motion

judge heard the defendant's motion three months later was not "a 

significant change in circumstances" that would warrant 

termination of the order. See MacDonald, 467 Mass. at 382-383 

(termination of existing 209A order requires defendant to "show 

by clear and convincing evidence that, as a result of a 

significant change in circumstances, it is no longer equitable 
8

for the order to continue because the protected party no longer 

has a reasonable fear of imminent serious physical harm").

Orders extending and 

modifying abuse prevention 

order affirmed.

By the Court (Shin, Brennan & 

Hodgens, JJ.1),

Clerk

Entered: November 14, 2023.

1 The panelists are listed in order of seniority.