Appeals Court (January 31, 2006)

Where a plaintiff fails to prove that "abuse" occurred within the meaning of c.209A, a judge may not continue an ex parte order because of subjective concerns that violence may occur if both parties remain in the same household.

The plaintiff successfully obtained an ex parte restraining order against her fiancé that directed the defendant, among other things, to leave and remain away from their residence. At the hearing six weeks later, however, it became clear to the judge that the real dispute involved the parties' financial interests in the home they both owned and occupied. The judge found the defendant's version of events to be more credible and specifically ruled that the plaintiff failed to prove that "abuse" occurred to justify an extension of the order. Despite his own findings, the judge nevertheless continued to extend the ex parte order on multiple occasions. The judge, recognizing the vacate order was of "dubious legal validity," stated that the only reason for the extension was that he was "scared to death of these two people sitting in the same house . . .[which] could lead to an explosive situation."

The appeals court affirmed the ex parte order (reasoning that the plaintiff's affidavits established a sufficient factual basis to conclude that the defendant had caused the plaintiff physical harm or placed her in fear of imminent serious physical harm), and vacated all subsequent orders against the defendant. Where the judge concluded the plaintiff had failed to prove "abuse," the judge lacked the power to impose a protective order based upon his subjective concern about what might occur. There must be more than "generalized apprehension [or] nervousness," which the courts refuse to recognize as abuse under c. 209A.