FAYE GINSBERG vs. JONATHAN BLACKER.

LAURENCE, J. The defendant, Jonathan Blacker, appeals from a March 4, 2005, abuse prevention order issued against him pursuant to G. L. c. 209A at the behest of his ex-wife, Faye Ginsberg. [Note 1] He asserts that the Probate and Family Court judge erred because there was insufficient evidence to support a finding that the conduct complained of by his ex-wife had placed her "in fear of imminent serious physical harm" as required by the definition

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of "abuse" in G. L. c. 209A, § 1, inserted by St. 1978, c. 447, § 2. [Note 2] We affirm.

Facts. [Note 3] Approximately two months before the February 3, 2005, incident that prompted Ginsberg to seek a protective order (described infra), Blacker's attitude and conduct toward her became hostile and increasingly erratic, sometimes "out of control," and his temper periodically flared. His changed behavior was precipitated by her decision to reduce the asking price for the marital home (which either the divorce decree or the parties' separation agreement, neither of which is in the record, apparently required to be sold, with the proceeds divided between the parties). Blacker persisted in blaming Ginsberg for reducing the sale price, telling her that she had "ruined his life," that the sale of the house would be "the end of [their] family," and that "the Ginsberg family [which included his ex-wife] should be shot." He would continually call at "all hours of the day," repeatedly come into the house without notice or invitation, [Note 4] personally deliver her support checks despite her request that he send them to her, and often drive by the house.

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During this time, according to the son's health aide, there was frequent yelling between the parties.

This period of rising tensions between the parties [Note 5] culminated on February 3, 2005, when Blacker again entered the house unannounced and proceeded into the kitchen where Ginsberg was preparing dinner with her son and the son's aide. Blacker suddenly became enraged when be observed what he believed to be an unflattering haircut he mistakenly assumed Ginsberg had given their son. He began yelling at her about the supposed haircut and was "totally out of control, pulling his hair, pacing back and forth, [and] very physically aggressive with [Ginsberg]." When she asked him to leave the house, "he went berserk." He "came right up into [Ginsberg's] face," screaming and waving his hands about very close to her face, his face so close to her that she "could feel his spit on [her] face." When she attempted to leave the kitchen and ran upstairs, Blacker followed her, shouting obscenities and "call[ing] [her] terrible names in front of" their son and the aide. She came back downstairs and told Blacker she would call "911" if he did not "get away from [her]." Blacker then left, saying that Ginsberg was a "stupid f'n crazy f'n bitch."

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Ginsberg felt that Blacker had "really lost it [and was] going to snap." Although she conceded that he had never struck her before, his "violent streak" had reached the point, given his frightening and "unexplainable" outburst, that she feared "that he will strike [her] or do something much worse" and that "the violence is imminent." She applied for the c. 209A order one and one-half weeks later. [Note 6]

Blacker's response to Ginsberg's evidence consisted of vehemently controverting every one of her allegations, denying in particular that he had ever entered the house unannounced, yelled at her, sworn at her, made any threats to her or her family, or raised his hand to her "even half an inch" (indeed, he protested that he had "never raised [his] hand to a single human being in [his] life"). He described his conduct during the February 3 incident (about which he admitted he could not recall details) as "just sort of express [ing] . . . frustration" over the supposed haircut, in a normal and "friendly," though "stern," tone of voice. The judge expressly noted that, as Blacker testified about his "frustration," "he was doing [in court] exactly what [Ginsberg] said he did with his hands," as to which conduct the judge observed, "[t]hat's an assault."

Discussion. The issue presented is whether the judge could properly conclude that a preponderance of the evidence demonstrated that Blacker had, on February 3, 2005, placed Ginsberg "in fear of imminent serious physical harm," which constitutes "abuse" justifying the issuance of a protective order under G. L. c. 209A, §§ 1 and 3. See Iamele v. Asselin, 444 Mass. 734 , 735, 739-740 (2005); Uttaro v. Uttaro, 54 Mass. App. Ct. 871 , 873-874 (2002).

We note that, for c. 209A purposes, the conduct proscribed as abuse "closely approximates the common-law description of assault, see Commonwealth v. Gordon, 407 Mass. 340 , 349 (1990)." Uttaro v. Uttaro, supra at 873. Under the common law, "it is

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well established in this State that an act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault" (emphasis added). Commonwealth v. Delgado, 367 Mass. 432 , 437 (1975). [Note 7] "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." Commonwealth v. Gordon, supra at 349. A central feature of c. 209A "abuse" is that the victim's fear or apprehension caused by the defendant's words or conduct "must be more than 'subjective and unspecified'; viewed objectively . . . 'the plaintiff's apprehension that force may be used [must] be reasonable.' " Vittone v. Clairmont, 64 Mass. App. Ct. 479 , 486 (2005), quoting from Carroll v. Kartell, 56 Mass. App. Ct. 83 , 86-87 (2002).

We have no difficulty in upholding the judge's implicit findings that Blacker's conduct, by word and act, on February 3, 2005, was not only "menacing by objective standards," Commonwealth v. Slaney, 345 Mass. 135 , 140 (1962), but created an apprehension of imminent serious physical harm on the part of Ginsberg that was objectively reasonable. Blacker's intimidating behavior toward his ex-wife, as testified to by Ginsberg and credited by the judge, rationally could be interpreted by the judge as "creat[ing] a picture of a volatile situation in which the possibility of physical abuse was present." Commonwealth v. Gordon, 407 Mass. at 350. Moreover, it readily could be inferred from Blacker's conduct on February 3, 2005, that Ginsberg, even if she had not expressly so testified, reasonably apprehended that force "might be used against her" (emphasis added), Commonwealth v. Robicheau, 421 Mass. 176 , 181 (1995),

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at any moment, [Note 8] given his increasingly "erratic and unstable behavior" over the recent past that had "escalated" to the point that she felt "[h]e's going to snap."

The requisite element, that the plaintiff must reasonably apprehend "imminent serious physical harm," is satisfied by the threat Blacker communicated through his hands flailing in Ginsberg's face, so close to her that his angry shouting caused his spittle to spray upon her face. While naked hands (and other body parts) are not, as matter of Massachusetts law, dangerous weapons, it has been acknowledged that they may be used to inflict "disabling or disfiguring injuries," serious enough to

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warrant a conviction for mayhem (under G. L. c. 265, § 14). See Commonwealth v. Davis, 10 Mass. App. Ct. 190 , 196 (1980).

Blacker contends that Ginsberg could not have reasonably had an imminent fear of serious physical harm at the February 3, 2005, confrontation because he had never physically struck or harmed her during the course of their relationship (a fact Ginsberg conceded). The absence of physical harm prior to the abusive incident may be a factor to be considered in the totality of the circumstances but does not remove Blacker's conduct on February 3 from the category of abuse. The facts in Commonwealth v. Gordon, 407 Mass. at 341-343, are instructive on this issue. There, the court held that "abuse" as defined in G. L. c. 209A, § 1 (in the context of a prosecution for the defendant's violation of a c. 209A order to refrain from "abusing" his wife), could be found on the following facts that did not involve any past or contemporaneous physical abuse or violence:

"In the present case, there was evidence of a verbal outburst between the defendant and [his wife] five days before the incident in question, during which the defendant called his wife a 'bitch' and a 'whore.' [The wife] testified that, at this time, she was 'upset,' and that she 'didn't know what [the defendant] was going to do next.' At the next meeting between [the wife] and the defendant, on November 15, 1988, the defendant arrived at the house unannounced, and when [his wife] refused to respond to the defendant's requests that she open the door, the defendant said that [she] was being 'immature and ridiculous.' Despite [his wife's] obvious unwillingness to speak with him, the defendant left his automobile when she appeared and prevented [her] from closing the front door by propping his back against it.

"In these circumstances, we cannot say that a jury could not conclude beyond a reasonable doubt that [the wife] entertained a reasonable apprehension that her husband might physically abuse her. The fact that the defendant had violated an order to remain away from the house, the evidence of the tension between the parties, the previous verbal abuse by the defendant, and the defendant's physical

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actions in holding open the door when [his wife] clearly desired to avoid contact could reasonably be combined by the jury to create a picture of a volatile situation in which the possibility of physical abuse was present."

Id. at 349-350.

The facts in the instant case -- Blacker's flying into a rage at an objectively trivial incident (his mistaken perception about his son's haircut), his pulling at his hair while pacing back and forth, his thrusting of his waving hands into Ginsberg's face while screaming at her so uncontrollably as to project his saliva into her face, his pursuing her upstairs and downstairs as she tried to avoid his presence, as well as his obscene verbal abuse, all done in the presence of his young son and against the background of his wishing that Ginsberg and her family "should be shot" for having "ruined his life" -- are far more egregiously threatening and violent than those found sufficient to constitute abuse in Gordon. [Note 9]

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The reasonableness of Ginsberg's apprehension here also contrasts sharply with those cases where the plaintiff's evidence has failed to establish abuse as defined in G. L. c. 209A, § 1. See, e.g., Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 , 1020-1021 (1997) (sending notices of a future lawsuit and court proceedings insufficient); Wooldridge v. Hickey, 45 Mass. App. Ct. 637 , 639-641 (1998) (conclusory assertions of ex-husband's having been "abusive" and "verbally abusive" without factual details, and with no explanation of why ex-wife felt apprehension of imminent physical harm, except unelaborated "[b]ecause," insufficient); Uttaro v. Uttaro, 54 Mass. App. Ct. at 874-875 (complainant's fear of being arrested for violating an outstanding c. 209A order insufficient); Carroll v. Kartell, 56 Mass. App. Ct. at 85-87 (receiving frequent undesired telephone calls and mail from defendant desiring to "cultivate a friendship," without any menacing language or any menacing gestures by him on the few occasions they were together, insufficient); Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284 , 287-288 (2003) (a divorced father's telling his seven year old daughter about peculiar and frightening dreams, tossing a milk container at her, cuffing her under the chin in irritation, kicking the back of her legs in irritation while both were in bed, and pinching her on the arm and leaving a mark, at various times, might be unacceptable parental behavior meriting modification of his custody and visitation rights under the divorce judgment, but were insufficient to establish c. 209A abuse); Keene v. Gangi, 60 Mass. App. Ct. 667 , 669-670 (2004) (placing of hidden video camera in girlfriend's bedroom by boyfriend who had a temper and occasionally said he could have someone "taken care of," insufficient).

The Probate and Family Court judge -- undoubtedly experienced with and sensitive to the unfortunate fact that most litigants involved in family disputes and dissolutions are in turmoil, often angry, in their most unreasonable frames of mind,

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and at their emotional breaking points -- had the unrivaled benefit of observing the parties at close hand, with the commensurate ability to evaluate their credibility, in light not only of their testimony but also of their demeanor in court. See Iamele v. Asselin, 444 Mass. at 740; Vittone v. Clairmont, 64 Mass. App. Ct. at 487. She "was entitled to credit the testimony of the plaintiff" regarding her fear in the attendant circumstances and "to accept the reasonableness of her perception of that fear as a potential prelude to physical harm, particularly in light of . . . the defendant's agitated conduct in court." [Note 10] Pike v. Maguire, 47 Mass. App. Ct. 929 , 930 (1999). The judge's March 4, 2005, abuse prevention order is, accordingly, affirmed.

Ginsberg has requested an award of her appellate attorney's fees. We do not, however, view Blacker's appellate arguments as so egregious, misleading, or foredoomed to defeat as to justify the request. See Symmons v. O'Keeffe, 419 Mass. 288 , 303-304 (1995). Contrast Avery v. Steele, 414 Mass. 450 , 451-453, 455-457 (1993), and cases cited. She is, of course, entitled to her costs in successfully defending against the appeal. See Mass.R.A.P. 26, as amended, 378 Mass. 925 (1979).

So ordered.