K.Z. v. N.F. ( 2023 )

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
22-P-774
K.Z.
vs.
N.F.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The parties are college students who, along with three
other tenants, shared an apartment in Brookline. They did not
get along. K.Z. had many complaints about N.F.'s conduct, which
K.Z. claims to have found threatening. To address his living
situation, K.Z. petitioned for an abuse prevention order
pursuant to G. L. c. 209A against N.F. After an initial hearing
at which both parties appeared, a District Court judge issued an
order requiring N.F. to stay away from K.Z. and from the
apartment and scheduled a second two-party hearing twelve days
later. At the follow-up hearing, N.F. reported that the
landlord was allowing her to break her lease and that she had no
intention of returning to the apartment. Nevertheless, at
K.Z.'s request, the judge extended the 209A order for a full
year. On N.F.'s appeal, we vacate both orders.
Background. A major source of conflict between the
housemates was that N.F. regularly allowed her boyfriend to stay
over, in contravention of the lease term that limited occupancy
to listed tenants and family. K.Z. also alleged that N.F. did
many other things that violated the lease's "no disturbance"
policy. For example, he alleged that N.F. once broke his
kitchen grater, but would not admit it. He also alleged that
she hid other kitchenware or stored it in unhygienic locations.
Another prominent complaint was that N.F. intentionally bounced
a hard ball against K.Z.'s bedroom door to annoy him, and that,
when confronted about this, she claimed that she was merely
playing with one or more of the apartment's multiple cats.
K.Z., who is Asian, additionally claimed that on the same
occasion that he confronted her about the ball, N.F. made fun of
his way of speaking and banged on his bedroom door after he
retreated there.
Discussion. N.F. admits that she and K.Z. did not get
along and that they had at least one verbal dispute in which
expletives were exchanged.1 She otherwise seeks to paint a
1 As an initial matter, there is a question whether G. L. c. 209A
applies in the context before us. The statute applies to
"household members," though that does not mean it applies to all
people who live together. See, e.g., Silva v. Carmel, 468 Mass.
18, 22-23 (2014) (individuals assigned by State agency to live
together but who otherwise are not "socially interdependent" and
"not voluntarily living together" were not "household members"
2
different picture of the underlying facts, claiming to have been
a good and responsible roommate. To support this picture, N.F.
presented multiple letters of support, including a letter from a
former roommate who had lived with both K.Z. and N.F. Although
the judge did not issue specific findings, she plainly appears
to have credited K.Z.'s version of the events, and we are bound
by her credibility determinations. See Vittone v. Clairmont, 64
Mass. App. Ct. 479, 487 (2005) ("The judge had the parties
before [her] and was in a position to observe their demeanor").
The question remains whether K.Z.'s allegations are legally
sufficient to support the issuance of an abuse prevention order
pursuant to c. 209A. In the circumstances of this case, which
involved no allegations of actual or attempted violence by N.F.
against K.Z. or claims of any sexual contact between them, K.Z.
needed to prove that, viewed objectively, N.F.'s actions or
statements placed him in reasonable fear of "imminent serious
physical harm." G. L. c. 209A, § 1 (definition of "abuse").
See Smith v. Jones, 75 Mass. App. Ct. 540, 543 (2009)
("reasonable fear of imminent serious physical harm is to be
determined by an objective standard"). We agree with N.F. that,
as a matter of law, the evidence here did not meet that
standard. Although N.F.'s conduct was no doubt annoying and
for purposes of c. 209A). N.F. has not raised this issue and we
therefore do not reach it.
3
perhaps even anxiety provoking, nothing suggests that she was
about to attack K.Z. or otherwise had threatened him with
imminent serious physical harm.2 K.Z's vague expressions that
N.F.'s bad behavior created an atmosphere in which he and the
other roommates "no longer feel safe, no longer feel comfortable
and no longer enjoy this toxic situation" are not sufficient.
See Carroll v. Kartell, 56 Mass. App. Ct. 83, 86 (2002)
("Generalized apprehension, nervousness, feeling aggravated or
hassled, i.e., psychological distress from vexing but
nonphysical [contact], when there is no threat of imminent
serious physical harm, does not rise to the level of fear of
imminent serious physical harm" [citation omitted]).3
2 K.Z. separately obtained an abuse prevention order against
N.F.'s boyfriend. Although the record of that case is not
before us, there are some indications that the boyfriend's
conduct may have included more overtly threatening behavior. We
express no position on the propriety of any orders issued
against him.
3 In the parallel context of harassment prevention orders sought
pursuant G. L. c. 258E, we have cautioned that when the issuance
of the order would serve to evict a tenant, judges should be on
guard to "examine the allegations of harassment carefully, to
ensure that c. 258E is not being used as a substitute for
eviction through a summary process action under G. L. c. 239."
C.E.R. v. P.C., 91 Mass. App. Ct. 124, 124-125 (2017). The same
admonition applies in the c. 209A context.
4
The abuse prevention orders issued against N.F. are
vacated.
So ordered.
By the Court (Milkey,
Massing & Henry, JJ.4),
Clerk
Entered: April 14, 2023.
4 The panelists are listed in order of seniority.
5