In the recent case of Tosta v. Bullis (decided February 26, 2008), the Supreme Court further clarified the standards which a trial court must use in deciding whether a domestic violence restraining order should be issued.

In Tosta, the plaintiff alleged that in June of 2006, she and her husband were involved in an altercation while traveling in their car on a Massachusetts highway. The wife claimed that husband struck her and caused her to bleed. The wife reported this assault to the Massachusetts and New Hampshire authorities, but no criminal charges were ever brought.

Despite this, the couple continued to live together until March of 2007. In March of 2007, they argued over a possible custodial arrangement for their daughter, following a divorce. The husband claimed that the wife repeatedly struck him during this dispute. The husband then gathered his belongings and moved out of the home. He did not inform the wife of his decision to leave.

The wife then filed a petition for domestic violence restraining order. She informed the court that she was assaulted by her husband in June of 2006. She claimed that as a result of this prior assault, she was afraid that he would strike her again. She also claimed that he had a big knife in his car.

At trial, the wife testified that she filed the restraining order because she was upset about the fact that the husband suddenly moved out of the house. While she did mention the prior assault, she did not inform the court about the allegation that he carried a knife. She also testified that she had a general fear of him.

The trial court issued the domestic violence order but the Supreme Court reversed the trial court's decision. The Supreme Court stated that to obtain a domestic violence restraining order, the plaintiff must demonstrate that they have a “need for protection [based upon] an ongoing credible threat to the [plaintiff's] safety”. The abuse which prompts the domestic violence petition can neither be too distant in time nor non-specific. The plaintiff also cannot meet their burden by showing a generalized fear for their personal safety based upon past violence, or more recent, non-violent harassment.

Turning to the present case, the Supreme Court held that while some criminal conduct occurred nine months prior to the filing of the domestic violence petition, the undisputed facts show that the parties continued to live together until the husband moved out in March of 2007. The wife testified that it was the sudden decision by the husband to leave the house, versus some display of threatening conduct that prompted her to file the domestic violence petition. The Supreme Court concluded that “these unique facts lead us to conclude that the assault at issue in this case, fails to qualify as the threshold element of misconduct that it is required for a finding of abuse, since the link between the plaintiff's request for protection in a 2006 assault was attenuated at best”.

Further, the Supreme Court held that the wife produced insufficient evidence to show that there is an ongoing credible threat to her safety. To the contrary, there was no evidence that the husband threatened the plaintiff in any way, in the weeks or the months leading up to the filing of the petition. In conclusion, the Supreme Court held that the only basis the wife had for filing the domestic violence petition was the husband's abrupt decision to move out of the house. That, the Supreme Court concluded, was an insufficient basis to seek a domestic violence restraining order.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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