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-1339
C.A.
vs.
G.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Pursuant to G. L. c. 258E, the plaintiff, C.A., obtained an
ex parte harassment prevention order against the defendant, G.S.
Following a two-party hearing, a District Court judge
permanently extended the order (extension order). The defendant
now appeals from the ex parte and extension orders. The
defendant is not entitled to review of the ex parte order
because that order has been superseded by the extension order.
See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017). We
conclude that the evidence supported the issuance of the
extension order but that the judge erred in extending the order
permanently. We therefore vacate the extension order to the
extent that it is permanent, affirm all other aspects of the order, and remand to enable the judge to consider whether
extension of the order is warranted.
Discussion. 1. Evidence of harassment. The complaint
here generally alleged three acts of harassment. In addition to
her affidavit and testimony at the hearing, the plaintiff
presented sixty-two pages of Facebook posts made by the
defendant. Neither the plaintiff nor the judge specified which
acts presented by the evidence constituted harassment as defined
by G. L. c. 258E, § 1. "[W]e consider whether the judge could
find, by a preponderance of [this] evidence, together with all
permissible inferences, that the defendant committed '[three] or
more acts of willful and malicious conduct aimed at a specific
person committed with the intent to cause fear, intimidation,
abuse or damage to property and that [did] in fact cause fear,
intimidation, abuse or damage to property.'" A.T. v. C.R., 88
Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. To
prevent chilling the defendant's constitutional rights to free
expression, we further consider whether the online remarks
posted by the defendant constitute "true threats" that include
"direct threats of imminent physical harm" or "words or actions
that —- taking into account the context in which they arise —-
cause the victim to fear such harm now or in the future and
evince intent on the part of the speaker or actor to cause such
2 fear." O'Brien v. Borowski, 461 Mass. 415, 425 (2012),
abrogated on other grounds by Seney v. Morhy, 467 Mass. 58
(2014). Applying these standards to the evidence presented, the
judge could find a sufficient basis for the protective order.
According to the plaintiff's affidavit and testimony, the
extensive Facebook posts initially arose while the defendant and
his ex-girlfriend engaged in litigation in the Probate and
Family Court over the custody of their child. The plaintiff has
been the ex-girlfriend's attorney in that litigation, and since
2018 the defendant has continually "expressed his dismay" about
the litigation on social media. After the ex-girlfriend
obtained a favorable decision in the custody dispute, the
defendant's postings "escalated a bit" and then escalated again
in the few months before the two-party hearing. The plaintiff
became "concerned" about the escalation and threats and suffered
"emotional distress." With the Probate and Family Court
litigation ongoing, on August 2, 2023, the plaintiff filed her
complaint for protection and obtained the ex parte order.
At the two-party hearing two weeks later on August 15, the
plaintiff presented evidence of the escalating conduct. The
plaintiff testified that the defendant posted online "veiled
threats against [her] family," mentioned her children, and
displayed photographs of her street, residence, and yard. She
3 further testified that he posted her date of birth and address,
stated that she did not "deserve to breathe the air that we live
in," and warned that if she "fuck[ed] with his family, he would
fuck with [hers] and he would come after them." Exhibits
offered by the plaintiff showed that the defendant posted on
Facebook that the plaintiff "doesn't deserve the air here[,]"
and he also wrote, "If you fuck with any of my family. You're
going to get me. Your kids may be held accountable for your
shit." Additional postings at other times pursued a similar
theme: "be careful with what you wish for"; "[s]how me the
picture of your house"; and "You'll end up like the guy in Dubai
I caught." The defendant also reposted a photograph of the
plaintiff's daughter that included positive comments about her
television broadcasting career, but that was marked up in red;
the defendant identified the broadcaster as "[the plaintiff's]
daughter" in large letters, underlined the words "[s]he shoots &
edits[,]" and drew a red arrow from the word "shoots" to the
daughter's forehead. The defendant did not dispute any of the
evidence presented and asserted that "he has a First Amendment
right to speak."
Based on our review of the entirety of the record, see
Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022), we
conclude that each of the postings described above could
4 constitute true threats that enabled the judge to find at least
three distinct acts of willful and malicious conduct directed at
the plaintiff and intended to cause, and did in fact cause, fear
and intimidation. G. L. c. 258B, § 1. "[T]aking into account
the context" of the contentious child custody litigation,
O'Brien, 461 Mass. at 425, a common theme in each of the
defendant's remarks that we have identified is that the
defendant "envisaged violent harm befalling" the plaintiff or
her children if she continued her representation of the ex-
girlfriend. Counterman v. Colorado, 600 U.S. 66, 70 (2023).
The threats, aimed at the plaintiff, were willful and malicious
where they served the dual purpose of exacting "revenge" on the
plaintiff for her legal work as well as expressing "hostility"
to engender fear and discourage the continuing representation of
the ex-girlfriend in the Probate and Family Court. See G. L.
c. 258E, § 1. Given the emotional backdrop of the ongoing child
custody litigation and the escalating nature of the remarks that
triggered the plaintiff to seek court protection, the judge
could have concluded, based on a preponderance of the evidence,
that the defendant's postings constituted true threats that
caused the plaintiff to fear harm "now or in the future" and
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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-1339
C.A.
vs.
G.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Pursuant to G. L. c. 258E, the plaintiff, C.A., obtained an
ex parte harassment prevention order against the defendant, G.S.
Following a two-party hearing, a District Court judge
permanently extended the order (extension order). The defendant
now appeals from the ex parte and extension orders. The
defendant is not entitled to review of the ex parte order
because that order has been superseded by the extension order.
See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017). We
conclude that the evidence supported the issuance of the
extension order but that the judge erred in extending the order
permanently. We therefore vacate the extension order to the
extent that it is permanent, affirm all other aspects of the order, and remand to enable the judge to consider whether
extension of the order is warranted.
Discussion. 1. Evidence of harassment. The complaint
here generally alleged three acts of harassment. In addition to
her affidavit and testimony at the hearing, the plaintiff
presented sixty-two pages of Facebook posts made by the
defendant. Neither the plaintiff nor the judge specified which
acts presented by the evidence constituted harassment as defined
by G. L. c. 258E, § 1. "[W]e consider whether the judge could
find, by a preponderance of [this] evidence, together with all
permissible inferences, that the defendant committed '[three] or
more acts of willful and malicious conduct aimed at a specific
person committed with the intent to cause fear, intimidation,
abuse or damage to property and that [did] in fact cause fear,
intimidation, abuse or damage to property.'" A.T. v. C.R., 88
Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. To
prevent chilling the defendant's constitutional rights to free
expression, we further consider whether the online remarks
posted by the defendant constitute "true threats" that include
"direct threats of imminent physical harm" or "words or actions
that —- taking into account the context in which they arise —-
cause the victim to fear such harm now or in the future and
evince intent on the part of the speaker or actor to cause such
2 fear." O'Brien v. Borowski, 461 Mass. 415, 425 (2012),
abrogated on other grounds by Seney v. Morhy, 467 Mass. 58
(2014). Applying these standards to the evidence presented, the
judge could find a sufficient basis for the protective order.
According to the plaintiff's affidavit and testimony, the
extensive Facebook posts initially arose while the defendant and
his ex-girlfriend engaged in litigation in the Probate and
Family Court over the custody of their child. The plaintiff has
been the ex-girlfriend's attorney in that litigation, and since
2018 the defendant has continually "expressed his dismay" about
the litigation on social media. After the ex-girlfriend
obtained a favorable decision in the custody dispute, the
defendant's postings "escalated a bit" and then escalated again
in the few months before the two-party hearing. The plaintiff
became "concerned" about the escalation and threats and suffered
"emotional distress." With the Probate and Family Court
litigation ongoing, on August 2, 2023, the plaintiff filed her
complaint for protection and obtained the ex parte order.
At the two-party hearing two weeks later on August 15, the
plaintiff presented evidence of the escalating conduct. The
plaintiff testified that the defendant posted online "veiled
threats against [her] family," mentioned her children, and
displayed photographs of her street, residence, and yard. She
3 further testified that he posted her date of birth and address,
stated that she did not "deserve to breathe the air that we live
in," and warned that if she "fuck[ed] with his family, he would
fuck with [hers] and he would come after them." Exhibits
offered by the plaintiff showed that the defendant posted on
Facebook that the plaintiff "doesn't deserve the air here[,]"
and he also wrote, "If you fuck with any of my family. You're
going to get me. Your kids may be held accountable for your
shit." Additional postings at other times pursued a similar
theme: "be careful with what you wish for"; "[s]how me the
picture of your house"; and "You'll end up like the guy in Dubai
I caught." The defendant also reposted a photograph of the
plaintiff's daughter that included positive comments about her
television broadcasting career, but that was marked up in red;
the defendant identified the broadcaster as "[the plaintiff's]
daughter" in large letters, underlined the words "[s]he shoots &
edits[,]" and drew a red arrow from the word "shoots" to the
daughter's forehead. The defendant did not dispute any of the
evidence presented and asserted that "he has a First Amendment
right to speak."
Based on our review of the entirety of the record, see
Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022), we
conclude that each of the postings described above could
4 constitute true threats that enabled the judge to find at least
three distinct acts of willful and malicious conduct directed at
the plaintiff and intended to cause, and did in fact cause, fear
and intimidation. G. L. c. 258B, § 1. "[T]aking into account
the context" of the contentious child custody litigation,
O'Brien, 461 Mass. at 425, a common theme in each of the
defendant's remarks that we have identified is that the
defendant "envisaged violent harm befalling" the plaintiff or
her children if she continued her representation of the ex-
girlfriend. Counterman v. Colorado, 600 U.S. 66, 70 (2023).
The threats, aimed at the plaintiff, were willful and malicious
where they served the dual purpose of exacting "revenge" on the
plaintiff for her legal work as well as expressing "hostility"
to engender fear and discourage the continuing representation of
the ex-girlfriend in the Probate and Family Court. See G. L.
c. 258E, § 1. Given the emotional backdrop of the ongoing child
custody litigation and the escalating nature of the remarks that
triggered the plaintiff to seek court protection, the judge
could have concluded, based on a preponderance of the evidence,
that the defendant's postings constituted true threats that
caused the plaintiff to fear harm "now or in the future" and
evinced an intent by the defendant "to cause such fear."
O'Brien, supra. See Counterman, supra at 73 (defendant must
5 have some subjective "understanding of his statements'
threatening character"). In the absence of an abuse of
discretion or an error of law, "we will not substitute our
judgment" for that of the judge who weighed the evidence at the
hearing. C.O. v. M.M., 442 Mass. 648, 655 (2004), quoting
Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).
We disagree with several contentions raised by the
defendant on appeal. The absence of findings of fact by the
judge does not constitute "reversible error." See Yasmin Y.,
101 Mass. App. Ct. at 256 (specific findings not required where
reviewing court may discern reasonable basis for order). While
the defendant now offers more innocuous or prosaic
interpretations for some of his remarks, "use of ambiguous
language does not preclude a statement from being a threat"
(citation omitted). O'Brien, 461 Mass. at 424. Indeed, threats
may be "veiled or explicit" (citation omitted). Id. Veiled
threats can be particularly useful to a perpetrator because the
victim understands the message while leaving room for a fig leaf
of deniability. Also, the plaintiff was not required to prove
"explicitly threatening language" that identified the precise
intended physical harm (citation omitted). Id. See
Commonwealth v. Chou, 433 Mass. 229, 230, 236-237 (2001) (true
threat where defendant produced missing person flyer bearing
6 former girlfriend's photograph); J.C. v. J.H. 92 Mass. App. Ct.
224, 228 (2017) (true threat where ex-boyfriend sent text
message to ex-girlfriend warning "this would 'end badly'").
2. Duration of order. Following the first two-party
hearing, "[a]ny relief granted by the court shall not extend for
a period exceeding 1 year." G. L. c. 258E, § 3 (d). At the
conclusion of the two-party hearing here, however, the judge
erred by issuing a permanent order. Therefore, the matter must
be remanded to enable the judge to consider whether there exists
a need to extend the order.
Conclusion. For the reasons set forth above, we vacate
the August 15, 2023 harassment prevention order to the extent
that it was entered as a permanent order. We otherwise affirm
the order and remand for a new hearing and determination of
whether grounds exist to extend the August 15 order. The order
shall remain in effect pending that determination.
So ordered.
By the Court (Rubin, Shin & Hodgens, JJ.1),
Clerk
Entered: June 11, 2025.
1 The panelists are listed in order of seniority.