D.O. v. C.C.

• Court: Massachusetts Appeals Court
• Decided: December 5, 2024
• Docket: 23-P-1449
• Status: Unpublished

Opinion

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-1449

D.O.

vs.

C.C.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff appeals from an order of a judge of the

District Court denying her request to extend a G. L. c. 258E

harassment prevention order (258E order). We conclude that the

judge erred by failing to determine whether an extension was

required to protect the plaintiff from the impact of the past

criminal sexual conduct by the defendant that gave rise to the

initial 258E order. We therefore vacate the order denying the

plaintiff's request for an extension and remand the matter for

further proceedings.

Background. On July 12, 2019, a District Court judge

issued an ex parte 258E order based on sworn statements of the

plaintiff alleging that the defendant, a coresident in her housing complex, made highly sexualized remarks to her, which

"escalated" to the point where he touched her neck, shoulders,

back, waist, buttocks, and "part way in between [her] legs"

despite her saying "no" repeatedly. The plaintiff stated that

on several other occasions, the defendant placed letters in her

mailbox that contained sexual comments, and on another occasion,

the defendant threatened to "get" the plaintiff. The plaintiff

stated she feared that the defendant would rape her and that she

would be unable to get away from the defendant because she was

disabled. Following a two-party hearing on July 26, 2019, the

judge extended the order for one year. Two other judges granted

additional one-year extensions on three subsequent hearing dates

at which both parties were present.

On August 9, 2023, the plaintiff and the defendant appeared

with counsel before a fourth judge for a hearing on the

plaintiff's request for a further extension of the 258E order.

The plaintiff filed a new affidavit, restating that the

defendant had sexually assaulted her in May 2019 and harassed

her on multiple occasions (including as recently as May 2023),

causing her "emotional pain and trauma." She stated that she

remained in fear due to the defendant's ongoing behavior,

including conduct that violated the 258E order. The plaintiff

reiterated these concerns during her testimony at the hearing.

Although there appeared to be no dispute with the plaintiff's

2 assertion that she had reported incidents of violations of the

258E order to the police, the judge focused on why he should

extend the order "when there's been no police action, there's

been no violations as a result of any charges." When the

plaintiff's counsel pointed out that the plaintiff "was a victim

of a sexual assault by [the defendant]," the judge replied,

"That's four years ago . . . and no charges were brought." The

judge concluded the hearing by ruling, "I'm not extending this

order. Under the law, I have to make a renewed finding every

time this comes back in that there is a reasonable imminent fear

of physical harm . . . . There hasn't been any physical harm in

over four years. They live near each other, they don't like

each other. I'm not extending the order."

Discussion. We review a judge's decision whether to extend

a 258E order for an abuse of discretion or other error of law.

See Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022).

Where the record reflects that the judge applied an improper

standard, "we will not hesitate to remand for further findings"

(citation omitted). Id. The standard for extending a 258E

order is whether the plaintiff has demonstrated, by a

preponderance of the evidence, that extension is reasonably

necessary to protect the plaintiff from further harassment. See

G. L. c. 258E, § 3; Iamele v. Asselin, 444 Mass. 734, 736-737

(2005). The justification for extending the order varies

3 depending upon the basis on which the order was granted. Yasmin

Y., supra at 256-257.

Here, the judge improperly focused the scope of his

analysis too narrowly. The evidentiary basis for the initial

258E order included both "[three] or more acts of willful and

malicious conduct aimed at [the plaintiff] which were committed

with the intent to cause fear, intimidation, abuse or damage to

property and did in fact cause fear, intimidation, abuse or

damage to property," and an act "committ[ed] against [the

plaintiff] . . . that constitutes [indecent assault and

battery]."1 Thus, the plaintiff was entitled to an extension if

she proved either a reasonable fear of imminent future

harassment absent extension of the order or that "the order

[was] necessary to protect her from the impact of that past sex

offense." Yasmin Y., 101 Mass. App. Ct. at 257. It was error

for the judge to deny the extension based on the plaintiff's

failure to demonstrate "a reasonable imminent fear of physical

harm." Id. We therefore vacate the order denying the

plaintiff's request for an extension of the 258E order and

1 The plaintiff, who was self-represented at the ex parte hearing, checked only the first box of the 258E order complaint form, which pertains to three or more acts of willful and malicious conduct. However, the affidavit and accompanying written statements aver that the defendant touched the plaintiff's buttocks and "part way in between [her] legs from [her] back side" without her consent. See G. L. c. 265, § 13H (indecent assault and battery).

4 remand for further proceedings consistent with this memorandum

and order.

So ordered.

By the Court (Rubin, Hand & Brennan, JJ.2),

Clerk

Entered: December 5, 2024.

2 The panelists are listed in order of seniority.