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
25-P-917 25-P-918 25-P-921
J.O.N.
vs.
K.N. (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
We have before us three appeals from the issuance on May
12, 2025, after two-party hearings, of orders obtained under
G. L. c. 209A. Each involves the same defendant, K.N., who has
appealed. The plaintiff in each case is a different family
member of K.N. The cases are not consolidated, but they were
tried together, and because they present several identical
issues, we decide them by way of this single decision. We
address first the legal questions that have been raised by the
defendant applicable to all three orders, then turn to the
merits of the orders obtained by the individual plaintiffs.
1 K.N.-O. vs. K.N.; D.N. vs. K.N. 1. Claims relevant to all three appeals. The defendant
argues first that the cases in the trial court were converted
mid-proceeding from ones under G. L. c. 258E, which has one
standard for issuance of a protective order, to ones under G. L.
c. 209A, which has another, in violation of the provisions of
both statutes and principles of due process.
The plaintiffs originally brought their claims under G. L.
c. 209A, but when the cases were first heard, a District Court
judge mistakenly concluded that c. 209A was inapplicable, and
that the plaintiffs could proceed only under c. 258E. At the
hearing, originally a 258E hearing, the judge noted the error.
The plaintiffs then refiled their applications mid-hearing under
209A, after which the hearing proceeded. Assuming without
deciding, however, that this conversion violated the statutes or
due process, the defendant, represented by counsel, did not
raise either of these objections before the trial court. We may
not address arguments that were not raised below; they are
waived. See E.H.S. v. K.E.S., 424 Mass. 1011, 1011-1012 (1997).
The defendant next argues that he was denied reasonable
accommodation required by State and Federal statutes. There is
a dispute between the parties whether in fact the defendant had,
at the relevant time, been diagnosed with a condition that would
require reasonable accommodation be given him under the relevant
2 and applicable statutes. We need not decide that issue. We
will again assume, without deciding, that the defendant was
entitled to reasonable accommodation.
In this case, the only accommodation sought by the
defendant in the trial court was a continuance of the first
hearing to allow him time to obtain counsel. That continuance
was granted. And indeed, at the next hearing, before a
different District Court judge (trial judge), the defendant in
fact was represented by counsel. As no other request for
reasonable accommodation was made, we see no error.
The defendant next argues that the three cases should not
have been heard together in the serial fashion utilized by the
trial judge. Although we can imagine a case in which a
procedure like this could lead to a risk of the evidence in one
case creating impermissible prejudice in another, having gone
through the transcript in this case with care, we see no risk of
prejudice here even if the procedure were error. If the cases
had been tried separately, the plaintiffs could simply have
called each other to provide evidence in support of the claims
that each was reasonably in fear of imminent serious physical
harm.
2. Claims relevant to individual appeals. Turning to the
orders issued on the applications of the individual plaintiffs,
3 the defendant argues that the evidence was insufficient in each
case to support issuance of the order. That is, that there was
insufficient evidence that any of the three plaintiffs was in
reasonable fear of imminent, serious physical harm. See Iamele
v. Asselin, 444 Mass. 734, 734-735 (2005).
Sufficiency of the evidence is a legal question, see Howard
v. Burlington, 399 Mass. 585, 588 (1987), citing Smith v. Board
of Appeals of Brookline, 366 Mass. 197, 200 (1974), but we must
defer to facts found by the trial judge and may reverse them
only if they are clearly erroneous, because only the trial
judge, and not the members of this court, saw the witnesses
testify. See Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).
We must also defer to the judge's assessment of the credibility
of witnesses. Id. With these rules of deference in mind, we
conclude that in each case there was sufficient evidence to
support the judge's conclusion with respect to the reasonable
fear of each plaintiff.
The events that gave rise to the three cases derive from
bitterly estranged relations between the defendant and his three
family member plaintiffs: his father, J.O.N.; his brother, D.N.;
and his sister, K.N.-O. The intensity of the defendant's
evident anger at the plaintiffs appears to stem, at least in
part, from his feeling that he had been mistreated by them.
4 Although it appears that he felt mistreated in a number of ways,
the specific intensity the judge could have found was a result
of the defendant's belief that his father had cut him out of his
will, with -- as the defendant believed -- the assistance or
encouragement of his brother and sister.
To begin with, the judge could have found, as the father
testified, that the will had not ever been changed, and that it
continued to provide for an equal division of his estate between
the three children. In light of this, the judge could have
found the defendant's behavior lacked rational explanation.
Specifically, there was evidence of an escalating number of
unwanted text and e-mail messages to each of the plaintiffs,
with increasing language reflecting disgust and derision, as
well as threatening language growing in frequency and intensity.
Although the defendant argues that the specific threats he
made were only to file legal actions, they were threats
nonetheless, and while the defendant asserts that there had
never been any physical violence perpetrated by him described in
the record, "for the plaintiff[s'] fear of imminent serious
physical harm to be reasonable, it is not necessary that there
be a history -- or even a specific incident of physical
violence." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665
(2020). Rather, the court must consider the totality of the
5 circumstances and "examine the words and conduct in the context
of the entire history of the parties' hostile relationship"
(quotations and citation omitted).
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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
25-P-917 25-P-918 25-P-921
J.O.N.
vs.
K.N. (and two companion cases1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
We have before us three appeals from the issuance on May
12, 2025, after two-party hearings, of orders obtained under
G. L. c. 209A. Each involves the same defendant, K.N., who has
appealed. The plaintiff in each case is a different family
member of K.N. The cases are not consolidated, but they were
tried together, and because they present several identical
issues, we decide them by way of this single decision. We
address first the legal questions that have been raised by the
defendant applicable to all three orders, then turn to the
merits of the orders obtained by the individual plaintiffs.
1 K.N.-O. vs. K.N.; D.N. vs. K.N. 1. Claims relevant to all three appeals. The defendant
argues first that the cases in the trial court were converted
mid-proceeding from ones under G. L. c. 258E, which has one
standard for issuance of a protective order, to ones under G. L.
c. 209A, which has another, in violation of the provisions of
both statutes and principles of due process.
The plaintiffs originally brought their claims under G. L.
c. 209A, but when the cases were first heard, a District Court
judge mistakenly concluded that c. 209A was inapplicable, and
that the plaintiffs could proceed only under c. 258E. At the
hearing, originally a 258E hearing, the judge noted the error.
The plaintiffs then refiled their applications mid-hearing under
209A, after which the hearing proceeded. Assuming without
deciding, however, that this conversion violated the statutes or
due process, the defendant, represented by counsel, did not
raise either of these objections before the trial court. We may
not address arguments that were not raised below; they are
waived. See E.H.S. v. K.E.S., 424 Mass. 1011, 1011-1012 (1997).
The defendant next argues that he was denied reasonable
accommodation required by State and Federal statutes. There is
a dispute between the parties whether in fact the defendant had,
at the relevant time, been diagnosed with a condition that would
require reasonable accommodation be given him under the relevant
2 and applicable statutes. We need not decide that issue. We
will again assume, without deciding, that the defendant was
entitled to reasonable accommodation.
In this case, the only accommodation sought by the
defendant in the trial court was a continuance of the first
hearing to allow him time to obtain counsel. That continuance
was granted. And indeed, at the next hearing, before a
different District Court judge (trial judge), the defendant in
fact was represented by counsel. As no other request for
reasonable accommodation was made, we see no error.
The defendant next argues that the three cases should not
have been heard together in the serial fashion utilized by the
trial judge. Although we can imagine a case in which a
procedure like this could lead to a risk of the evidence in one
case creating impermissible prejudice in another, having gone
through the transcript in this case with care, we see no risk of
prejudice here even if the procedure were error. If the cases
had been tried separately, the plaintiffs could simply have
called each other to provide evidence in support of the claims
that each was reasonably in fear of imminent serious physical
harm.
2. Claims relevant to individual appeals. Turning to the
orders issued on the applications of the individual plaintiffs,
3 the defendant argues that the evidence was insufficient in each
case to support issuance of the order. That is, that there was
insufficient evidence that any of the three plaintiffs was in
reasonable fear of imminent, serious physical harm. See Iamele
v. Asselin, 444 Mass. 734, 734-735 (2005).
Sufficiency of the evidence is a legal question, see Howard
v. Burlington, 399 Mass. 585, 588 (1987), citing Smith v. Board
of Appeals of Brookline, 366 Mass. 197, 200 (1974), but we must
defer to facts found by the trial judge and may reverse them
only if they are clearly erroneous, because only the trial
judge, and not the members of this court, saw the witnesses
testify. See Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).
We must also defer to the judge's assessment of the credibility
of witnesses. Id. With these rules of deference in mind, we
conclude that in each case there was sufficient evidence to
support the judge's conclusion with respect to the reasonable
fear of each plaintiff.
The events that gave rise to the three cases derive from
bitterly estranged relations between the defendant and his three
family member plaintiffs: his father, J.O.N.; his brother, D.N.;
and his sister, K.N.-O. The intensity of the defendant's
evident anger at the plaintiffs appears to stem, at least in
part, from his feeling that he had been mistreated by them.
4 Although it appears that he felt mistreated in a number of ways,
the specific intensity the judge could have found was a result
of the defendant's belief that his father had cut him out of his
will, with -- as the defendant believed -- the assistance or
encouragement of his brother and sister.
To begin with, the judge could have found, as the father
testified, that the will had not ever been changed, and that it
continued to provide for an equal division of his estate between
the three children. In light of this, the judge could have
found the defendant's behavior lacked rational explanation.
Specifically, there was evidence of an escalating number of
unwanted text and e-mail messages to each of the plaintiffs,
with increasing language reflecting disgust and derision, as
well as threatening language growing in frequency and intensity.
Although the defendant argues that the specific threats he
made were only to file legal actions, they were threats
nonetheless, and while the defendant asserts that there had
never been any physical violence perpetrated by him described in
the record, "for the plaintiff[s'] fear of imminent serious
physical harm to be reasonable, it is not necessary that there
be a history -- or even a specific incident of physical
violence." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665
(2020). Rather, the court must consider the totality of the
5 circumstances and "examine the words and conduct in the context
of the entire history of the parties' hostile relationship"
(quotations and citation omitted). Id.
a. Order protecting J.O.N. With respect to the father,
J.O.N., there was evidence that he (and the defendant's brother,
D.N.) received a message from the defendant, who boxes, stating
that he wanted to "walk all of you down the ring." Although
this might have been a metaphor, the judge was entitled to draw
the inference that the defendant was saying to the father and
the brother that he wanted to do them physical harm.
There was evidence that the defendant told the father that
he would have his dog defecate on the father's lawn. The father
testified that the defendant had "done things that kind of
scared me a couple of times." He testified that the defendant
had appeared at his home uninvited and "flown into a rage, and
he would start screaming and yelling at me. And anytime I tried
to talk to him he would tell me to shut up." The father, who
was eighty-four years old, also testified that the defendant had
previously, and for no reason, put him in a headlock. Although
the father described it as "nonthreatening," he said that it was
"kind of scary because he's awful strong." The judge was
entitled to view this act as physical violence intended to
6 intimidate the father and to put him in fear of serious,
physical harm.
There was further evidence of an irrational belief on the
part of the defendant that the father was somehow holding the
defendant's credit card hostage -- the address on the account of
which the defendant, in fact, had never changed from the
father's address. This evidence and evidence of escalating and
irrational verbal abuse and denigration, threats, and the
headlock incident, together with the rest of the evidence in the
record, suffice adequately to support the judge's determination
that the father was in reasonable fear of imminent, serious
b. Order protecting K.N.-O. As to the sister, she
testified that the defendant is "increasingly angry, agitated,
intimidating, paranoid." She testified that the defendant told
her, "See you soon, you may not see me coming." He also told
her, "I'm going to make your life worse than you've made mine";
that she had to "respond now or you'll regret it"; and that
"your day of reckoning is coming, you're going to pay."
The defendant left his sister disturbing messages,
including one that said to the sister, who had stomach cancer,
that he "Just hope[d] you're up with loose stool and very bad
stomach pain." The defendant texted the plaintiffs, "You are
7 all guna be haunted by me the rest of ur days," and used that
spelling repeatedly in that text chain. The sister testified
that the defendant changed the spelling of "gonna" in his text
to "guna," which the defendant dismisses, but which the judge
could have concluded was an intentional change intended to imply
something about firearms. She testified that she took that as a
threat, and it placed her in fear.
The defendant sent the sister forty-eight e-mail messages
on her birthday. And she heard a telephone call between her
father and the defendant that she found disturbing because of
the defendant's tone of voice and his telling the father to
"shut up." She testified that starting in April 2025, "[I]t was
just constant, constant email threats, you know, voicemail
threats; respond back now. . . I've got him calling my work."
She also testified that she was not comfortable leaving her
doors at her house unlocked because of the defendant.
Again, this evidence supported the judge's conclusion that
the sister was subjectively in fear of imminent, serious
physical harm. And, all the evidence before the judge supported
his conclusion that that fear was reasonable.
c. Order protecting D.N. Finally, as described above, the
brother received the "walk all of you down the ring" e-mail
message, and messages with the "guna" spelling of "gonna." The
8 judge was entitled to believe the brother's testimony that the
defendant is "very into these strange hidden messages and
references." The brother testified that the defendant had
contacted the brother's ex-wife, panicking her; that the brother
had contacted the police as a result of the communications from
the defendant; and that the defendant had called him from
multiple telephone numbers after the brother had blocked the
defendant's number on the brother's phone. The brother
testified that he received thirty communications from the
defendant in the span of one week, and that he felt threatened
by phrases used by the defendant, including, "You will pay for
this," "You will not get away with this," and "Test me bitch."
The brother took the "Test me bitch" statement, along with the
"walk you down the ring" threat, as a challenge to a physical
fight.
Again, given all the facts and circumstances, including the
inferences the judge could have drawn from some of the
statements made by the defendant to the brother, the judge's
finding that the brother was reasonably in fear of imminent,
9 serious physical harm was also adequately supported by the
record.
Orders dated May 12, 2025, affirmed.
By the Court (Rubin, Massing & Toone, JJ.2),
Clerk
Entered: July 8, 2026.
2 The panelists are listed in order of seniority.