N.S. v. S.S.

• Court: Massachusetts Appeals Court
• Decided: April 24, 2024
• Docket: 23-P-1008
• Status: Unpublished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-1008

N.S.

vs.

S.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, S.S., appeals from the extension on July 13,

2023, of a G. L. c. 258E harassment prevention order previously

entered against him on July 13, 2022. The extension order

commanded the defendant not to abuse, harass, or contact, and to

stay away from the plaintiff, N.S., for an additional six

months, until January 13, 2024. We affirm.

The plaintiff obtained a temporary order on an ex parte

basis and, following a two-party hearing held on July 13, 2022,

it was extended for one year. The defendant filed a timely

notice of appeal, and the clerk of the District Court assembled

the record and transmitted it to this Court on September 6,

2022. The defendant was required to take action to docket the

appeal within fourteen days, see Mass. R. A. P. 10 (a), as

appearing in 481 Mass. 1618 (2019), but he failed to do so and the appeal was never docketed. The defendant did not file a

motion to docket the appeal late, which would have required a

showing of excusable neglect and a meritorious case on appeal.

See Howard v. Boston Water & Sewer Comm'n, 96 Mass. App. Ct.

119, 122 (2019). Because the defendant failed to appeal from

the original order, it is not before us, and we decline to

address his claims that (1) the judge violated the defendant's

due process rights at the July 13, 2022, hearing or (2) that the

plaintiff failed to prove malicious intent.

After the order was extended for six months on July 13,

2023, by a different judge, the defendant timely filed a second

notice of appeal, the record was assembled, and the defendant

took the necessary steps to docket the appeal. We therefore

address the defendant's claim that the evidence at the 2023

hearing was insufficient to warrant an extension. We review the

judge's decision to extend the harassment prevention order for

abuse of discretion. See Yasmin Y. v. Queshon Q., 101 Mass.

App. Ct. 252, 256 (2022).

When a G. L. c. 258E order is already in place, the

defendant is not permitted to challenge the evidence underlying

the initial order, and the plaintiff is not required to

reestablish the facts sufficient to support the initial grant of

an order. See Iamele v. Asselin, 444 Mass. 734, 740 (2005);

Yasmin Y., 101 Mass. App. Ct. at 258. Rather, the plaintiff

2 must establish continued need of the order to protect her from

the effects of the past harassment, even if further harassment

is not reasonably imminent. See id. at 259; Vera V. v. Seymour

S., 98 Mass. App. Ct. 315, 317 (2020). Factors that a judge may

consider include, but are not limited to, "the defendant's

violations of protective orders, ongoing child custody or other

litigation that engenders or is likely to engender hostility,

the parties' demeanor in court, [and] the likelihood that the

parties will encounter one another in the course of their usual

activities." Yasmin Y., supra at 258, quoting Iamele, supra.

The defendant places significant weight on the fact that he

did not contact or harass the plaintiff during the year that the

order was in effect. While a violation of the order would

certainly have warranted its extension, compliance with the

order does not prove that it is unnecessary, as defendants

subject to harassment prevention orders are expected to comply

with them. See MacDonald v. Caruso, 467 Mass. 382, 388-389

(2014) (explaining why passage of time with no violations does

not amount to change in circumstances warranting modification of

order).

The defendant also argues that there was no likelihood that

the parties would encounter each other. The plaintiff addressed

this point in her testimony at the extension hearing, stating

that the defendant's past pattern of conduct caused her to fear

3 that he would attempt to insert himself back in her life as soon

as the order expired. When the judge asked her to expound on

this fear, the plaintiff explained that before she sought the

order, when she asked the defendant not to contact her or her

family and blocked his ability to reach her through social

media, he continued to find reasons to contact the plaintiff and

her family members, and it took the court order to make him

stop. Indeed, at the extension hearing, the defendant continued

to rationalize his unwanted contact by saying that it was not

"harassment," but rather was "a way to protect her." "[A]n

order may remain necessary where the plaintiff's 'fear of [the

defendant] was clear and palpable and . . . her sense of

security would be substantially diminished were the order to

expire.'" Yasmin Y., 101 Mass. App. Ct. at 258, quoting

Callahan v. Callahan, 85 Mass. App. Ct. 369, 375 (2014). The

judge reasonably found, given the parties' circumstances, a

continued need for the order to protect the plaintiff from

further harassment.

At the same time, the judge considered the defendant's

conduct while the order was in place and determined that the

extension of the order should be of limited duration.

Accordingly, the judge extended it for only six more months. As

the judge did not make "a clear error of judgment in weighing

the factors relevant to the decision" and his decision did not

4 "fall outside the range of reasonable alternatives" (quotation

omitted), L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014),

he did not abuse his discretion.

Order dated July 13, 2023, affirmed.

By the Court (Vuono, Massing & Toone, JJ. 1),

Assistant Clerk

Entered: April 24, 2024.

1 The panelists are listed in order of seniority.