S.N. v. R.N.

• Court: Massachusetts Appeals Court
• Decided: May 16, 2023
• Docket: 21-P-1082
• Status: Unpublished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

21-P-1082

S.N.

vs.

R.N.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, R.N., appeals from a permanent G. L. c. 258E

harassment prevention order entered against him in July 2021.

The plaintiff, S.N., is the defendant's sister. The defendant

claims on appeal that the judge erred by granting a permanent

order because the defendant had not violated the prior, one-year

order, and because the judge relied on evidence that was not

properly authenticated. We affirm.

Discussion. We note at the outset that the defendant

cannot challenge the permanent order because he requested the

judge to impose it. The judge entered the initial order in July

2020 and the plaintiff moved to extend it in July 2021. At the

end of the extension hearing, the judge stated that he intended

to extend the order by one year. Unprompted, the defendant

asked the judge to make the order permanent. The judge asked both the plaintiff and the defendant to confirm whether they

wanted a permanent order; both parties confirmed the request

multiple times. The defendant immediately announced that he

intended to appeal but did not say on what grounds. Having

requested the order be made permanent, and confirming that

request, the defendant cannot change tactics on appeal. See

Commonwealth v. Freiberg, 405 Mass. 282, 288 (1989). See also

Commonwealth v. Thompson, 382 Mass. 379, 382 (1981) ("we shall

not disregard the theory of law on which the parties proceeded

at trial").

Even if the defendant's claims were properly before us,

they are without merit. Our review of a judge’s decision to

extend or make permanent a harassment prevention order is

limited to whether the judge abused his discretion. See

Crenshaw v. Macklin, 430 Mass. 633, 636 (2000) (concerning abuse

prevention order under G. L. c. 209A); Yasmin Y. v. Queshon Q.,

101 Mass. App. Ct. 252, 257 (2022) (courts may apply same

standards under G. L. c. 209A and G. L. c. 258E). Under G. L.

c. 258E, a judge may extend a harassment prevention order "for

any additional time reasonably necessary to protect the

plaintiff," or the judge may enter a permanent order. G. L.

c. 258E, § 3 (d); see Crenshaw, supra (grant of permanent order

is within judge’s discretion). Here, the judge heard testimony

from the plaintiff that while the initial order was in effect,

2 the defendant arrived at short notice at their elderly mother's

vacation home where he knew the plaintiff was staying, despite

the mother having told him to stay away. The defendant also

made repeated telephone calls to the mother at the vacation

home, during which he made insulting comments about the mother

and the plaintiff. The plaintiff further testified that the

defendant disparaged her repeatedly in e-mails to and

conversations with their siblings. Given this conduct, it was

not an abuse of discretion for the judge to conclude that

extending the order was necessary to protect the plaintiff from

harassment.1 See G. L. c. 258E, § 3. And since both parties

requested a permanent order, it was within the judge's

discretion to grant one. See Crenshaw, supra; Lonergan-Gillen

v. Gillen, 57 Mass. App. Ct. 746, 750 (2003) (noting permanency

of order is theoretical since either party may move to modify it

at any time).

1 The defendant claims that our evidentiary rules barred the judge from viewing e-mails on the plaintiff's cell phone between the parties' siblings describing this conduct. Nothing prevented the judge from relying on the e-mails, however, because "the rules of evidence need not be followed [in abuse prevention proceedings], provided that there is fairness in what evidence is admitted and relied on." Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). See V.M. v. R.B., 94 Mass. App. Ct. 522, 526 (2018).

3 Finally, the defendant's claims relative to the original

harassment prevention order are waived because he did not appeal

from that order.2

Order dated July 28, 2021, affirmed.

By the Court (Meade, Wolohojian & Walsh, JJ.3),

Clerk

Entered: May 16, 2023.

2 In any event, the defendant's argument on appeal relative to the original order seems to be that he was denied a "factual finding" because of errors in the summons, primarily that the summons indicated that the plaintiff filed the complaint under G. L. c. 209A, not G. L. c. 258E. During the hearing on that order, however, the judge asked the defendant to confirm that the court clerk had sent him a copy of the complaint by e-mail. The defendant confirmed that he had in fact received the complaint and that it stated that it was a complaint for protection from harassment under G. L. c. 258E. In this context, the defendant had adequate notice of the nature of the complaint. Moreover, the defendant filed several motions asking the District Court to vacate, nullify, or reconsider the initial one-year order, all of which were denied.

3 The panelists are listed in order of seniority.