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-658
Y.F.
vs.
E.O.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, E.O., appeals from the extension of a
harassment prevention order issued in favor of the plaintiff,
Y.F., pursuant to G. L. c. 258E, § 3 (258E order). We affirm.
Background. On April 17, 2025, an ex parte harassment
prevention order issued against the defendant, presumably based
on an affidavit supporting the plaintiff's complaint, in which
the plaintiff claimed that the defendant, whom she had never met
in person, had committed three or more acts of harassment
against her. See G. L. c. 258E, § 1; Gassman v. Reason, 90
Mass. App. Ct. 1, 7 (2016).
On April 29, 2025, a District Court judge held a two-party
hearing. Both parties were present and represented themselves. The affidavit in support of the harassment prevention order
described the following: In October 2024, the plaintiff
received a text message from an unknown number asking for her to
call the number back. The plaintiff did not return the call but
sent a text message and asked for the caller's identity.
Shortly thereafter, the plaintiff received a video call from the
defendant, who said that she knew that the plaintiff and the
defendant's husband, "Edward," were engaged in an affair. The
plaintiff responded that she was unaware that Edward was
married. The defendant told the plaintiff that she had obtained
from Edward's cellular telephone three videos of the plaintiff
that were of an intimate nature. Later, the defendant
threatened to distribute the videos to Edwards's contacts and to
post them online.
The plaintiff stated that the defendant continued to harass
her for the next five months, including by obtaining a job at
the plaintiff's place of employment; gaining access to the
plaintiff's work schedule and following her to her job and
threatening to talk to her supervisor; calling the plaintiff's
place of employment and sending e-mail messages to the
plaintiff's employer in an attempt to have her terminated;
continually calling the plaintiff until the plaintiff blocked
her cellular phone number and then contacting the plaintiff with
2 a different phone number; and, in voicemails and text messages,
threatening to kill the plaintiff. When the plaintiff warned
the defendant to stop contacting her, the defendant responded
that "she won't stop until she finish[es] me."
At the two-party hearing, the judge first heard from the
plaintiff, who testified that the defendant "keeps following me,
stalking me, calling my job, doing all that you can think of to
abuse me." The plaintiff told the judge that she had copies of
e-mail messages that she wanted the judge to review.1 Finally,
the plaintiff testified that the defendant claimed to have three
videos "of sexual content, and she's harassing me, saying that
she might upload them to the internet, so I am embarrassed about
it."
The judge then gave the defendant an opportunity to be
heard. The defendant told the judge that the plaintiff entered
her "matrimonial home" and "constantly sleeps over with my
husband, has [a] sexual relationship with my husband." The
defendant explained that she had never met the plaintiff and
repeatedly told the judge that she had only spoken with the
plaintiff on two occasions. The first communication was the
initial text message after she had discovered the affair. The
defendant characterized her first contact with the plaintiff as
1 The e-mail messages were not admitted into evidence.
3 a "friendly conversation." The defendant testified that during
the second telephone conversation, the plaintiff insulted her,
calling the defendant mentally unstable and referenced a sexual
assault that the defendant had confided to Edward about. The
defendant told the judge that she did not contact the plaintiff
again but that she did call the plaintiff's employer and
reported the fact that Edward and the plaintiff were in a dating
relationship, which the defendant claimed was against company
policy.
After the defendant testified, the plaintiff told the judge
that "all that she says is a lie. And these messages here, I
have all the proof that I need to show you. When this lady
contacted me at 3:54 in the morning, I didn't know who she was
. . . . Please read it so you will see she's a compulsive
liar." The judge turned to the defendant and said "Ma'am, I
just want to understand. Your testimony under oath is that
these are the only text messages that you sent?" While the
defendant had repeatedly testified that she had only contacted
the plaintiff twice, the defendant stated that "I have . . .
maybe like four or five few more of insults, yeah. That was
all." Although the record is not crystal clear, it appears that
the judge read the e-mail messages offered by the plaintiff.
The judge told the defendant that "the history of that
4 conversation, it's clearly not just that one conversation that
you both had. And the information directing her by name and
what was put, that's disturbing. That's disturbing. The whole
situation is disturbing."
The judge found that the plaintiff had established three or
more incidents in which she was in fear of the defendant. The
judge extended the harassment prevention order for a period of
six months.
In this appeal, the defendant argues, in essence, that the
plaintiff's testimony was not credible and that the defendant's
messages and actions did not rise to the level of harassment.
She also claims that the judge did not give her a fair
opportunity to be heard or allow her to present evidence, and
that the judge failed to consider the resulting harm that the
issuance of a 258E order would have on her and her autistic
child.
Discussion. To obtain a harassment prevention order, a
plaintiff must demonstrate "harassment," which the statute
defines in relevant part as "[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 does in fact cause fear, intimidation, abuse or damage
to property." G. L. c. 258E, § 1. In reviewing the issuance of
5 a harassment prevention order, "we consider whether the judge
could find, by a preponderance of the evidence, together with
all permissible inferences," that the defendant committed three
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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-658
Y.F.
vs.
E.O.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, E.O., appeals from the extension of a
harassment prevention order issued in favor of the plaintiff,
Y.F., pursuant to G. L. c. 258E, § 3 (258E order). We affirm.
Background. On April 17, 2025, an ex parte harassment
prevention order issued against the defendant, presumably based
on an affidavit supporting the plaintiff's complaint, in which
the plaintiff claimed that the defendant, whom she had never met
in person, had committed three or more acts of harassment
against her. See G. L. c. 258E, § 1; Gassman v. Reason, 90
Mass. App. Ct. 1, 7 (2016).
On April 29, 2025, a District Court judge held a two-party
hearing. Both parties were present and represented themselves. The affidavit in support of the harassment prevention order
described the following: In October 2024, the plaintiff
received a text message from an unknown number asking for her to
call the number back. The plaintiff did not return the call but
sent a text message and asked for the caller's identity.
Shortly thereafter, the plaintiff received a video call from the
defendant, who said that she knew that the plaintiff and the
defendant's husband, "Edward," were engaged in an affair. The
plaintiff responded that she was unaware that Edward was
married. The defendant told the plaintiff that she had obtained
from Edward's cellular telephone three videos of the plaintiff
that were of an intimate nature. Later, the defendant
threatened to distribute the videos to Edwards's contacts and to
post them online.
The plaintiff stated that the defendant continued to harass
her for the next five months, including by obtaining a job at
the plaintiff's place of employment; gaining access to the
plaintiff's work schedule and following her to her job and
threatening to talk to her supervisor; calling the plaintiff's
place of employment and sending e-mail messages to the
plaintiff's employer in an attempt to have her terminated;
continually calling the plaintiff until the plaintiff blocked
her cellular phone number and then contacting the plaintiff with
2 a different phone number; and, in voicemails and text messages,
threatening to kill the plaintiff. When the plaintiff warned
the defendant to stop contacting her, the defendant responded
that "she won't stop until she finish[es] me."
At the two-party hearing, the judge first heard from the
plaintiff, who testified that the defendant "keeps following me,
stalking me, calling my job, doing all that you can think of to
abuse me." The plaintiff told the judge that she had copies of
e-mail messages that she wanted the judge to review.1 Finally,
the plaintiff testified that the defendant claimed to have three
videos "of sexual content, and she's harassing me, saying that
she might upload them to the internet, so I am embarrassed about
it."
The judge then gave the defendant an opportunity to be
heard. The defendant told the judge that the plaintiff entered
her "matrimonial home" and "constantly sleeps over with my
husband, has [a] sexual relationship with my husband." The
defendant explained that she had never met the plaintiff and
repeatedly told the judge that she had only spoken with the
plaintiff on two occasions. The first communication was the
initial text message after she had discovered the affair. The
defendant characterized her first contact with the plaintiff as
1 The e-mail messages were not admitted into evidence.
3 a "friendly conversation." The defendant testified that during
the second telephone conversation, the plaintiff insulted her,
calling the defendant mentally unstable and referenced a sexual
assault that the defendant had confided to Edward about. The
defendant told the judge that she did not contact the plaintiff
again but that she did call the plaintiff's employer and
reported the fact that Edward and the plaintiff were in a dating
relationship, which the defendant claimed was against company
policy.
After the defendant testified, the plaintiff told the judge
that "all that she says is a lie. And these messages here, I
have all the proof that I need to show you. When this lady
contacted me at 3:54 in the morning, I didn't know who she was
. . . . Please read it so you will see she's a compulsive
liar." The judge turned to the defendant and said "Ma'am, I
just want to understand. Your testimony under oath is that
these are the only text messages that you sent?" While the
defendant had repeatedly testified that she had only contacted
the plaintiff twice, the defendant stated that "I have . . .
maybe like four or five few more of insults, yeah. That was
all." Although the record is not crystal clear, it appears that
the judge read the e-mail messages offered by the plaintiff.
The judge told the defendant that "the history of that
4 conversation, it's clearly not just that one conversation that
you both had. And the information directing her by name and
what was put, that's disturbing. That's disturbing. The whole
situation is disturbing."
The judge found that the plaintiff had established three or
more incidents in which she was in fear of the defendant. The
judge extended the harassment prevention order for a period of
six months.
In this appeal, the defendant argues, in essence, that the
plaintiff's testimony was not credible and that the defendant's
messages and actions did not rise to the level of harassment.
She also claims that the judge did not give her a fair
opportunity to be heard or allow her to present evidence, and
that the judge failed to consider the resulting harm that the
issuance of a 258E order would have on her and her autistic
child.
Discussion. To obtain a harassment prevention order, a
plaintiff must demonstrate "harassment," which the statute
defines in relevant part as "[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 does in fact cause fear, intimidation, abuse or damage
to property." G. L. c. 258E, § 1. In reviewing the issuance of
5 a harassment prevention order, "we consider whether the judge
could find, by a preponderance of the evidence, together with
all permissible inferences," that the defendant committed three
or more qualifying acts of harassment aimed at a specific
person. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015). No
specific findings are required if, after reviewing the record,
we can "discern a reasonable basis for the order in the judge's
rulings and order." G.B. v. C.A., 94 Mass. App. Ct. 389, 396
(2018). The plaintiff bears the burden of establishing that the
three acts were "maliciously intended," defined by the statute
as being "characterized by cruelty, hostility, or revenge."
A.T., supra, quoting G. L. c. 258E, § 1.
The defendant argues that there was insufficient evidence
for the judge to have found that she committed three qualifying
acts of harassment. We are not persuaded. Here, the plaintiff
presented evidence that the defendant repeatedly contacted her
by calling her on the telephone, leaving voicemails, and sending
text messages. The defendant threatened to kill her in text
messages and voicemails, changed her place of employment to that
of the plaintiff, and followed her to her job. At the hearing,
the judge implicitly credited the plaintiff's version of these
events, disbelieved the defendant's version, and concluded that
the evidence qualified as harassment under G. L. c. 258E, § 1.
6 In sum, the plaintiff's affidavit and testimony at the
evidentiary hearing amply support three separate and distinct
acts of harassment.
The defendant argues that, while her text messages to the
plaintiff were "emotionally reactive," they were not made with
the intent to place the plaintiff in fear of physical harm.
When an alleged act of harassment consists solely of speech, it
"must be either a 'true threat' . . . or 'fighting words.'"
A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018), quoting O'Brien
v. Borowski, 461 Mass. 415, 425 (2012). True threats include
"direct threats of imminent physical harm" and "words or actions
that -- taking into account the context in which they arise --
cause the victim to fear such [imminent physical] harm now or in
the future." O'Brien, supra. Especially when viewed in the
context of the defendant's other hostile and unwanted conduct
directed at the plaintiff, the record supports a conclusion that
the defendant's statements in which she threatened to kill the
plaintiff and "finish her" caused the plaintiff to fear imminent
physical harm. See A.T., 88 Mass. App. Ct. at 536 (defendant's
threat to "make your life a living hell" fell within definition
of "true threat").
Turning to the defendant's argument that the plaintiff's
testimony was not credible, "[w]e accord the credibility
7 determinations of the judge who heard the testimony of the
parties . . . [and] observed their demeanor . . . the utmost
deference" (quotation and citation omitted). Noelle N. v.
Frasier F., 97 Mass. App. Ct. 660, 664 (2020). The judge had
the opportunity to evaluate the witnesses' demeanor and credited
the plaintiff's testimony about the defendant's three acts of
harassment. The judge noted the discrepancy in the defendant's
testimony and questioned her about the number of messages the
defendant sent to the plaintiff. The judge also characterized
the defendant's text messages as "disturbing." "We are in no
position to substitute our judgment for that of the judge on
credibility questions." Commonwealth v. Werner, 81 Mass. App.
Ct. 689, 698 (2012).
For the first time on appeal, the defendant contends that
the judge erred in failing to consider an audio recording of the
plaintiff making threatening and defamatory remarks to the
defendant. She also contends the judge erred in failing to
consider a document from the defendant's employer that would
rebut the plaintiff's stalking allegation and that the judge
improperly considered privileged communication between the
defendant and her husband.
We agree with the defendant that a hearing for a harassment
prevention order must comport with fundamental requirements of
8 due process. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4
(2019). These requirements include fair notice of the
proceedings, a meaningful opportunity to be heard, a right to
testify, a right to present evidence, and a right to cross-
examine witnesses. See Idris I. v. Hazel H., 100 Mass. App. Ct.
784, 788 (2022). Because proceedings under G. L. c. 258E are
protective and not penal, "the rules of evidence need not be
followed, provided that there is fairness in what evidence is
admitted and relied on." A.P. v. M.T., 92 Mass. App. Ct. 156,
161 (2017), quoting Frizado v. Frizado, 420 Mass. 592, 597-598
(1995), abrogated on another ground by Zullo v. Goguen, 423
Mass. 679, 681 (1996).
Here, after the judge announced her decision to extend the
harassment order, the defendant mentioned that she had her
employment application and denied the plaintiff's claim that she
applied to the plaintiff's employer for the purpose of harassing
and stalking her. The defendant also revealed that she had a
voice recording of the plaintiff "rape shaming" her. The
defendant did not move to introduce either the audio recording
or the employment application as exhibits during her testimony
and did not object when the plaintiff asked the judge to read
the messages sent by the defendant to her husband. We conclude
that the defendant has waived any due process claim regarding
9 the procedure followed by the judge. See Diaz v. Gomez, 82
Mass. App. Ct. 55, 63 (2012) (failure to raise due process claim
in trial court waives any due process claim on appeal).
Even if the claims were not waived, we discern no error.
In harassment prevention hearings, the general practice is that
"the law of evidence should be applied flexibly by taking into
consideration the personal and emotional nature of the issues
involved, whether one or both of the parties is self-
represented, and the need for fairness to all parties."
Mass. G. Evid. § 1106 (2025). As in abuse prevention hearings
under G. L. c. 209A, the court process "is intended to be
expeditious and as comfortable as it reasonably can be for a lay
person to pursue. Judges often must deal with large numbers of
these emotional matters in busy court sessions. The process
must be a practical one." Frizado, 420 Mass. at 598. Applying
these standards, we discern no due process violation. The
record shows that each party was given a fair opportunity to be
heard and does not suggest that the defendant was limited in any
part of her defense. Contrast Idris I., 100 Mass. App. Ct. at
789 (due process violation where judge "did not respond" to
counsel's repeated protest). In fact, the record reflects that
the judge acted fairly and conscientiously towards both parties.
For instance, at one point during the hearing, the defendant
10 apologized for using "a lot of hand gestures" during her
testimony. The judge reassured the defendant, saying "you're
fine," and the defendant continued to explain her version of
events. Finally, the judge did not interrupt the defendant when
she testified at length about a variety of personal issues such
as the impact that a harassment prevention order would have on
herself and her autistic son, as well as other personal details
about her mother's health issues and death. A review of the
transcript supports our conclusion that the defendant had a full
and fair opportunity to challenge the plaintiff's evidence and
present a defense and that she did not suffer from a denial of
due process.2
Order dated April 29, 2025, extending harassment prevention order affirmed.
By the Court (Shin, Walsh & Allen, JJ.3),
Clerk
Entered: March 17, 2026.
2 Finally, there is no merit to the defendant's claim that the judge erred in failing to make specific factual findings related to the best interests of the defendant's seven year old child, as that is not a relevant inquiry in a G. L. c. 258E proceeding.
3 The panelists are listed in order of seniority.