R.S. v. W.S.

92 Mass.App.Ct. 1110

94 N.E.3d 438 (Table)

R.S.

v.W.S.

16–P–571

Appeals Court of Massachusetts.

Entered: October 20, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from an order of the District Court extending a harassment prevention order pursuant to G. L. c. 258E, inserted by St. 2010, c. 23. He argues, inter alia, that the plaintiff, who is his father, failed to meet his burden of proving harassment under the statute and that the order interferes with his right to petition as well as his freedom of speech. He urges us to determine that the plaintiff's "efforts to mislead the court" constitute fraud on the court and he seeks to expunge all record of what he characterizes as an improperly issued order. We affirm.

Procedural Background. This case has a slightly unusual history. The plaintiff appeared in the District Court seeking an ex parte harassment prevention order against his forty-eight year old son in February, 2015. The judge (first judge) issued the order and scheduled a hearing after notice. At the hearing after notice, both parties testified before a second judge, who extended the order until February 26, 2016. The defendant, now represented by counsel, filed a notice of appeal from the extended order to this court. There were further hearings in the District Court, before the first judge, on February 26, and March 17, 2016, as described infra. On March 17, 2016, the first judge extended the harassment prevention order permanently.

After the issuance of the February, 2015, one-year order, but prior to the issuance of the permanent order, a panel of this court heard the appeal from the February, 2015, order. On April 27, 2016, the panel remanded the matter to the second judge in the District Court for findings of fact; the panel retained jurisdiction. "In response [to the remand order], the judge ... declined to make findings, reporting that the transcript [did] not sufficiently refresh his recollection." Syrjala v. Syrjala, 89 Mass. App. Ct. 1135 (2016). The panel then concluded that the record from the February, 2015, extension hearing "does not show that the requirements of the statute have been satisfied," and "vacate[d] the one-year harassment prevention order" in a memorandum and order pursuant to Appeals Court rule 1:28. In so doing, the court noted, "We recognize that there may well be no practical effect of our ruling. The one-year order at issue in this case has been superseded by a permanent order for which the judge has made detailed findings. However, those findings are based on information that was not part of the record (either below or here) with respect to the one-year order at issue in this appeal and therefore they have no bearing with respect to the question before us." Syrjala, supra n.3. That permanent order is the subject of the present appeal.

Hearing on February 16, 2016. At the hearing on the permanent order, the plaintiff testified that, in 2009, when his adult son became ill with Lyme Disease, the plaintiff and his wife offered "to let him come and live with us." They paid for "most of his medical prescriptions, nutritional supplements, doctor's visits, which were numerous." The plaintiff testified that "none of this was covered by insurance so we footed the bill for that and were happy to do so." At the hearing on February, 22, 2016, he summarized the harassment for the judge:

THE PLAINTIFF : "I found [the defendant] lying upstairs in a room. He has heart issues so I called the ... EMTs. I thought he needed to go to the hospital. I thought [the defendant] was having perhaps a heart attack or something serious. [The defendant] refused to go. Uh, accused me of attempted murder. Accused me of dragging him out into a blizzard."

THE PLAINTIFF'S LAWYER : "Did you do that?"

PLAINTIFF : "No, absolutely not. And then the next morning at four [ A.M. ], uh, I was awakened by additional ... [p]olice officers. Uh, [the defendant] had called them again. Told them I had tried to break down his door. I was trying to kill him. And it, it was all lies. Um, as pointed out factually in all the numerous police reports, uh, they were at our house probably seven or eight times. And he accused me of, of a lot of other vile things. Locking up his medicine. He reported me to the [Department of Children and Families(DCF) ] as a danger to my grandchildren. He reported me to the State agency for, uh, disabled persons That I was ... had abused a disabled person. He put numerous vile postings on Facebook."

Later in his testimony, the plaintiff said that "more recently we have been served with a lawsuit suing us for 1.3 million dollars."

The plaintiff also testified that the defendant sent him an electronic mail message (e-mail) that said, "Once again, ... you placed me in extreme medical danger once again, intentionally, in addition to last week's murder attempts ... I have legally-possessed lethal weapons in my room, which I will use in self-defense if necessary." The plaintiff testified that this particular e-mail caused him to feel very afraid because he believed "the defendant is mentally unstable and [the plaintiff had] no idea what [the defendant] is capable of doing. All [he knew] is that [the defendant] has developed a hatred for his mother and his father. [He didn't] know where that came from."²

The judge made preliminary findings on the permanent order at the end of the hearing on March 17, 2016.³ The judge made "additional, more detailed findings of fact ... as ordered by the Appeals Court" on May 4, 2016, and, according to the record, they were transmitted to this court on May 9, 2016.⁴

The judge's decision. In his findings, the judge unequivocally found the plaintiff credible "about the numerous blatantly false claims made by [the defendant]. [The claims] were made knowingly by [the defendant] with the intent of disparaging, embarrassing and otherwise causing his father anxiety and fear for his personal safety. He also feared and continues to fear that his son may cause damage to his home and other property as a result of his threats."

The judge gave particular examples:

"On 2/17/2015, [the defendant] filed a complaint with the [Massachusetts] Disabled Persons Protection Commission stating that the plaintiff had dragged him down the stairs and onto the snow. The report was forwarded to the [local] [p]olice for investigation and found to be totally fabricated. On 2/23/2015, the [p]laintiff was notified by the [local] [p]olice that DCF had asked them to investigate a report (filed by the [d]efendant) regarding two grandchildren whom [the plaintiff and his wife] care for two days per week. The report claimed that the two grandchildren were in danger because of the [p]laintiff. DCF also interviewed the [p]laintiff's other son, ... who is the children's father, about the matter. This report was found to be a total fabrication by the [d]efendant, meant to harass and intimidate the [p]laintiff.

"As a result of [the defendant's] hostility and threatening actions in the home, the [p]laintiff and his wife became fearful. They began locking their bedroom door at night and pushed a file cabinet in front of the door. On 2/14/2015, the [p]laintiff's wife became afraid that [the defendant] would cause her harm, so she began staying at a hotel. The [p]laintiff stayed at the house to protect his property and business. He continued to always lock his bedroom door and kept a file cabinet behind the door for safety at night.

"The [d]efendant has posted numerous e-mails of a threatening nature such as the following. He threatened his parents with legal action to take away [their] money and the parent's company. He said a large civil lawsuit is on the way for attempted murder. He posted, 'I have weapons ready in case [the plaintiff] tries to stab me .... Jail is not very compatible for a 72 year old.' [The defendant] posted on Facebook on 1/14/2016 that he filed multi-million dollar lawsuits against the [p]laintiff, members of his family, and the [local] [p]olice, and he has apparently filed several such lawsuits seeking millions in damages.

"The [p]laintiff feared that his son's words and actions were threatening and harassing. He feared that his son, the [d]efendant, would act on his threats to harm him, his family, and his home and business. His fears were reasonable and he continues to be in fear of what his son may do in the future to cause him harm."

The evidence admitted supports the judge's findings. In addition to the plaintiff's testimony, another son of the plaintiff also testified as did the plaintiff's wife. The other son was employed in the family business, which operated in the basement of the plaintiff's home. He testified that his father was in his seventies and that the defendant's actions had distressed his father to the point that his father could not focus on work "still to this day, more than a year later [because of] [c]ountless legal proceedings. Getting a lawsuit filed against him. Pouring through Facebook posts ... his friends sending him screenshots of Facebook ...."

That son also offered a copy of a report from the DCF after an investigation of the complaint that the defendant had filed regarding alleged neglect of the son's two young children who had been staying at the plaintiff's house with their grandmother, during school vacations for one child and a couple of days a week for a younger child. The document was marked as an exhibit and appears in the record. The complaint to DCF described the alleged neglect as permitting the children to remain in the home despite the fact that the plaintiff had "attempted to murder" the reporter three times the previous weekend.⁵ According to the DCF screener's redacted report on the defendant's complaint, the screener telephoned the children's father who said that he knew that the reporter was his forty-seven year old mentally ill brother. The children's father reported to the screener that his brother "is calling the police...