S.M. v. N.W.

99 Mass.App.Ct. 1129

170 N.E.3d 359 (Table)

S.M.

v.N.W.

20-P-785

Appeals Court of Massachusetts.

Entered: June 16, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a harassment prevention order entered after an ex parte hearing, under G. L. c. 258E, as well as from the one-year extension of that order.² Because we agree that the evidence did not establish that the defendant committed three qualifying acts, we vacate the orders.

Background. We summarize the evidence that was before the judge, both through the plaintiff's affidavit and his testimony. The plaintiff lived in an apartment with cotenants, one of whom was the defendant's boyfriend. The defendant was not herself a cotenant, but had lived in the apartment with her boyfriend for over one year.³ During that time, the defendant "continually disrupt[ed] and soil[ed] [the plaintiff's] household property," and had destroyed his "food and other things."⁴ The defendant displayed "clear hatred" towards him, and their relationship was frosty. On one occasion, after the plaintiff brought a household issue to the defendant's attention, she "stomped up to [him]," "got right up in [his] face" and "snarled" that the plaintiff's things were in her way in a "clear display of aggressive behavior." In general, the defendant "huffed and stomped and acted irate when he [was] around." When the plaintiff got a cold during the COVID-19 pandemic, the defendant's boyfriend, fearing coronavirus, threatened to murder the plaintiff on the defendant's behalf if the defendant got sick. Amplifying this threat, the defendant's boyfriend displayed a sheathed knife. This incident led to the boyfriend's arrest, and the plaintiff obtained a restraining order against the boyfriend. The plaintiff believed that the boyfriend's arrest gave the defendant (who was not a cotenant) "nothing to lose" because the arrest jeopardized her living situation and she would have to move out of the apartment. The plaintiff feared that the defendant might retaliate against him for her boyfriend's arrest.

Discussion. "[A] protective order under c. 258E requires a finding of ‘harassment,’ defined in c. 258E, § 1, 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.’ " O'Brien v. Borowski, 461 Mass. 415, 419 (2012). "In reviewing a civil harassment prevention order, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed ‘[three] or more’ " qualifying acts. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016), quoting Seney v. Morhy, 467 Mass. 58, 60 (2014). "The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being ‘characterized by cruelty, hostility[,] or revenge’ and that each act was intended to place the plaintiff in ‘fear of physical harm or fear of physical damage to property.’ " A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting O'Brien, supra at 427.

The evidence permitted the judge to find two qualifying acts: the occasion on which the defendant got into the plaintiff's face and snarled at him, and the time the defendant's boyfriend threatened to murder the plaintiff on her behalf. However, there was insufficient evidence of a third qualifying act. Although the judge could credit the plaintiff's testimony that the defendant "huffed and stomped and acted irate," the evidence does not support a finding that these actions were motivated "by cruelty, hostility[,] or revenge" or that these acts were "intended to place the plaintiff in ‘fear of physical harm or fear of physical damage to property." See Petriello v. Indresano, 87 Mass. App. Ct. 438, 445 (2015). Nor did the evidence show that these acts had the requisite effect on the plaintiff.

Accordingly, we vacate the harassment prevention...