P.M. v. K.H. (2024)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This is an appeal from an order extending a harassment prevention order issued pursuant to G. L. c. 258E. The District Court judge issued the initial c. 258E order, after an evidentiary hearing with both parties present, on May 13, 2022. The judge made explicit findings on the record as to the three acts of harassment that justified the initial order. That order was not appealed. The judge issued the second c. 258E order -- the order subject to the present appeal -- approximately one year later, on June 20, 2023 (c. 258E extension order).

On appeal, the defendant K.H. urges that the c. 258E extension order was entered in error and must be vacated. Virtually all of the defendant K.H.'s arguments, however, are directed to whether the initial c. 258E order was proper. The defendant argues that the judge's findings were clearly erroneous as to two of the three acts found by the judge, and that the third act the judge found also could not qualify under c. 258E, because it involved only speech protected by the First Amendment to the United States Constitution. The defendant's arguments are misplaced, however, because the question on this appeal is not whether the initial c. 258E order was properly issued; rather, the question is whether there was a “continued need for the order” under the facts before the judge (citation omitted). Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 259 (2022). Here, the judge found such a continued need, and we perceive no error in her doing so. We accordingly affirm.

Discussion. In Iamele v. Asselin, 444 Mass. App. Ct. 734, 740, 742 (2005), the Supreme Judicial Court explained that when considering an extension order, the trial judge does not reconsider the findings underlying the initial order:

“The judge is to consider the basis for the initial order in evaluating the risk of future abuse should the existing order expire. This does not mean that the restrained party may challenge the evidence underlying the initial order.

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“No appeal was taken from that [initial] order. Its underlying basis was not to be reviewed, nor its validity second guessed at the extension hearing.”

The judge who presided over the extension hearing in this case was well aware of the above law. Indeed, she explained the same to the defendant's counsel several times during the course of the extension hearing. At the close of the hearing, the judge found that there was a continuing need for a c. 258E order against the defendant K.H. That finding was based in part, and appropriately, on the evidence of harassment adduced when the initial order entered a year earlier. But the finding was also based on significant new evidence -- that is, testimony that after the initial order was in effect, the defendant had again verbally abused the plaintiff's minor son, who has special needs, using language and terminology appropriately described as vile and unconscionable. We review the judge's extension order for abuse of discretion or other error of law. See Yasmin Y., 101 Mass. App. Ct. at 256. Here, there was sufficient evidence before the judge to support her finding of a continuing need for the order, and we perceive no abuse of discretion in light of the facts adduced at the two hearings.¹

Order entered June 20, 2023, affirmed.

FOOTNOTES

1.   Even if we were to consider the propriety of the initial order, we would uphold same. The judge's findings that there were two prior assaults on the minor child (one with a broom and one with a rake) were supported by eyewitness testimony in the record and were not clearly erroneous. We of course give great deference to credibility determinations made by the judge based on such testimony. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). Furthermore, the defendant's lengthy verbal assault on the child while his parents were present -- during which the defendant repeatedly swore, used vile terms (e.g., “retard”), and belittled the child, amounted to “fighting words” not protected by the First Amendment. See O'Brien v. Borowski, 461 Mass. 415, 423 (2012).