M.P.1 v. R.D. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant, R.D., appeals from the extension of a harassment prevention order (order) issued pursuant to G. L. c. 258E, § 3. Concluding that the order was not supported by adequate evidence, we vacate.

“In reviewing a civil harassment order under G. L. c. 258E, 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 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 [did] in fact cause fear, intimidation, abuse or damage to property.’ ” A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015), quoting G. L. c. 258E, § 1. Accord J.C. v. J.H., 92 Mass. App. Ct. 224, 227 (2017).

Here, the judge found three acts, one occurring on Christmas Day 2016, one occurring in October 2017, and one occurring in December 2017. In the October 2017 incident, the defendant yelled at the plaintiff (his children's maternal grandmother) about divorce issues and putting soccer equipment on the defendant's child. There was no evidence of the defendant's intent to cause fear, intimidation, abuse, or property damage. “[T]his category of conduct, however nettlesome, does not justify the issuance of a c. 258E order.” F.W.T. v. F.T., 93 Mass. App. Ct. 376, 379 (2018). Such behavior, however inappropriate, cannot “reasonably be described as intimidation, intending to cause fear of physical harm or damage to property.” Gassman v. Reason, 90 Mass. App. Ct. 1, 9 (2016).

In the absence of three acts of harassment, the possibility that the defendant committed two acts of harassment is insufficient to justify the issuance of a harassment prevention order. See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 131 (2017). Accordingly, the order should not have been extended.

Order entered January 16, 2018, vacated.