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D.F. v. A.F. (2021)

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Appeals Court of Massachusetts.

D.F. v. A.F.


Decided: April 09, 2021

By the Court (Blake, Desmond & Hand, JJ.1)


The defendant, A.F., appeals from an order to extend, and the denial of his motion to vacate, a harassment prevention order issued against him by a judge of the District Court under G. L. c. 258E.2 We affirm.

Background. We summarize the procedural history of the case, which is not disputed. The parties were previously married and are the parents of two minor children. At all times relevant to this appeal, the defendant has been incarcerated. In August, 2017, the plaintiff obtained an ex parte abuse prevention order under G. L. c. 209A against the defendant, alleging that the defendant had physically abused her in the past, and that he was incarcerated for violent crimes against her and had been ordered by the court not to have contact with her. On August 25, 2017, with both parties present, the judge held a hearing on the plaintiff's request for an extension of the abuse prevention order. At the hearing, the plaintiff produced four letters written by the defendant, and sent to the plaintiff's home while the defendant was incarcerated. The judge did not extend the abuse prevention order; instead, he issued a one-year harassment prevention order under G. L. c. 258E (HPO).

On August 31, 2017, the defendant filed a motion to reconsider and vacate the HPO on the grounds that the evidence was insufficient to support the issuance of an HPO, and suggesting a due process violation in the judge's conversion and extension of the ex parte abuse prevention order as an HPO. On September 1, 2017, the judge denied the motion in a thoughtful and detailed written memorandum. The defendant sought relief before a single justice of the Supreme Judicial Court, and, later, through an appeal to the full court under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), but was unsuccessful. The defendant did not seek further review of the denial of his motion.

On April 23, 2018, the defendant filed a second motion to vacate the HPO, this time arguing that the extension of the HPO violated due process and his rights under the First Amendment to the United States Constitution. On August 1, 2018, the judge denied his motion; in this second memorandum of decision, the judge explicitly incorporated the findings and rulings included in his earlier written decision. This appeal followed.3

Discussion. We begin with the defendant's due process claim. In defending against a complaint for either an abuse prevention order under G. L. c. 209A, or a harassment prevention order under G. L. c. 258E, a defendant is entitled to “reasonable notice and an opportunity to be heard,” Caplan v. Donovan, 450 Mass. 463, 470 (2008), and a “meaningful opportunity to challenge the other's evidence” (citation omitted). F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 601 & n.14 (2015). See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4 (2019) (basic due process applies in context of c. 209A and c. 258E proceedings). The criteria for issuance of abuse prevention orders and harassment prevention orders are not identical; each statute requires proof of elements that the other does not. Compare G. L. c. 209A, with G. L. c. 258E.

For these reasons, we acknowledge that if the record showed that the judge had converted the ex parte abuse prevention order to the HPO after the extension hearing on the ex parte order had concluded, and without providing the defendant with an opportunity to test the evidence against the requirements of G. L. c. 258E, it would raise a question whether the defendant's due process rights had been violated. See Caplan, 450 Mass. at 470; F.A.P., 87 Mass. App. Ct. at 601 n.14. Here, however, the record is inadequate to permit the necessary assessment. The defendant has not provided us with a transcript of the extension hearing, and thus has failed to provide any factual support for his due process claim.4 See Frizado v. Frizado, 420 Mass. 592, 598 (1995) (defendant not entitled to relief in absence of any allegation that proceedings were unfair); Roby v. Superintendent, Mass. Correctional Inst., 94 Mass. App. Ct. 410, 412 (2018) (requirement that litigants provide adequate record for appellate review applicable to pro se defendants; failure to do so generally “fatal” to appeal).

Turning to the defendant's First Amendment argument, we are not persuaded. “We review a c. 258E order to determine whether a fact finder could conclude by a preponderance of the evidence, together with all permissible inferences, that the defendant had 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” (quotation and citation omitted). R.S., 95 Mass. App. Ct. at 375, quoting Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016). “Malicious” conduct is “characterized by cruelty, hostility or revenge,” meaning that the acts “must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property.’ ” R.S., supra, quoting O'Brien v. Borowski, 461 Mass. 415, 420 (2012). See G. L. c. 258E, § 1.

Neither the judge's determination that the defendant's letters were intended for the plaintiff, nor his conclusion that the tone and content of the letters demonstrated his malicious intent in sending them, was clearly erroneous.5 As the judge noted, the defendant's letters blamed the plaintiff for his incarceration, accused her of infidelity and perjury, and in one case, included a veiled threat: “I am no coward [believe] me when I tell you I fear no one.” It was not an improper extrapolation for the judge to conclude that the defendant's motivation included hostility toward the plaintiff and a desire for revenge against her. As to the plaintiff's fear of the defendant, we decline to second-guess the judge's conclusion that the letters visibly frightened the plaintiff. See F.A.P., 87 Mass. App. Ct. at 601 (judge in best position to make credibility determinations).

The defendant contends that his words did not amount to “true threats,” and so were protected speech. We discern no error in the judge's determination to the contrary. As the defendant argues, the definition of harassment applies to speech only if the speech consists of “fighting words” or “true threats.” O'Brien, 461 Mass. at 422. The category of “true threats,” however, includes

“not only ․ direct threats of imminent physical harm, but [also] words or action that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future and evince intent on the part of the speaker or actor to cause such fear.”

Gassman, 90 Mass. App. Ct. at 8, quoting O'Brien, supra at 425. Based on the judge's findings of the defendant's intent in sending the letters, and the plaintiff's heightened fear of the defendant as a result of having received them, we are confident that there was no error.

Conclusion. The G. L. c. 258E extension order dated August 25, 2017, and the order denying the defendant's motion to vacate are affirmed.

So ordered.



2.   The plaintiff, D.F., did not participate in this appeal.

3.   The HPO was subsequently extended as a permanent order.

4.   We do not read the judge's statement, included in his 2017 memorandum of decision, that “[a]fter hearing [on the extension of the ex parte abuse prevention order] I found that the plaintiff had established a basis for issuance of an order pursuant to G. L. c. 258E,” to indicate that the judge made that determination after the evidence had closed, or that he failed to provide the parties with an opportunity to be heard on the extension of the order as an HPO.

5.   In his 2017 decision, the judge indicated that in making his determination, he considered his familiarity with “proceedings that occurred before me in the [District Court] prior to the defendant's trial in Superior Court and resulting incarceration.” The defendant has not raised a challenge to this statement, and his right to do so has been waived. See Furtado v. Furtado, 380 Mass. 137, 140 n.1 (1980).

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