K.R. v. N.S. (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, N.S., appeals from the extension of a harassment prevention order issued in favor of the plaintiff, K.R., pursuant to G. L. c. 258E, § 3 (258E order). On appeal, the defendant essentially argues that the judge abused her discretion because the plaintiff failed to present any new evidence establishing a continued need for the order. We affirm.

Background. On February 1, 2023, a judge of the District Court issued an ex parte harassment prevention order against the defendant, based on the testimony of the plaintiff and a supporting affidavit, in which the plaintiff claimed that the defendant, who was the plaintiff's upstairs neighbor, committed three or more acts of harassment against her. See G. L. c. 258E, § 1; Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016). The plaintiff also reported that there had been several incidents of “harassment” and “violent outbursts” by the defendant, alleging that the defendant threw a pot at the plaintiff's father and caused damage to the plaintiff's front door, hired landscapers to pour dirt and remove flowers planted by the plaintiff in the condominium building's yard, sent an email message referencing “religious texts,” and stalked the plaintiff using security cameras.

The plaintiff's affidavit also alleged that the defendant continually played her music at an excessive level causing the entire home to vibrate. The plaintiff sent the defendant an email message requesting that the defendant turn down the volume, but the defendant responded by turning the volume louder and stomping on the floor, causing the plaintiff to suffer headaches. According to the plaintiff, when the police responded to a noise complaint, the defendant turned down the music but then blared it again and stomped her feet once the police left.

At several two-party hearings, the 258E order was extended. Relevant here, at a two-party hearing on February 5, 2025, the plaintiff requested that the order be extended again. The plaintiff testified that she did not feel safe due to the defendant's history of harassment and that she needed the order extended so that she could feel safe in her home because the defendant was her neighbor. The defendant opposed the extension. After hearing from the plaintiff and counsel for the defendant, the judge extended the order for one year. This appeal followed.

Discussion. 1. Sufficiency of the evidence of the original 258E order. To obtain a harassment prevention order, a plaintiff must demonstrate “harassment,” which the statute defines in relevant part 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.” G. L. c. 258E, § 1. To the extent that the defendant asserts that the original 258E order improperly was improperly issued due to insufficient evidence of three separate acts of harassment, that issue is not before us because the defendant did not timely appeal from the issuance of the original 258E order.¹ Cf. Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.2 (2006).

2. February 5, 2025, 258E extension order. The defendant claims that the judge abused her discretion when she extended the order for one year. We review the decision to extend a 258E order for abuse of discretion. See Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022). At an extension hearing, the plaintiff is required to establish, “by a preponderance of the evidence, that extension of the order is reasonably necessary to protect the plaintiff from further harassment.” Danny D. v. Eli E., 102 Mass. App. Ct. 901, 901 (2023). At an extension hearing, the defendant is not allowed to challenge the evidence underlying the initial order, and the plaintiff does not need to reestablish the facts sufficient to support the original order. See Yasmin Y., supra at 258. Further, while the judge may consider the basis for the original order to determine the risk of future harassment if the existing order expires, “[t]his does not mean that the [defendant] may challenge the evidence underlying the initial order.” Iamele v. Asselin, 444 Mass. 734, 740 (2005). The judge considers “the totality of the conditions that exist at the time that the plaintiff seeks the extension, viewed in light of the initial [258E] order.” Id. at 741.

At the extension hearing, counsel for the defendant challenged the issuance of the harassment order. The judge correctly stated that she was “bound by the finding that the [j]udge had when they issued the order that -- that [it] qualified for a harassment order. My job today is to determine whether there's still a need for this order ․ [w]hether her fear of your client is still reasonable given the circumstances.” The judge then properly considered the plaintiff's affidavit in support of the original order and asked the plaintiff why she was requesting that the order be extended. The plaintiff testified that she needed the order extended to prevent the defendant from further harassing the plaintiff. The plaintiff told the judge that the defendant has harassed her since 2017, and that because the plaintiff and defendant resided in the same condominium building, she needed the order as she was “not safe from [the defendant's] abusive tactics or her harassment tactics.”²

We discern no “clear error of judgment in weighing the factors relevant to the decision” (quotation and citation omitted), L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), and conclude that the judge did not abuse her discretion in extending the 258E order. There was adequate evidence to support the extension. The defendant argues that the plaintiff's testimony was not credible, however, “[w]e accord the credibility determinations of the judge who heard the testimony of the parties ․ [and] observed their demeanor ․ the utmost deference” (quotation and citation omitted). Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020).

Next, the defendant argues that the judge erred in extending the harassment order because the plaintiff failed to establish continued harassment and no further incidents of harassment occurred. We disagree, as the plaintiff was not required to present new evidence of harassment to establish a continued need for the order. See G. L. c. 258E, § 3 (d) (“The fact that harassment has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or to be vacated or for refusing to issue a new order”).

3. Changed circumstances. Finally, the defendant argues that the 258E order should be vacated because of a material change in circumstances. The defendant states that, after the February 2025 hearing, the building that both the plaintiff and defendant resided in was destroyed by fire. Generally, on appeal, we review the decision based on the record before the trial judge. The subsequent fire in the condominium building, and the fact that the parties may no longer live in the same building, were not evidence before the trial judge and cannot be used to demonstrate that the judge erred in her decision extending the order. However, when a significant change in circumstances occurs after the hearing on the extension of the 258E order, either party can file a motion to modify or terminate an existing order. See G. L. c. 258E, § 3(e). We express no opinion on the merits of the filing of such a motion.

Extension order dated February 5, 2025, affirmed.

FOOTNOTES

1.   We note that included in the appendices is the transcript from the ex-parte order issued on February 1, 2023 and the plaintiff's affidavit in support of the harassment prevention order. However, the transcript from the two-party hearing on February 15, 2023, in which the order was extended for six months, was not provided.

2.   Counsel for the defendant cross-examined the plaintiff and then argued that the order should not be extended because there was no evidence of ongoing harassment since the last extension order.