Opinion
16-P-1025
04-20-2017
H.S. v. D.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, H.S., sought an abuse prevention order under G. L. c. 209A against the defendant, D.M., the father of her child. After an evidentiary hearing on the extension of the temporary ex parte order, a District Court judge denied further relief under c. 209A, but instead issued a one-year harassment prevention order under G. L. c. 258E. The defendant appeals; we vacate the harassment prevention order.
Background. At the extension hearing held on January 8, 2016, the plaintiff appeared pro se and the defendant, a probation officer, was represented by counsel. The plaintiff testified that after many years of estrangement from the defendant, with their only contacts having to do with the defendant's child support obligation, the defendant appeared one day at her family's home seeking "closure" and asking her to release him from his child support obligation. When the plaintiff refused, telling the defendant to seek relief in court, the defendant appeared in front of the house every Sunday for the next two or three months making the same appeal. The plaintiff then moved out of her family's house, not telling the defendant her new address, but after two or three months the defendant appeared at her new residence. When she refused to talk to him, the defendant put his foot in her doorway as she tried to close the door. She told him "that he was scaring [her]."
The defendant changed tactics and began leaving letters for the plaintiff. The first was taped to her family's front door, and the next three were mailed to her at her new address. A fifth letter was placed on the windshield of her car, outside her new home, the night after she filed her complaint for the G. L. c. 209A order. All five letters were introduced as exhibits. The defendant denied that he had written or delivered any of them. The judge noted that the letters contained offensive language, but no "overt threat."
After hearing argument from both parties, the judge declined to extend the c. 209A order, determining that the plaintiff had not proven by a preponderance of the evidence that she was in imminent fear of physical harm by the defendant. Having denied relief under c. 209A, however, the judge, sua sponte, found that the defendant had "engaged in three or more acts that were specifically designed or intended to cause [the plaintiff] intimidation, distress and harassment," and stated that she intended to issue a harassment prevention order under G. L. c. 258E. The defendant immediately objected on the ground that the plaintiff has not requested a harassment prevention order. The judge overruled the objection, and the order entered.
The judge stated, "I think it is entirely within my right as a judge to determine that although the plaintiff didn't meet her burden under that—and she may not have been told about what a 258E order is by the civil clerk's office.... [R]egardless, I can certainly—I have the discretion, as a judge, to issue that order. I find that the testimony and the exhibits would have been exactly the same if the plaintiff had come in under a 258E order."
Discussion. The defendant contends that the judge violated his due process rights by treating the plaintiff's c. 209A petition as a c. 258E petition after the evidence had closed and without any prior notice to him. We agree.
Basic due process considerations apply in the context of both G. L. c. 209A and G. L. c. 258E. See Frizado v. Frizado, 420 Mass. 592, 596-598 (1995) ; C.O. v. M.M., 442 Mass. 648, 656-657 (2004) ; F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 601 n.14 (2015). "First, any order must provide the defendant with reasonable notice and an opportunity to be heard." Caplan v. Donovan, 450 Mass. 463, 470 (2008). In addition, the defendant is entitled to a "meaningful opportunity to challenge the other's evidence." F.A.P., supra at 601, quoting from C.O., supra at 657.
The elements and emphases of c. 209A and c. 258E are different. In addition to requiring a family or household member relationship, "a protective order under c. 209A requires a finding of ‘abuse,’ [whereas] a protective order under c. 258E requires a finding of ‘harassment.’ " O'Brien v. Borowski, 461 Mass. 415, 419 (2012) (citations omitted). When, as here, the alleged abuse consists of "placing another in fear of imminent serious physical harm," G. L. c. 209A, § 1(b ), as appearing in St. 1990, c. 403, § 2, a plaintiff seeking a c. 209A order must show both that she is currently in fear of such harm and that such fear is reasonable. See Iamele v. Asselin, 444 Mass. 734, 737 (2005) ; Smith v. Jones, 75 Mass. App. Ct. 540, 543-544 (2009). To prove harassment under G. L. c. 258E, the plaintiff "must prove that the defendant, motivated by cruelty, hostility, or revenge, wilfully committed three or more acts aimed at a specific person, each with the intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property, which, considered together, did in fact cause fear, intimidation, abuse, or damage to property." O'Brien, supra at 426.
Here, the defendant successfully challenged the plaintiff's evidence under c. 209A. Had he been given notice that the judge intended to consider the plaintiff's complaint under the c. 258E standard, he might have adduced additional evidence or made legal arguments testing whether the facts satisfied the relevant standard. Accordingly, we vacate the harassment prevention order.
The plaintiff is free to file an application for a harassment prevention order under c. 258E, or even a new application under c. 209A, if warranted by changed circumstances since the denial of her original c. 209A application.
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Harassment prevention order entered January 8, 2016, vacated.