Opinion
No. 14–P–35.
10-07-2014
Kelly KOLLAR v. George MARKWELL.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 5, 2012, the plaintiff filed a complaint for protection from abuse against the defendant. After hearing the plaintiff's testimony, a judge in the Dorchester division of the Boston Municipal Court issued an abuse prevention order pursuant to G.L. c. 209A, § 3 (209A order). At the July 12, 2013, hearing on plaintiff's request for an extension, at which both parties testified, and after reviewing the materials presented by the plaintiff, a second judge extended the 209A order for one year. The defendant appealed. We affirm.
On September 6, 2013, the defendant, represented by counsel, filed a motion to vacate the 209A order, which was opposed by the plaintiff. At the September 24, 2013, hearing on the motion, at which both parties were present, a third judge denied defendant's motion to vacate. On appeal, the defendant makes no mention of this motion and its denial. His record appendix and supplemental appendix do not include his motion to vacate, the plaintiff's opposition, or the transcript of the September 24, 2013, hearing.
While the defendant's brief purports to make an argument against the propriety of the initial ex parte 209A order entered on July 5, 2013, his notice of appeal was only from the order of July 12, 2013, that extended that order. “Assuming that such a separate challenge may be maintained, ... we need not address the issue because the defendant did not file a notice of appeal with respect to the ex parte order.” Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 2, 852 N.E.2d 679 (2006). His July 17, 2013, notice of appeal reads: “Defendant George Markwell hereby appeals the issuance of a restraining order against him under G.L. ch. 209A on July 12, 2013.”
The parties began a dating relationship in May, 2012, which ended approximately five months later, in October. At that time, the plaintiff learned that the defendant forwarded to himself her computer password trigger page, “stealing things from the [electronic mail message (e-mail) ].” This made her “paranoid and concerned.” After the break-up, the defendant called the plaintiff several times and showed up at her home unannounced. After she asked him to stop, he began leaving “nasty and threatening” voice mails and text messages. They contained things “that you would say to someone you absolutely hate and want to hurt,” “name calling” and statements about her character, things that were “awful.” The defendant also sent to the plaintiff's former husband an e-mail that the plaintiff presented to the judge. In addition, an advertisement of a personal nature about the plaintiff was posted on Craigslist, a classified advertising Web site. As a result of this advertisement, she received several messages from men unknown to her and had to contact Craigslist to have the advertisement taken down. The plaintiff believed that it was the defendant who placed that advertisement on Craigslist without her permission, and she e-mailed the defendant asking him “to please stop harassing” her, her former husband, and other individuals related to her and that if he did not, she would contact the police. At the time she sent this e-mail, she thought that her request “would end things, but it did not.” She had the locks changed and updated her home security system. She was fearful of the defendant.
The defendant conceded in testimony that he contacted the plaintiff's former husband because the defendant wanted to let him and the plaintiff know that the defendant knew they were “lying to [him] about where she had been, what she had done, who she was seeing,” that he believed “there [were] other men involved” and that “there was another relationship in the September time frame” even though he didn't “have any evidence of that.” He also testified that he found evidence of communications back and forth between the plaintiff and her former husband.
When she first came in to the police station to request a 209A order, the detective that she had been working with spoke with the defendant and thought that he would stop the harassment.
On July 5, 2012, the plaintiff received a call from the chief executive officer (CEO) of her professional association, in which she served as an elected officer, who advised her that someone made allegations of a racial and sexual nature against her. When the allegations were read to her, she realized that they were almost identical to ones the defendant made in his earlier e-mail to her former husband. When the plaintiff told the CEO that she thought this e-mail was written by the defendant, the CEO confirmed it.
During the July 12, 2013, hearing, the plaintiff stated the that the defendant had been harassing her for nine months after a five-month relationship. The plaintiff considered the defendant's e-mail to her CEO very concerning because the defendant wrote that it was “payback for the police report that [the plaintiff] filed on him.” The plaintiff testified:
The plaintiff presented at least eight documents to the judge, none of which appear to be included in the record appendix.
“Because his own words say that it was payback for my first police report, I left work to file a temporary restraining order and my second police report, and I am here now to extend that restraining order because I do believe Mr. Markwell is looking to harm me in any way that he can, and he has escalated over the last nine months.”
The defendant did not include either police report in the record appendix.
The plaintiff also testified that the defendant posted photographs of her to various Web sites, which the defendant admitted, as well as having entered photographs of the plaintiff in a photography contest, all without her permission. In addition, he confirmed sending the plaintiff an e-mail “anniversary card,” notwithstanding the fact that the plaintiff ended the parties' dating relationship in October of 2012. The plaintiff testified that “I think that was meant to harm me. Everything he has done was meant to harm me in some capacity, whether it be my professional career, whether it be my physical nature, whatever, but he is escalating.”
Long after the relationship was over, the defendant, on what would have been the parties' first anniversary had they continued dating, sent the plaintiff an e-mail message:
“Hi, honey. We made one year. Many more to come. Love you. Glad you remembered. Laugh out loud.” The e-mail prompted the plaintiff to talk to a police detective and to fill out a police report.
Discussion. A judge has broad discretion in deciding whether to extend a 209A order. See Vittone v. Clairmont, 64 Mass.App.Ct. 479, 485, 834 N.E.2d 258 (2005). “The only criterion for extending the original order is a showing of continued need for the order.” Doe v. Keller, 57 Mass.App.Ct. 776, 778, 786 N.E.2d 422 (2003), quoting from Pike v. Maguire, 47 Mass.App.Ct. 929, 929, 716 N.E.2d 686 (1999). In reviewing the judge's extension of the 209A order, “[w]e accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference.” Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 3, 852 N.E.2d 679 (2006), quoting from Pike v. Maguire, supra. “In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship.” Iamele v. Asselin, 444 Mass. 734, 740, 831 N.E.2d 324 (2005).
The defendant argues on appeal that the plaintiff failed to show that he placed her in fear of imminent serious physical harm. At the hearing, the plaintiff expressed her fear of the defendant's escalating behavior, which she considered to be intended to harm her. The judge “ ‘was entitled to credit the testimony of the plaintiff’ regarding her fear in the attendant circumstances and ‘to accept the reasonableness of her perception of that fear as a potential prelude to physical harm.’ “ Ginsberg v. Blacker, supra at 148, 852 N.E.2d 679, quoting from Pike v. Maguire, supra at 930, 716 N.E.2d 686.
Here, the judge heard evidence about the defendant's multiple actions directed toward the plaintiff after the end of their short relationship: his repeated placement of her private and personal information on the Internet, his taking of retaliatory action against her for contacting the police, his apparent lack of understanding that the plaintiff terminated the relationship in October of 2012, and his apparent lack of appreciation of the import of his actions. Last, but not least, the judge considered various materials presented by the plaintiff which the defendant did not include in the record appendix.
There is no indication that this court was at a similar disadvantage when reviewing the appeals in the cases cited by the defendant.
The defendant also argues that the plaintiff's evidence was insufficient because he had not previously physically harmed the plaintiff. However, the fact that the defendant had not previously physically harmed the plaintiff does not indicate that the plaintiff “could not have reasonably had an imminent fear of serious physical harm.” Ginsberg v. Blacker, supra at 145, 852 N.E.2d 679. General Laws c. 209A “focuses on preventing imminent serious physical harm, not merely responding to past abuse.” Dollan v. Dollan, 55 Mass.App.Ct. 905, 906, 771 N.E.2d 825 (2002). As to the defendant's claim that the plaintiff's only concern was for her career, not for her physical safety, it runs contrary to the plaintiff's testimony, summarized above, which the judge could credit.
Based on our review of the record, we discern no abuse of discretion or other error of law in the extension of the 209A order.
Order dated July 12, 2013, affirmed.