Opinion
16-P-725
02-06-2017
L.B. v. James MADRUGA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the extension of a harassment prevention order. He asserts that the evidence failed to show three or more of the acts required by G. L. c. 258E, § 1. Because we conclude that the judge erred by not hearing evidence on the plaintiff's request for an extension, we vacate the judgment without prejudice and remand the case for further proceedings consistent with this memorandum and order.
Background . On February 24, 2016, the plaintiff filed a complaint, together with an affidavit, seeking protection from the defendant pursuant to G. L. c. 258E. After an ex parte hearing, an order issued granting the plaintiff the requested relief. The order provided the police department with notice that "[a]n imminent threat exists of bodily injury to the [p]laintiff." By its terms, the order expired on March 9, 2016.
On March 9, 2016, another judge conducted a hearing on the plaintiff's request to extend the order. Over the defendant's objection, a report prepared by Evidaunt Investigations, Inc., was introduced into evidence. The report was prompted by the plaintiff's complaints regarding the defendant's behavior; it details several unpleasant encounters between the defendant and others. Also introduced at the hearing were police reports dated February 25, and August 31, 2015. The February report details officers' response to a meeting wherein the chair requested that the defendant be removed because he was "being ‘disorderly’ and speaking out of turn." In the August report, the plaintiff complained to the police that the defendant was harassing her by encouraging an individual to follow her. The plaintiff also "brought [to the hearing] several witnesses who witnessed either one event or all three of them."
The defendant was not present at the hearing, despite being served in-hand on February 25, 2016, but he was represented by counsel.
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After considering the investigative report, the police reports, and the plaintiff's affidavit, the judge engaged the plaintiff in the following exchange:
THE COURT : "All right. Ma'am, you want to say something?"
THE PLAINTIFF : "Yes. If you—I'd like to go over the events. I do have it in this. This action—the action that I'm here in fear of has been going on since December 14th ...."
THE COURT : "You said you have witnesses today?"
THE PLAINTIFF : "I have five witnesses here today that were witnesses to irrational behavior that causes definite fear. As far as—"
THE COURT : "Directed at you or just in general?"
THE PLAINTIFF : "Directed at me. ...."
THE COURT : "Well, if you want me to hear from your witnesses, I will, but—"
THE PLAINTIFF : "I would like you to because ... I am in fear of my safety. This has not only affected my job, it's affected my personal life. It's affected everything. And it's been going on for two years."
"...
THE COURT : "I think I understand. Well, ma'am, listen, I gave you the option of hearing from your witnesses. I'd be inclined to do that if you like. But let me just be frank. I think you've already convinced me and I will be issuing this order."
THE PLAINTIFF : "Okay."
After hearing a brief argument from defense counsel regarding the sufficiency of the plaintiff's showing, the judge extended the order for one year. The judge denied defense counsel's request for written findings, stating that he had explained his thought process "on the record," that he credited the plaintiff's statements, and that to hear from the five witnesses would be "duplicative."
Discussion . "In reviewing a civil harassment prevention order, we consider whether the judge could find, 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.’ " Gassman v. Reason , 90 Mass. App. Ct. 1, 7 (2016), quoting from Seney v. Morhy , 467 Mass. 58, 60 (2014). "[T]he term ‘harass' has a specific definition in this context," Gassman , supra at 8, and "[t]he plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being ‘characterized by cruelty, hostility or revenge.’ " A.T . v. C.R ., 88 Mass. App. Ct. 532, 535 (2015).
Our review in this case is hampered by the judge's decision not to enter findings, leaving us to parse through the record in order to find support for his ruling. We have carefully reviewed all of the documents presented to the judge in this case and it is difficult, if not impossible, to determine whether the plaintiff has presented sufficient evidence of three acts. The plaintiff was prepared to offer the testimony of five witnesses, and she has the right to expect that her evidence will be considered by the court. The defendant, in turn, has the right to expect that an order will not issue unless it is based upon sufficient evidence. We understand that "[c]ivil harassment cases present a significant challenge in busy municipal and district courts," Gassman , supra ; however, the better practice is to allow both parties to present evidence.
We vacate the judgment without prejudice and remand the case for further proceedings consistent with this memorandum and order.
So ordered .
Judgment vacated and remanded.