Opinion
No. 12–P–1359.
2013-06-27
Barbara STRYER v. Nathan STRYER.
By the Court (TRAINOR, GRAINGER & HINES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a hearing on June 28, 2012, a judge of the District Court vacated a G.L. c. 258E harassment prevention order directed at the defendant, the plaintiff's former husband. The plaintiff appeals, arguing that the judge imposed a higher standard for continuation of a c. 258E order than is required by the statute, and that he abused his discretion in his consideration of the record. We affirm.
1. Background. The undisputed facts are as follows. The plaintiff and the defendant were married for twenty-three years before they divorced in or around December, 2000. All of their three children are adults, and the plaintiff and the defendant are in their mid-sixties.
Beginning in October and November, 2011, the defendant began sending the plaintiff voice mail messages and electronic mail messages (e-mail) complaining about various matters and generally threatening that he would contact her employer if she did not remedy the situation.
The defendant eventually did contact the plaintiff's employer, who responded by checking to see if the plaintiff was all right. Thereafter, on November 4, 2011, the plaintiff applied for a c. 258E harassment prevention order. The order entered the same day with a continuation hearing set for two weeks later. On November 18, 2011, the order was extended to May 18, 2012, following a hearing at which both parties were present. The May hearing date was continued, and a hearing on the order eventually was held on June 28, 2012, at which the plaintiff testified.
For example, the defendant complained frequently that the plaintiff was denying him access to their grown children. He also complained that she was denying him access to medical and dental insurance information that he was entitled to receive under the divorce settlement.
In addition to the communications supporting the order's issuance, the plaintiff also presented evidence that the defendant had violated the c. 258E order by contacting her employer,
The defendant was present and represented by counsel, but did not testify.
and had filed a civil contempt action against her regarding the parties' divorce settlement, which action later was dismissed.
According to plaintiff's counsel, the matter went before a magistrate, who declined to enter a violation and instead left the case open for a six-month “informal probation.”
At the end of the hearing, the judge terminated the order, concluding, essentially, that the defendant's conduct did not rise to the level of harassment required under the statute.
The judge also appeared to take into consideration the fact that, during the pendency of the order, the defendant had not directly contacted or communicated with the plaintiff.
During the course of the hearing, the judge commented that “a threat to call the employer is a little different than a threat to hurt somebody.... Why does that come under—maybe it's not a nice thing to do, but we don't—(inaudible) people to be nice,” and, “There doesn't seem to be much contact or any contact between the two of them. It's just this business with the calling the employer.... Well, there's been really—I mean the nature of the harassment, there's harassment and there's harassment. This is—if it fits under the statute, it barely fits under the definition of harassment.”
2. Discussion. The plaintiff first argues that the judge committed error by conditioning the extension of the order on a showing that additional harassment had occurred after the order went into effect. We are not persuaded.
General Laws c. 258E, § 3( d ), inserted by St.2010, c. 23, provides that: “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 be vacated or for refusing to issue a new order” (emphasis supplied). Here, although the judge did observe that the defendant had not contacted the plaintiff directly after the order went into effect, that fact was not his only consideration. Rather, the judge focused equally, if not more, on the severity of the defendant's conduct and its impact on the plaintiff. See note 4, supra.
The plaintiff also argues that the judge failed to consider the evidence of harassment on the record in reaching his decision, including the defendant's actions after the order went into effect (contacting the plaintiff's employer and filing a civil contempt action against her). Again, the claim has no merit.
“[A] protective order under c. 258E requires a finding of ‘harassment,’ defined in G.L. c. 258E, § 1, 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.’ “ O'Brien v. Borowski, 461 Mass. 415, 419 (2012). In O'Brien, supra at 425, the Supreme Judicial Court addressed the constitutionality of the language of c. 258E and concluded that harassment under the statute must be limited to fighting words and true threats. “ ‘True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.... The speaker need not actually intend to carry out the threat.” Id. at 423, quoting from Virginia v. Black, 538 U.S. 343, 359–360 (2003). The court also specifically narrowed the meaning of the term “fear” under the statute to mean “fear of physical harm or fear of physical damage to property.” Id. at 427.
In this case, the judge repeatedly found that the defendant's actions, both direct and indirect, did not rise to the level of harassment required by the statute. See note 4, supra. The record supports the judge's findings. At the June 28 hearing, the plaintiff testified that she was “embarrassed and uncomfortable” about the defendant's actions and that the defendant wanted to “get[ her] in trouble and report[ ] on [her],” but nothing more. Accordingly, there was no evidence of fear, intimidation, abuse, or damage to property, much less evidence establishing that the defendant's actions constituted true threats, as required by O'Brien v. Borowski, supra at 423. There was no error.
Order terminating harassment prevention order affirmed.