Opinion
15-P-1485
02-28-2017
T.P. v. S.R. & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal from the entry of harassment prevention orders. They assert that the evidence failed to show three or more of the acts required by G. L. c. 258E, § 1, inserted by St. 2010, c. 23. Here, the judge made a limited finding after reviewing a video tape presented by the plaintiff. Because the judge did not make additional factual findings, we cannot determine whether he made findings of three acts of harassment aimed at the plaintiff by each defendant. We vacate the orders without prejudice and remand the case for an evidentiary hearing.
Background . On April 21, 2015, the plaintiff filed complaints, together with affidavits, seeking protection from the defendants pursuant to G. L. c. 258E. On April 24, 2015, a hearing on the plaintiff's requests for harassment orders was conducted. Over the defendants' objection, an audio video recording from April 18, 2015 was played for the judge. After hearing from S.R. and an argument from defense counsel regarding the sufficiency of the plaintiff's showing, the judge issued the orders for one year. The judge stated: "Maybe the Appeals Court will disagree, but their language is over the top and I find it to be harassment."
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).
Here, the judge's only finding was "their language is over the top and I find it to be harassment." The judge's limited finding leaves us to examine the record in order to find support for his rulings. We have carefully reviewed the record in this case and it is difficult, if not impossible, to determine whether the plaintiff has presented sufficient evidence of three acts for each of the defendants. It is unclear whether the judge's finding related only to the events depicted in the video tape of April 18th or to other events described in the plaintiff's affidavit. A defendant 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 v. Reason , supra at 8, however, we cannot discern from the present record on what basis the judge issued the orders. We understand that c. 258E does not require the judge to make findings, however, where the judge made a limited finding, our review in this case is hampered by the judge's lack of additional findings.
We vacate the harassment prevention orders without prejudice and remand the case for further proceedings consistent with this memorandum and order.
So ordered .
Vacated and remanded .
We use initials instead of the plaintiff's name. See 18 U.S.C. § 2265(d)(3) (2012).