NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
21-P-1082
S.N.
vs.
R.N.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, R.N., appeals from a permanent G. L. c. 258E
harassment prevention order entered against him in July 2021.
The plaintiff, S.N., is the defendant's sister. The defendant
claims on appeal that the judge erred by granting a permanent
order because the defendant had not violated the prior, one-year
order, and because the judge relied on evidence that was not
properly authenticated. We affirm.
Discussion. We note at the outset that the defendant
cannot challenge the permanent order because he requested the
judge to impose it. The judge entered the initial order in July
2020 and the plaintiff moved to extend it in July 2021. At the
end of the extension hearing, the judge stated that he intended
to extend the order by one year. Unprompted, the defendant
asked the judge to make the order permanent. The judge asked
both the plaintiff and the defendant to confirm whether they
wanted a permanent order; both parties confirmed the request
multiple times. The defendant immediately announced that he
intended to appeal but did not say on what grounds. Having
requested the order be made permanent, and confirming that
request, the defendant cannot change tactics on appeal. See
Commonwealth v. Freiberg, 405 Mass. 282, 288 (1989). See also
Commonwealth v. Thompson, 382 Mass. 379, 382 (1981) ("we shall
not disregard the theory of law on which the parties proceeded
at trial").
Even if the defendant's claims were properly before us,
they are without merit. Our review of a judge’s decision to
extend or make permanent a harassment prevention order is
limited to whether the judge abused his discretion. See
Crenshaw v. Macklin, 430 Mass. 633, 636 (2000) (concerning abuse
prevention order under G. L. c. 209A); Yasmin Y. v. Queshon Q.,
101 Mass. App. Ct. 252, 257 (2022) (courts may apply same
standards under G. L. c. 209A and G. L. c. 258E). Under G. L.
c. 258E, a judge may extend a harassment prevention order "for
any additional time reasonably necessary to protect the
plaintiff," or the judge may enter a permanent order. G. L.
c. 258E, § 3 (d); see Crenshaw, supra (grant of permanent order
is within judge’s discretion). Here, the judge heard testimony
from the plaintiff that while the initial order was in effect,
2
the defendant arrived at short notice at their elderly mother's
vacation home where he knew the plaintiff was staying, despite
the mother having told him to stay away. The defendant also
made repeated telephone calls to the mother at the vacation
home, during which he made insulting comments about the mother
and the plaintiff. The plaintiff further testified that the
defendant disparaged her repeatedly in e-mails to and
conversations with their siblings. Given this conduct, it was
not an abuse of discretion for the judge to conclude that
extending the order was necessary to protect the plaintiff from
harassment.1 See G. L. c. 258E, § 3. And since both parties
requested a permanent order, it was within the judge's
discretion to grant one. See Crenshaw, supra; Lonergan-Gillen
v. Gillen, 57 Mass. App. Ct. 746, 750 (2003) (noting permanency
of order is theoretical since either party may move to modify it
at any time).
1 The defendant claims that our evidentiary rules barred the
judge from viewing e-mails on the plaintiff's cell phone between
the parties' siblings describing this conduct. Nothing
prevented the judge from relying on the e-mails, however,
because "the rules of evidence need not be followed [in abuse
prevention proceedings], provided that there is fairness in what
evidence is admitted and relied on." Frizado v. Frizado, 420
Mass. 592, 597-598 (1995). See V.M. v. R.B., 94 Mass. App. Ct.
522, 526 (2018).
3
Finally, the defendant's claims relative to the original
harassment prevention order are waived because he did not appeal
from that order.2
Order dated July 28, 2021,
affirmed.
By the Court (Meade,
Wolohojian & Walsh, JJ.3),
Clerk
Entered: May 16, 2023.
2 In any event, the defendant's argument on appeal relative to
the original order seems to be that he was denied a "factual
finding" because of errors in the summons, primarily that the
summons indicated that the plaintiff filed the complaint under
G. L. c. 209A, not G. L. c. 258E. During the hearing on that
order, however, the judge asked the defendant to confirm that
the court clerk had sent him a copy of the complaint by e-mail.
The defendant confirmed that he had in fact received the
complaint and that it stated that it was a complaint for
protection from harassment under G. L. c. 258E. In this
context, the defendant had adequate notice of the nature of the
complaint. Moreover, the defendant filed several motions asking
the District Court to vacate, nullify, or reconsider the initial
one-year order, all of which were denied.
3 The panelists are listed in order of seniority.
4