K.C. v. P.O.

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

25-P-730

K.C.

vs.

P.O.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a harassment prevention order

issued following a two-party hearing after notice, pursuant to

G. L. c. 258E, § 3. Concluding that the order was not supported

by evidence of three separate acts of willful and malicious

conduct, we remand for entry of orders vacating and setting

aside the order.

Background. On April 29, 2025, a District Court judge

conducted a two-party hearing after notice to the plaintiff and

defendant. The plaintiff testified and offered in evidence

three photographs of a post from the defendant's Facebook page.

The defendant did not testify. According to the plaintiff, the

defendant was the plaintiff's ex-husband's ex-girlfriend.

Discussion. We review an order pursuant to G. L. c. 258E

to determine "whether the judge could find, by a preponderance
of the evidence, together with all permissible inferences, that

the defendant 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.'" A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015),

quoting G. L. c. 258E, § 1. Accord J.C. v. J.H., 92 Mass. App.

Ct. 224, 227 (2017). In this context, willful and malicious

conduct is defined as acts "characterized by cruelty, hostility

or revenge." O'Brien v. Borowski, 461 Mass. 415, 420 (2012),

quoting G. L. c. 258E, § 1.

In her affidavit in support of the application, the

plaintiff alleged three incidents of harassment: (1) on April

17, 2025, the defendant circled the area of the plaintiff's

workplace trying to intimidate her; (2) on April 21, 2025, the

defendant drove by the plaintiff's workplace and yelled, "I'll

see you in Byfield tomorrow" (Byfield was the location of the

plaintiff's daughter's softball game); and (3) on April 23,

2025, the defendant was parked down the street from the

plaintiff's house. During the hearing, the plaintiff reaffirmed

these assertions. However, these claims lacked any context or

specific information about the defendant's behavior that would

permit an inference as to intent, and therefore cannot

reasonably be construed as "intimidation, intending to cause

2
fear of physical harm or damage to property." Gassman v.

Reason, 90 Mass. App. Ct. 1, 9 (2016).1

The plaintiff also testified at the hearing that the

defendant posted on Facebook a photograph of the plaintiff's

mother's grave with the message, "twenty-five years is a long

time . . . join her. Try some pills with that Tito's - You left

a handle in that garage."2 Even if we were to consider this

Facebook post as qualifying conduct, it would constitute only

one of the three acts of harassment required to issue an

harassment prevention order under the statute. See G. L.

c. 258E, §§ 1, 3.

In sum, we conclude that the harassment prevention order

against the defendant should not have issued because it was not

supported by evidence of three separate acts of willful and

malicious conduct. Therefore, we remand the case to the

District Court for entry of an order vacating and setting aside

1 Under different circumstances, repeatedly appearing at a
person's place of work or home might well be qualifying conduct
under c. 258E. See, e.g., V.J. v. N.J., 91 Mass. App. Ct. 22,
27 (2017) (defendant's confrontation on bus where plaintiff
worked as driver along with stated goal of engaging in daily
confrontations was act of harassment).

2 The plaintiff testified at there were other concerning
Facebook posts, but they "could have been towards anyone because
there was no evidence that [they] had a connection to me." See
F.K. v. S.C., 481 Mass. 325, 332 (2019) ("As a threshold matter,
a plaintiff must demonstrate that a defendant engaged in [three]
or more acts, each aimed at a specific person" [quotations and
citation omitted]).
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the April 29, 2025 harassment prevention order and ordering

destruction of "all record" of the order as required by G. L. c.

258E, § 9. See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 132 n.17

(2017).

So ordered.

By the Court (Meade,
Massing & Brennan, JJ.3),

Clerk

Entered: February 18, 2026.

3 The panelists are listed in order of seniority.
4