Wilhelmina W. v. Uri U.

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22-P-44 Appeals Court

WILHELMINA W. vs. URI U.

No. 22-P-44.

Bristol. February 13, 2023. - May 24, 2023.

Present: Meade, Desmond, & Hand, JJ.

Harassment Prevention. Protective Order. Indecent Assault and
Battery. Res Judicata. Collateral Estoppel. Practice,
Civil, Presumptions and burden of proof, Waiver.

Complaint for protection from harassment filed in the New
Bedford Division of the District Court Department on October 5,
2021.

A hearing to extend the harassment prevention order was had
before Douglas J. Darnbrough, J.

Melissa Ramos for the defendant.

HAND, J. In 2016, after the defendant was charged with

multiple counts of indecent assault and battery, at least one of

which was committed against the plaintiff's minor child, the

plaintiff sought and obtained a harassment prevention order in

the District Court on behalf of the child. That order was based
2

exclusively on the defendant's alleged commission of the

indecent assault and battery on the child; as we will discuss,

that crime is one of a series of enumerated offenses defined as

"harassment" by G. L. c. 258E, § 1 (enumerated offenses).1 The

original order, as extended, lapsed in 2018. The defendant was

subsequently convicted and sentenced to a term of incarceration

on the indecent assault and battery involving the plaintiff's

child.

When, in 2021, the plaintiff learned that the defendant was

likely to be released on parole, she sought and obtained a

second harassment prevention order after notice against the

defendant; that second order was based on the same harassment –-

the indecent assault and battery on the plaintiff's child –- on

which the 2016 order had been based. The defendant appeals from

the order issued at the 2021 hearing after notice.2

The defendant's appeal requires us to determine the

standard of proof to which a plaintiff should be held where the

plaintiff has obtained a harassment prevention order after

notice on the basis of an enumerated offense, allowed the order

1 The enumerated offenses are violations of G. L. c. 265,
§§ 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43, and 43A, and
G. L. c. 272, § 3. G. L. c. 258E, § 1, inserted by St. 2010,
c. 23 (definition of "harassment," subsection [ii]).

2 The plaintiff did not file a brief and has not
participated in this appeal.
3

to lapse, and then seeks to obtain a subsequent order after

notice based on exactly the same conduct.3 We conclude that in

these circumstances, the judge may rely on collateral estoppel

principles to preclude a defendant from relitigating the

underlying harassment at issue in both the original order and

the complaint for a subsequent order. Where the judge does so,

a plaintiff need only prove, by a preponderance of the evidence,

a need for protection from the impact of the harassment to

justify the issuance of the subsequent order.

Background. On the record before us, the relevant

background facts, including those summarized above, are not

disputed. In 2016, the defendant was arraigned in the District

Court on a total of three counts of indecent assault and battery

on a child under age fourteen, G. L. c. 265, § 13B.4 At least

one of these charges was committed against the child at issue in

this appeal. The defendant's conditions of pretrial release

required him to stay away from and have no contact with the

child.

3 We leave for another day the determination of the standard
that applies where a plaintiff's first order is vacated, rather
than allowed to expire.

4 The record, supplemented by our review of the trial court
dockets, reflects that the defendant was charged in two separate
criminal complaints. The two complaints are not part of our
record but appear to have been joined for trial; the guilty
verdicts on all three were entered on the same day.
4

In March 2016, the child's mother (the plaintiff here)

obtained an ex parte harassment prevention order on behalf of

the child and against the defendant based on the indecent

assault and battery.5 After a hearing with notice to the

defendant, a judge extended the order for one year, to March

2017 (first order). The first order required the defendant to

stay away from and have no contact with the child. In March

2017, after a hearing with notice, the first order was extended

for an additional year, to March 2018.6 At the scheduled hearing

date in March 2018, however, neither party appeared, and the

order expired. See G. L. c. 258E, § 3 (d). The plaintiff did

not allege that the defendant ever violated the terms of his

pretrial release or the terms of the first order.

In 2019, the defendant was convicted of all three indecent

assault and battery charges at issue here. The trial judge

imposed consecutive sentences of two and one-half years on two

of the counts, with a ten-year probationary sentence on the

third one, running from the date of sentencing. The conditions

of probation required the defendant to stay away from and have

no contact with the child.

5 The plaintiff's affidavit detailed several instances of
the defendant's indecent touching of her child.

6The order was also modified on the March 2017 hearing
date. Nothing turns on that modification.
5

In 2021, after learning that the defendant had been granted

parole and was planning for release, the plaintiff returned to

the District Court and obtained a new harassment prevention

order on behalf of the child on an ex parte basis (second

order). In doing so, the plaintiff relied solely on the same

conduct underpinning the first order; she did not allege that

the defendant had violated the terms of his probation or engaged

in any additional misconduct.7 At the hearing after notice, the

defendant appeared with counsel and opposed the plaintiff's

request for an extension of the second order. The defendant did

not deny the fact of his conviction of indecent assault and

battery on the child, but argued, through counsel, that (1) the

stay away and no contact requirements the plaintiff sought

through a second order duplicated his conditions of probation

and parole, and therefore were unnecessary, and (2) where the

plaintiff had allowed the first order to lapse, she should be

precluded from seeking a second order, absent evidence of new

harassment. After the hearing, the judge extended the second

order for one year.

Discussion. In this appeal, the defendant urges us to

create a rule requiring that a plaintiff must show "good cause"

7 The plaintiff's affidavit stated, in its entirety, "[The
defendant] sexually assaulted my daughter. He was approved for
parole and may be getting released soon."
6

for the issuance of a subsequent order, applicable to the

limited category of cases in which a plaintiff (1) seeks and

obtains a harassment prevention order against a given defendant

based on the defendant's commission of a crime included in the

statutory definition of "harassment," see G. L. c. 258E, § 1;

(2) allows the order to expire; and (3) subsequently seeks

another harassment prevention order based solely on the same

crime.8 As reasons for the imposition of a new standard, the

defendant argues the need for "safeguards" against a plaintiff's

misuse of the process to obtain successive orders against a

given defendant and potential defendants' need for "finality"

absent any new harassing conduct. We decline the defendant's

invitation.9

1. Appellate standard of review. Our review of the order

at issue is "for an abuse of discretion or other error of law."

Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022),

quoting Vera V. v. Seymour S., 98 Mass. App. Ct. 315, 318

(2020). To determine whether the judge acted within his

8 We understand the defendant to argue that this showing
should be required in addition to the plaintiff's burden to
prove that he or she is "suffering from harassment." G. L.
c. 258E, § 3.

9 In doing so, we put aside the question whether the
defendant's argument would properly be addressed to the
Legislature, rather than the courts.
7

discretion, we must determine the appropriate burden of proof on

the plaintiff in the circumstances of this case.

2. Plaintiff's burden in seeking second order. We begin

with the observation that, generally, a plaintiff seeking a

harassment prevention order bears the burden of proving by a

preponderance of the evidence that the plaintiff (or, as in this

case, the person on whose behalf the plaintiff files the

complaint) is "suffering from harassment," F.A.P. v. J.E.S., 87

Mass. App. Ct. 595, 598 (2015), quoting G. L. c. 258E, § 3, and

that "an order [i]s necessary to protect her from the impact of

that [harassment]," Vera V., 98 Mass. App. Ct. at 319, quoting

Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-187 (2020).

See Tom T. v. Lewis L., 97 Mass. App. Ct. 698, 700 (2020) ("both

this court and the Supreme Judicial Court have applied

essentially the same analysis for abuse prevention orders issued

pursuant to c. 209A and harassment prevention orders issued

pursuant to c. 258E since c. 258E was enacted, except in

instances where the language of the statutes themselves

[requires a different result]"). "Harassment" is defined for

these purposes in two alternative ways. See F.A.P., supra at

599, citing G. L. c. 258E, § 1. As relevant here, "a plaintiff

can prove ['harassment' by demonstrating] that a defendant

committed any of twelve specifically enumerated sex crimes"

against the plaintiff (or here, the plaintiff's minor child),
8

including indecent assault and battery on a child, G. L. c. 265,

§ 13B. F.A.P., supra.

As we recently held in Yasmin Y., the same showing is

required where a plaintiff seeks an extension of a harassment

prevention order issued after notice, based on the defendant's

commission of one of the enumerated offenses against the

plaintiff. Yasmin Y., 101 Mass. App. Ct. at 257. "[T]he judge

should extend a harassment prevention order where the plaintiff

has suffered from a past sex offense delineated in G. L.

c. 258E, § 1, and the order is necessary to protect her from the

impact of that past sex offense." Id. In that circumstance,

"the plaintiff is not required to re-establish facts sufficient

to support that initial grant of an . . . order." Id. at 258,

quoting Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485 (2005).

We see no reasoned basis to require a more stringent

showing here. First, we note that nothing in the statute

suggests that a heightened burden of proof applies where a

plaintiff whose harassment prevention order against a given

defendant has lapsed later seeks a new order against that

defendant.10 See Commonwealth v. Rossetti, 489 Mass. 589, 593

10The defendant's argument acknowledges, as it must, that
there is no per se prohibition on a plaintiff's seeking more
than one harassment prevention order against the same defendant.
See Guidelines for Judicial Practice: Abuse Prevention
Proceedings § 3:08 commentary (rev. October 2021) ("judges and
court staff should make sure that plaintiffs are aware that they
9

(2022), quoting Commonwealth v. Newberry, 483 Mass. 186, 192

(2019) ("[T]he language of the statute . . . is 'the principal

source of insight' into the intent of the Legislature").

Second, where a plaintiff has already obtained a harassment

prevention order after notice based on the defendant's

commission of an enumerated offense and seeks a subsequent order

on the same ground, we are guided by principles of res judicata

(and specifically, issue preclusion, whether under that title or

as "collateral estoppel," Jarosz v. Palmer, 436 Mass. 526, 530

n.3 [2002]), which mitigate against the defendant's ability to

relitigate the fact of the defendant's harassment. See Bar

Counsel v. Board of Bar Overseers, 420 Mass. 6, 9 (1995).

"The doctrine of issue preclusion provides that when an

issue has been 'actually litigated and determined by a valid and

final judgment, and the determination is essential to the

judgment, the determination is conclusive in a subsequent action

between the parties whether on the same or different claim.'"

Mullins v. Corcoran, 488 Mass. 275, 281 (2021), quoting Jarosz,

436 Mass. at 530-531. In a case like the one before us, the

are not precluded from returning to court to seek an order of
protection" even where the plaintiffs have allowed previous
orders to lapse). See also F.A.P., 87 Mass. App. Ct. at 601
n.14 ("we see no reason why the Guidelines for Judicial
Practice: Abuse Prevention Proceedings should not apply equally
in harassment order proceedings, absent some issue particular to
harassment orders").
10

determination at a prior hearing after notice that the defendant

committed one of the enumerated offenses against the plaintiff's

child provides the necessary showing of "a valid and final

judgment." See Tausevich v. Board of Appeals of Stoughton, 402

Mass. 146, 149 (1988) (prior adjudication is "final judgment"

where "the parties were fully heard, the judge's decision is

supported by a reasoned opinion, and earlier opinion was subject

to review"). It is self-evident that the determination that the

defendant "harassed" the plaintiff's child is "essential to the

judgment," and that the claims in the first and subsequent

orders were identical (citation omitted). Mullins, 488 Mass. at

282. Provided the judge concludes that applying the issue

preclusion doctrine is "fair," Bar Counsel, 420 Mass. at 11, a

determination which would optimally, but not necessarily, be

made explicitly on the record, see Mullins, supra at 287, citing

Bar Counsel, supra, the plaintiff need not relitigate the fact

of the harassment when seeking a subsequent order based on

exactly the same harassment on which the prior order was based.11

We emphasize that our holding applies where a plaintiff
11

seeks a subsequent order based on exactly the same harassment
that was the basis of an earlier order. We likewise underscore
that a judge's assessment of the fairness of applying collateral
estoppel in the context of a harassment prevention order must
take into account the fact that "[t]he law [is] intended to
protect victims of 'harassment,' as that term is defined by
G. L. c. 258E § 1." J.S.H. v. J.S., 91 Mass. App. Ct. 107, 109
(2017). We do not suggest that a judge must or should apply
collateral estoppel as a basis to deny an order in these
11

To the extent the defendant argues that the plaintiff's

entitlement to an order in the circumstances here requires no

more than the plaintiff's ability to prove, by a preponderance

of the evidence, that the defendant committed12 an indecent

circumstances, as the application of the principles of
collateral estoppel, in the context of a harassment prevention
order, is a matter of the exercise of the judge's sound
discretion. Likewise, where a plaintiff's complaint for an
order is denied based on his or her failure to produce
sufficient evidence of harassment, principles of collateral
estoppel would not preclude a judge from issuing an order to the
same plaintiff against the same defendant if the plaintiff later
met his or her burden of proof with more or different evidence.
See G.B. v. C.A., 94 Mass. App. Ct. 389, 398 (2018) (in context
of abuse prevention order, collateral estoppel did not preclude
judge from issuing order because, inter alia, [1] record did not
show issues in prior complaints "were identical to those in this
case and therefore actually litigated," and [2] complaints
"recited both historical and new incidents involving the
defendant").

12The defendant speaks in terms of a defendant's
"conviction" of an enumerated offense. As we note above,
however, a plaintiff is only required to prove that a defendant
"committed" one of the enumerated offenses to be entitled to
issuance of a harassment prevention order on the basis of the
enumerated offense definition of harassment. Accordingly,
although the defendant here was actually convicted of the sex
offense at issue, that will not always be the case. See, e.g.,
Yasmin Y., 101 Mass. App. Ct. at 253 (harassment prevention
order based on plaintiff's testimony that defendant committed
indecent assault and battery against her); A.P. v. M.T., 92
Mass. App. Ct. 156, 163 (2017) (harassment prevention order
based on mother's testimony that defendant committed indecent
assault and battery against child); F.A.P., 87 Mass. App. Ct. at
596 (harassment prevention order based on "allegations,"
supported by mother's testimony, that defendant had digitally
raped child).
12

assault and battery on the plaintiff's child, he is mistaken.13

Even where the plaintiff has established the defendant's past

harassment, the plaintiff must prove an ongoing need for

protection from the impact of the harassment.14 See Yasmin Y.,

101 Mass. App. Ct. at 257, quoting Callahan v. Callahan, 85

Mass. App. Ct. 369, 374 (2014) ("[T]he judge must make a

discerning appraisal of the [plaintiff's] continued need for

[protection] from the impact of the violence already

inflicted"). For these reasons, we are not persuaded by the

defendant's argument that a higher standard of proof is required

to protect those in the defendant's shoes from a plaintiff's

misuse or abuse of G. L. c. 258E.15

13We reject the defendant's argument that the order at
issue was unnecessary in light of the defendant's conditions of
probation and parole requiring him to stay away from and have no
contact with the child. See Vera V., 98 Mass. App. Ct. at 319
(conditions of release, "even if they encompass the same
conditions as an abuse prevention order, are no substitute for
an abuse prevention order"); Tom T., 97 Mass. App. Ct. at 700.

14Because, as we discuss infra, we conclude the defendant's
challenge to the sufficiency of the plaintiff's evidence was
waived in this case, we do not address the particular showing of
need made in this case.

15Indeed, we consider such an argument to be on shaky
ground in the first place, given that (1) G. L. c. 258E was
enacted to protect the victims of harassment, not the
perpetrators; and (2) there is a qualitative difference in the
perpetrator's interest in "repose" and freedom from "vexatious
litigation" and the interests of the victim of any of the
enumerated offenses. For the purposes of this appeal, however,
we put those considerations aside.
13

3. Defendant's remaining arguments. At the hearing after

notice, the judge heard brief testimony from the plaintiff, then

heard argument from defendant's counsel. At the conclusion of

that argument, the judge asked defense counsel if there was

"[a]nything else you'd like to tell me?" Counsel responded,

"Not at this time, Your Honor." Where the defendant was given

an opportunity to be heard further and declined the offer, his

argument that he was not afforded a full evidentiary hearing on

the plaintiff's complaint for an order after notice was waived.

See Commonwealth v. Gill, 37 Mass. App. Ct. 457, 464 n.5 (1994).

The defendant's remaining arguments -- that the order was barred

by the doctrine of laches, and that public policy prohibited the

issuance of the order -- were not raised before the judge and so

are also waived. See Diaz v. Gomez, 82 Mass. App. Ct. 55, 63

(2012) ("through failure to raise this claim in the trial court,

the defendant has waived any due process objection to the

procedure followed by the judge"). We do not consider them.

Conclusion. Where a plaintiff against whom the defendant

has committed one of the offenses included in the statutory

definition of "harassment," G. L. c. 258E, § 1, or who brings a

complaint on behalf of another person on that basis, obtains a

harassment prevention order after notice on that ground against

the defendant, but later allows the order to lapse, the

plaintiff may seek subsequent harassment prevention orders
14

against the same defendant, based on the same conduct. If the

plaintiff does so, the judge may rely on collateral estoppel

principles to preclude the defendant from relitigating the

underlying harassment at issue in both the original order and

the complaint for a subsequent order. Where the judge does so,

the plaintiff need only prove, by a preponderance of the

evidence, a need for protection from the impact of the

harassment to justify the issuance of the subsequent order. The

order dated November 5, 2021, extending the harassment

prevention order, is affirmed.

So ordered.