C.A. v. G.S.

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

23-P-1339

C.A.

vs.

G.S.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Pursuant to G. L. c. 258E, the plaintiff, C.A., obtained an

ex parte harassment prevention order against the defendant, G.S.

Following a two-party hearing, a District Court judge

permanently extended the order (extension order). The defendant

now appeals from the ex parte and extension orders. The

defendant is not entitled to review of the ex parte order

because that order has been superseded by the extension order.

See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 563 (2017). We

conclude that the evidence supported the issuance of the

extension order but that the judge erred in extending the order

permanently. We therefore vacate the extension order to the

extent that it is permanent, affirm all other aspects of the
order, and remand to enable the judge to consider whether

extension of the order is warranted.

Discussion. 1. Evidence of harassment. The complaint

here generally alleged three acts of harassment. In addition to

her affidavit and testimony at the hearing, the plaintiff

presented sixty-two pages of Facebook posts made by the

defendant. Neither the plaintiff nor the judge specified which

acts presented by the evidence constituted harassment as defined

by G. L. c. 258E, § 1. "[W]e consider whether the judge could

find, by a preponderance of [this] 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. To

prevent chilling the defendant's constitutional rights to free

expression, we further consider whether the online remarks

posted by the defendant constitute "true threats" that include

"direct threats of imminent physical harm" or "words or actions

that —- taking into account the context in which they arise —-

cause the victim to fear such harm now or in the future and

evince intent on the part of the speaker or actor to cause such

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fear." O'Brien v. Borowski, 461 Mass. 415, 425 (2012),

abrogated on other grounds by Seney v. Morhy, 467 Mass. 58

(2014). Applying these standards to the evidence presented, the

judge could find a sufficient basis for the protective order.

According to the plaintiff's affidavit and testimony, the

extensive Facebook posts initially arose while the defendant and

his ex-girlfriend engaged in litigation in the Probate and

Family Court over the custody of their child. The plaintiff has

been the ex-girlfriend's attorney in that litigation, and since

2018 the defendant has continually "expressed his dismay" about

the litigation on social media. After the ex-girlfriend

obtained a favorable decision in the custody dispute, the

defendant's postings "escalated a bit" and then escalated again

in the few months before the two-party hearing. The plaintiff

became "concerned" about the escalation and threats and suffered

"emotional distress." With the Probate and Family Court

litigation ongoing, on August 2, 2023, the plaintiff filed her

complaint for protection and obtained the ex parte order.

At the two-party hearing two weeks later on August 15, the

plaintiff presented evidence of the escalating conduct. The

plaintiff testified that the defendant posted online "veiled

threats against [her] family," mentioned her children, and

displayed photographs of her street, residence, and yard. She

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further testified that he posted her date of birth and address,

stated that she did not "deserve to breathe the air that we live

in," and warned that if she "fuck[ed] with his family, he would

fuck with [hers] and he would come after them." Exhibits

offered by the plaintiff showed that the defendant posted on

Facebook that the plaintiff "doesn't deserve the air here[,]"

and he also wrote, "If you fuck with any of my family. You're

going to get me. Your kids may be held accountable for your

shit." Additional postings at other times pursued a similar

theme: "be careful with what you wish for"; "[s]how me the

picture of your house"; and "You'll end up like the guy in Dubai

I caught." The defendant also reposted a photograph of the

plaintiff's daughter that included positive comments about her

television broadcasting career, but that was marked up in red;

the defendant identified the broadcaster as "[the plaintiff's]

daughter" in large letters, underlined the words "[s]he shoots &

edits[,]" and drew a red arrow from the word "shoots" to the

daughter's forehead. The defendant did not dispute any of the

evidence presented and asserted that "he has a First Amendment

right to speak."

Based on our review of the entirety of the record, see

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

conclude that each of the postings described above could

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constitute true threats that enabled the judge to find at least

three distinct acts of willful and malicious conduct directed at

the plaintiff and intended to cause, and did in fact cause, fear

and intimidation. G. L. c. 258B, § 1. "[T]aking into account

the context" of the contentious child custody litigation,

O'Brien, 461 Mass. at 425, a common theme in each of the

defendant's remarks that we have identified is that the

defendant "envisaged violent harm befalling" the plaintiff or

her children if she continued her representation of the ex-

girlfriend. Counterman v. Colorado, 600 U.S. 66, 70 (2023).

The threats, aimed at the plaintiff, were willful and malicious

where they served the dual purpose of exacting "revenge" on the

plaintiff for her legal work as well as expressing "hostility"

to engender fear and discourage the continuing representation of

the ex-girlfriend in the Probate and Family Court. See G. L.

c. 258E, § 1. Given the emotional backdrop of the ongoing child

custody litigation and the escalating nature of the remarks that

triggered the plaintiff to seek court protection, the judge

could have concluded, based on a preponderance of the evidence,

that the defendant's postings constituted true threats that

caused the plaintiff to fear harm "now or in the future" and

evinced an intent by the defendant "to cause such fear."

O'Brien, supra. See Counterman, supra at 73 (defendant must

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have some subjective "understanding of his statements'

threatening character"). In the absence of an abuse of

discretion or an error of law, "we will not substitute our

judgment" for that of the judge who weighed the evidence at the

hearing. C.O. v. M.M., 442 Mass. 648, 655 (2004), quoting

Commonwealth v. Boucher, 438 Mass. 274, 276 (2002).

We disagree with several contentions raised by the

defendant on appeal. The absence of findings of fact by the

judge does not constitute "reversible error." See Yasmin Y.,

101 Mass. App. Ct. at 256 (specific findings not required where

reviewing court may discern reasonable basis for order). While

the defendant now offers more innocuous or prosaic

interpretations for some of his remarks, "use of ambiguous

language does not preclude a statement from being a threat"

(citation omitted). O'Brien, 461 Mass. at 424. Indeed, threats

may be "veiled or explicit" (citation omitted). Id. Veiled

threats can be particularly useful to a perpetrator because the

victim understands the message while leaving room for a fig leaf

of deniability. Also, the plaintiff was not required to prove

"explicitly threatening language" that identified the precise

intended physical harm (citation omitted). Id. See

Commonwealth v. Chou, 433 Mass. 229, 230, 236-237 (2001) (true

threat where defendant produced missing person flyer bearing

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former girlfriend's photograph); J.C. v. J.H. 92 Mass. App. Ct.

224, 228 (2017) (true threat where ex-boyfriend sent text

message to ex-girlfriend warning "this would 'end badly'").

2. Duration of order. Following the first two-party

hearing, "[a]ny relief granted by the court shall not extend for

a period exceeding 1 year." G. L. c. 258E, § 3 (d). At the

conclusion of the two-party hearing here, however, the judge

erred by issuing a permanent order. Therefore, the matter must

be remanded to enable the judge to consider whether there exists

a need to extend the order.

Conclusion. For the reasons set forth above, we vacate

the August 15, 2023 harassment prevention order to the extent

that it was entered as a permanent order. We otherwise affirm

the order and remand for a new hearing and determination of

whether grounds exist to extend the August 15 order. The order

shall remain in effect pending that determination.

So ordered.

By the Court (Rubin, Shin &
Hodgens, JJ.1),

Clerk

Entered: June 11, 2025.

1 The panelists are listed in order of seniority.

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