E.K. v. J.A.F.

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-756

E.K.

vs.

J.A.F.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a harassment prevention order

issued against him under G. L. c. 258E (c. 258E order) after a

two-party hearing in the District Court. Although we do not

condone the defendant's behavior that is in question, we agree

with his argument that the plaintiff did not prove three

qualifying acts of harassment and thus vacate the c. 258E order.

At the initial two-party hearing in a c. 258E proceeding,

the plaintiff has the burden of proving by a preponderance of

the evidence 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 does in fact cause fear,
intimidation, abuse or damage to property." G. L. c. 258E, § 1.

See C.E.R. v. P.C., 91 Mass. App. Ct. 124, 125-126 (2017). In

addition, where, as here, the c. 258E order is predicated on the

defendant's speech, the plaintiff must show that the speech

falls into the category of either "fighting words" or "true

threats." Kareem K. v. Ida I., 100 Mass. App. Ct. 902, 904

(2022). The absence of specific factual findings by the judge

will not preclude us from affirming a c. 258E order so long as

"we are able to discern a reasonable basis for the order in the

judge's rulings." G.B. v. C.A., 94 Mass. App. Ct. 389, 396

(2018).

Here, at the conclusion of the hearing, at which the

plaintiff and the defendant testified, the judge stated that she

was crediting the plaintiff's testimony and issuing the c. 258E

order based on a recent Instagram post by the defendant and "the

kind of pattern of contact throughout the years." We accept the

judge's credibility determination, which is entitled to

deference. See Noelle N. v. Frasier F., 97 Mass. App. Ct. 660,

664 (2020). Even so, however, we are unable to discern from the

record a reasonable basis to support the c. 258E order.

The plaintiff testified at the hearing as follows. In

2015, after dating the defendant for about six months, the

plaintiff ended the relationship because the defendant "became

verbally and emotionally abusive towards [her]." The defendant

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"didn't take the break up well" and continued to contact the

plaintiff using fake phone numbers and fake social media

accounts for approximately one year. In 2020 the defendant

contacted the plaintiff again by using a fake Facebook profile

to send her a message. On April 4, 2025, the plaintiff received

a text message from an unknown number; when she replied asking

who it was, the defendant identified himself, causing the

plaintiff to block the number. The next day, the plaintiff

"received a Facebook friend request from [the defendant] from a

newly created Facebook account," causing the plaintiff to block

the account. Then, on April 16, 2025, the plaintiff received a

"follow up request on Instagram from [the defendant] from a

newly created Instagram account." As his user name, the

defendant used a combination of his and the plaintiff's initials

and birthdays. The "bio" on the account stated, "[J]ust trying

to marry my ex and start having kids ASAP. Ring is in hand. I

just need yours. Our children should not have had to wait this

long to be born." The defendant also posted screenshots of

personal text messages that the plaintiff had sent him in 2015

and pictures from their relationship, "along with intense

emotional captions . . . such as I miss my wife and the mother

of my kids." The parties do not have children together.

We will assume without deciding that the Instagram post

qualified as a true threat and thus an act of harassment within

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the meaning of c. 258E. To be a true threat, a statement must

"communicate a serious expression of an intent to commit an act

of unlawful violence to a particular individual or group of

individuals." Kareem K., 100 Mass. App. Ct. at 904, quoting

Virginia v. Black, 538 U.S. 343, 359 (2003). The plaintiff

testified that she took the defendant's statement, "Our children

should not have had to wait this long to be born," to be "a

threat of rape" because the defendant was "adamant about not

only bringing [the plaintiff] back into his life but having

children with [her] whether [she] want[s] it or not." Arguably,

the defendant's statement could be interpreted as a true threat,

so we will assume that it constituted one act of harassment.

The record does not establish any additional acts of

harassment, however. Although the plaintiff testified that the

phone calls and messages that the defendant sent her in 2015

were unwanted, there is no evidence in the record about the

content of those communications, and so no basis on which the

judge could have found them to be true threats or fighting

words. Likewise, the Facebook message that the defendant sent

in 2020 and the text message and Facebook friend request he sent

in April 2025 do not qualify as acts of harassment. The

plaintiff submitted screenshots of those messages as exhibits at

the hearing, and we see no statement in them that could

reasonably be construed as true threats or fighting words. The

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same is true for the remaining exhibits in the record appendix

and supplemental appendix submitted by the plaintiff, which we

have carefully reviewed.

Accordingly, while we do not question the judge's finding

that the plaintiff was in fear, we conclude that the evidence

was insufficient to establish three acts of harassment under

c. 258E. Deciding the appeal on this basis, we need not address

the defendant's remaining arguments. 1,2

The case is remanded to the District Court for entry of an

order vacating and setting aside the harassment prevention order

and for further actions required by G. L. c. 258E, § 9. See

C.E.R., 91 Mass. App. Ct. at 132 n.17.

So ordered.

By the Court (Henry, Shin &
Toone, JJ. 3),

1 We deny the plaintiff's request to dismiss the appeal
based on the defendant's alleged failure to serve her with
certain documents that he filed through this court's electronic
filing system. The defendant asserts that he did make proper
service, and, even assuming he did not, the plaintiff has not
shown prejudice.

2 Should the defendant commit additional acts of harassment,
nothing in our opinion precludes the plaintiff from availing
herself of the protections of c. 258E or possibly, given the
parties' past dating relationship, the protection of an order
pursuant to G. L. c. 209A. A judge may convert the type of
order requested if doing so is appropriate and notice is
given. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4
(2019) (no error in converting type of order requested where
defendant had notice, did not object to conversion, and suffered
no prejudice).
3 The panelists are listed in order of seniority.

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Clerk

Entered: March 30, 2026.

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