WILHELMINA W. vs. URI U.

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 exclusively on the defendant's alleged commission of the indecent assault and

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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). [Note 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. [Note 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 to lapse, and then seeks to obtain a subsequent order after notice based on exactly the same conduct. [Note 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. [Note 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

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away from and have no contact with the child.

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. [Note 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. [Note 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.

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. [Note 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

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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" 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. [Note 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. [Note 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 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

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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), 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. [Note 10] See Commonwealth v. Rossetti, 489 Mass. 589, 593 (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

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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 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. [Note 11]

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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 committed [Note 12] an indecent assault and battery on the plaintiff's child, he is mistaken. [Note 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. [Note 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

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plaintiff's misuse or abuse of G. L. c. 258E. [Note 15]

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 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.