Opinion
No. 14–P–845.
09-27-2016
Manuel HENAO v. Barbara ABERNATHY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Barbara Abernathy, appeals from the extension of a harassment prevention order issued pursuant to G.L. c. 258E (order) in the Lawrence District Court at the request of the plaintiff, Manuel Henao. She argues that the order was improperly issued and wrongly extended. For the reasons that follow, we conclude that the record supports the judge's decision to extend the order and we affirm.
On April 12, 2013, Henao sought an order against Abernathy. She was ordered not to abuse him, to stay fifty yards away from him, and to stay away from his condominium unit. The defendant was permitted to enter the condominium building using only the rear door, and was permitted to park only in her assigned spot at the back of the building. The hearing after notice was held on April 23, 2013, and the order was extended until October 22, 2013; the original order was slightly modified. The defendant did not appeal. On October 22, a further extension hearing was continued by agreement of the parties until November 21, 2013, as the defendant was in custody at the time on charges of violating the order. The extension hearing was finally held on November 21, 2013.
Background. The parties lived in the same condominium complex in Methuen; the plaintiff, Manuel Henao, and his family lived in the condominium unit directly below Abernathy's unit. Starting shortly after Abernathy moved into her unit in June, 2012, she began “making quite disturbing, loud and frightening noise disturbances on a daily basis” including “repeated banging, stomping, door slamming, slamming kitchen cabinet's [sic ] doors, and slamming/throwing objects to the floor. These disturbances happened at different times of the day and night mostly between 10:00 P.M. and 8:00 A.M. ”
We take these facts from the plaintiff's affidavit, filed on April 12, 2013, in support of his initial application for the order, and supplemented by his attorney's representations at the November 21, 2013, hearing, where the order at issue here was extended. The judge who extended the order did not hear any testimony at that time. The record appendix contains a transcript, dated November 21, 2013, with the title “Restraining Order Hearing.” The judge first addressed a pending Commonwealth motion to join approximately seven criminal matters that were pending against the defendant; those matters apparently involved the harassment prevention order with the plaintiff and his family as alleged victims of, inter alia, “[numerous] violation[s] of harassment prevention order[s], [and] witness intimidation.” At that time, it appears that the defendant was in custody, her bail having been revoked on one or more of the criminal cases. The judge allowed the motion for joinder; other motions on the criminal charges were continued for another day. On page 14 of the transcript, the parties began to address the harassment prevention order. The judge told the parties that she had reviewed the relevant affidavits and motions “[s]o we don't need to go through all the facts of everything that's happened already.” She said that “at some point I may want to hear from the parties directly” but, first, asked the lawyers “whether or not there's anything new that [she] should consider in terms of extending [the order].” Thereafter, the prosecutor described the pending criminal cases, along with their procedural posture. Beginning on page 28 of the transcript, the plaintiff's lawyer began to summarize the allegations. His representations occupy three pages of transcript, but there are no dates and few specifics, including particularly, times for when the acts of harassment were said to have occurred. The defendant's lawyer then spoke for several pages of transcript, essentially arguing that the described behavior did not amount to acts of harassment. He did not deny that any particular act had occurred.
Throughout the lengthy and procedurally confusing hearing, the judge was extremely patient, as well as scrupulous about focusing the lawyers' attention on the issue at hand and permitting each of them to be heard. Nonetheless, reviewing the matter on appeal is complicated by the fact that there was no testimony; this is a handicap when the defendant argues that there was insufficient evidence to issue the order. On the other hand, it does not appear that there is any dispute about the underlying facts. As noted, the defendant did not contest the allegations during the hearing and she does not do so on appeal. Her argument is only that her behavior did not suffice to support the issuance of a harassment prevention order under G.L. c. 258E.
The stomping (or “marching”) occurred especially at night directly above Henao's master bedroom. According to Henao, when Abernathy arrived home later than he did, “she proceed[ed] immediately to a room she [thought he was] in to make noise disturbances.” At times, Abernathy's banging and stomping caused plaster debris and insulation to dislodge from Henao's ceiling and fall to the floor. As a result, Henao was forced to pay for the repairs. According to Henao, Abernathy admitted to him and to members of the condominium association that she intentionally bangs on the floor.
Henao's affidavit recited, “The stomping noises are described as heavy and continuous and repetitive. Heavy stomping sounds like a non-stop ‘marching’ sound across the unit. It can be heard the plaster snapping. Ms. Abernathy makes this heavy stomp for several minutes; sometimes hours. Continuous stomping is when she is stomping her feet continuously in the same location especially above the master bedroom while we are sleeping.... We have witnessed times when Ms. Abernathy opens her deck door and then proceeds to a designated room (which had the lights on) to make noise disturbances .” Also, in his affidavit, Henao informed the court that Abernathy “ha[d] been arraigned by the Lawrence District Court for 5 counts of violating the city noise ordinance” and there was a pending hearing for a charge of disturbing the peace.
On August 8, 2014, after the April, 2013, order had been in effect for more than a year, Abernathy was convicted of disturbing the peace and criminal harassment for actions alleged to have occurred on April 21, 2014. At a later restitution hearing, she was ordered to pay restitution to Henao in the amount of $10,207.85 for damage to his condominium, along with medical bills, legal fees, and hotel expenses for his wife.
Henao has called the local police “45 times” to report Abernathy's “abusive noise disturbances”; police officers also observed the disturbances while in the Henaos' unit. Henao also alleged that, on March 18, 2013, Abernathy followed him from the highway, then drove past him three separate times within a short period of time while he was parked in his assigned spot in the condominium parking lot. That same day, Abernathy waited for Henao's wife to arrive home, then stared at her for approximately five minutes from a close proximity after his wife had parked in her assigned spot. Henao's affidavit claimed that, on that occasion, “several neighbors witnessed what was ... happening and one of them came down and escorted [his] wife home.”
At one point, after a plain clothes police officer stationed in Henao's condominium observed some of Abernathy's behavior, Abernathy was charged with making a false police report and disturbing the peace.
At the November 21, 2013, hearing, the judge was told that, despite numerous criminal charges for violating the existing order, Abernathy continued to harass Henao each time she was released from custody; the only time he was free from harassment was when Abernathy was being held.
Henao's representations about the harassment were corroborated by other witnesses, including police officers, neighbors, and Henao's wife. Henao's counsel informed the judge that, due to the constant noise disturbances, Henao's wife was forced to move from their home into a hotel in order to study for her dental examination, and Henao experienced marital difficulties because of the stress the situation was inflicting on him and his family. In addition, because Henao's wife was no longer living at home, he was responsible for the full-time care of their young son, interrupting Henao's ability to work consistently.
At the conclusion of the hearing, the judge extended the order for one year, until November 18, 2014; paragraph two of the existing order was modified, removing the fifty yard stay away restriction, and adding to the conditions of the order that the defendant must have “no avoidable contact” with the plaintiff. The defendant timely appealed.
Discussion. The defendant challenges the order, arguing that there was insufficient evidence to justify the issuance of the original ex parte order, as well as the extensions. She agrees that “[t]he evidence before the judge showed ... that Ms. Abernathy made a lot of noise that bothered Mr. Henao,” but contends that “[w]hile this level of noise [was] bothersome and obnoxious, [the behavior] definitely does not rise to the level of willful and malicious intent required under the statute.” In her view, there was no showing that she intentionally committed three or more wilful and malicious acts aimed specifically at Henao that would qualify as harassment under the statute.
At the outset, we note that the defendant's challenge to the original order was waived, as that order was extended at the hearing after notice on April 23, 2013, and Abernathy did not appeal the extension. See Iamele v. Asselin, 444 Mass. 734, 742 (2005) (no appeal was taken from the original order and, thus, “[i]ts underlying basis was not to be reviewed, nor its validity second guessed at the extension hearing”). As a result, the only issue before the judge at the November, 2013, hearing was whether the order should be extended again. Ibid.
“A party seeking a harassment prevention order under G.L. c. 258E, § 3, must demonstrate ‘harassment,’ which the statute defines in relevant part to mean ‘[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 that does in fact cause fear, intimidation, abuse or damage to property.’ G.L. c. 258E, § 1.... And fear is narrowly defined as fear of physical harm or fear of physical damage to property.” Van Liew v.. Stansfield, 474 Mass. 31, 36–38 (2016). See O'Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting from G.L. c. 258E, § 1 (“[T]he acts of harassment must be wilful and ‘[m]alicious,’ the latter defined as ‘characterized by cruelty, hostility or revenge,’ and they must be committed with ‘the intent to cause fear, intimidation, abuse or damage to property.’ ... Second, the multiple acts of civil harassment must ‘in fact cause fear, intimidation, abuse or damage to property’ ”).
In Seney v. Morhy, 467 Mass. 58 (2014), the court emphasized that “an essential element of civil harassment is intent.... The conduct must have been intended to cause, and must actually cause, abuse (defined as ‘attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm’), intimidation, fear of personal injury, or damage to property. [O'Brien, supra ] at 427, quoting G.L. c. 258E, § 1 (individual must ‘willfully commit[ ] three or more acts aimed at a specific person, each with the intent to cause fear, intimidation, abuse, or damage to property’). The target of the harassment must have experienced an ‘entire course of harassment,’ the whole of which caused fear or intimidation .... O'Brien, [supra ] at 426 n. 8, 427.” Seney, supra at 63. Gassman v. Reason, 90 Mass.App.Ct. 1, 7–8 (2016).
In a harassment order hearing pursuant to G.L. c. 258E, “[t]he plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G.L. c. 258E, § 1, as being ‘characterized by cruelty, hostility or revenge’ “ (emphasis added). A.T. v. C.R., 88 Mass.App.Ct. 532, 535 (2015), quoting from O'Brien, supra at 427. “In addition, ... the consistent element required is an intent to cause fear.” Gassman, supra at 8.
In deciding whether the plaintiff met his burden of proof, the judge was to consider all of the evidence, including Abernathy's multiple violations of the existing order, pending criminal charges stemming from the violations, and the likelihood of future encounters between the parties in the course of their daily activities. See Iamele, 444 Mass. at 740 (G.L. c. 209A abuse prevention order). “No one factor is likely to be determinative.” Ibid. Each harassment order case presents to the fact finder a different constellation of facts, and an evaluation of the evidence will draw heavily on credibility determinations made by the judge who hears them. While there certainly will be cases where excessive noise will not justify the issuance of a harassment order, considering all of the facts of this particular case, we cannot quarrel with the judge's determination that this defendant wilfully and maliciously undertook a course of behavior intending to cause and, in fact causing harassment, intimidation, and fear of physical harm in this plaintiff. In addition, we note that the defendant also caused property damage to the plaintiff's condominium unit and, as a result, Henao would have been warranted in fearing that more damage would result if the stomping did not stop.
Based on the record before us, we are satisfied that the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant's conduct qualified as harassment as defined by the statute and justified issuing the order. See G.L. c. 258E, § 1.