NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

22-P-967

22-P-968 Appeals Court

DANNY D. vs. ELI E. (and a companion case1,2).

Nos. 22-P-967 & 22-P-968. June 14, 2023.

Civil Harassment. Harassment Prevention. Protective Order.

The defendant challenges two orders of the Boston Municipal 

Court issued in separate cases on behalf of different plaintiffs

(a husband and wife). The orders extended for approximately six 

months harassment prevention orders previously issued pursuant 

to G. L. c. 258E. We agree with the defendant that the 

extension orders were not supported by adequate evidence and 

vacate them.

A harassment prevention order under G. L. c. 258E, like an 

abuse prevention order issued under G. L. c. 209A, "expires [on 

the date stated in the order] unless extended after a judicial 

determination, essentially, a new finding, that the plaintiff 

continues to require protection." Iamele v. Asselin, 444 Mass. 

734, 739 (2005), quoting Jones v. Gallagher, 54 Mass. App. Ct. 

883, 889 (2002).3 See G. L. c. 258E, § 3. While proceedings 

regarding harassment prevention orders are meant to be as 

1 Zoey Z. vs. Eli E.

2 The parties' names are pseudonyms.

3 "To determine the norms and procedures applicable to 

harassment prevention orders issued pursuant to G. L. c. 258E, 

the Supreme Judicial Court has looked to those applicable to 

abuse prevention orders issued pursuant to G. L. c. 209A." 

F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015).
2

"expeditious and informal as reasonably possible," (citation 

omitted), A.P. v. M.T., 92 Mass. App. Ct. 156, 161 (1995), a 

plaintiff must nonetheless establish, by a preponderance of the 

evidence, that extension of the order is reasonably necessary to 

protect the plaintiff from further harassment. See G. L. 

c. 258E, § 3; Iamele, supra at 736. 

In the present case, the orders were issued initially ex 

parte, and were extended for one year following a hearing after 

notice. The plaintiffs applied for a further extension of the 

orders, and a hearing was held on the extension request, with 

all parties present. At the hearing on the extension request, 

the plaintiffs were not required to relitigate the harassment on 

which the prior orders were based, but they were required to 

prove an ongoing need from protection from the defendant's 

harassment. See Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 

252, 259 (2022). This, they did not do. As the defendant 

correctly observes, the plaintiffs presented no new evidence at 

the extension hearing, not even, for example, evidence that the 

defendant still lived near them, or that they had seen him at 

his condominium during the previous year, or that an extension 

was necessary to protect them from the impact of the prior

abuse.4 Instead, counsel for the plaintiffs presented the judge 

with affidavits that had been submitted with the plaintiffs'

initial applications for the harassment prevention orders, as 

well as a certified copy of the transcript from the August 23, 

2021, hearing on those applications. Though the judge heard 

argument from the plaintiffs' counsel regarding the plaintiffs'

belief that extension of the orders was reasonably necessary

(and also heard testimony and argument from the defendant), 

arguments of counsel are not evidence. Nothing in the evidence 

supporting the issuance of the original orders was of a nature 

that would suggest the need for a protective order of perpetual 

4 We note that nothing in the defendant's testimony is 

adequate standing alone to support a finding of a continuing 

need for the orders. The defendant testified that he had not 

lived in the condominium since the harassment order issued, 

going to his unit only to check the mail. 
3

or indefinite duration.5 Following the extension hearing, the 

judge did not make any written or oral findings of fact.6

The absence of any evidence in the record or of any

findings of fact by the hearing judge as to the plaintiffs'

continued need for the orders compels us to vacate the orders 

extending them. See O'Brien v. Borowsky, 461 Mass. 415, 430 

(2012). A hearing judge's discretion in issuing extensions of 

harassment prevention orders is not so broad as to eliminate the 

evidentiary burden on a plaintiff to establish a continued need 

for an order.7 We remand to the Boston Municipal Court for entry 

of orders vacating and setting aside the extended orders issued 

on August 23, 2022, and for further actions required by G. L. 

c. 258E, § 9, if any. See F.K. v. S.C., 481 Mass. 325, 335 

(2019). 

So ordered. 

5 At the time the harassment order issued, the parties were 

neighbors in a condominium building. In issuing the harassment 

order, the judge found that the defendant had spit onto the 

plaintiffs' car at various times (including during the COVID-19 

pandemic), and also onto a package delivered to their unit; 

that he pointed his index finger at one of the plaintiffs and 

said words to the effect of "[d]on't ever, ever, ever talk to me 

ever again" on one occasion; and on another occasion screamed 

"you know what you're fucking doing, you better stop, you know 

what you're fucking doing." Our holding in the present case 

does not preclude the possibility that acts supporting the 

issuance of a harassment order in a different case could, in and 

of themselves, be of such a serious or threatening nature as to 

establish, without more, a continuing need for protection for a 

duration extending beyond the term of the initial order. 

6 The judge's general comment that he was extending the 

orders "based on the affidavits and . . . the credible 

testimony" does not permit us to infer a finding that extension 

of the orders was reasonably necessary to protect the 

plaintiffs. See O'Brien, 461 Mass. at 430. 

7 The present appeal raises no question of the propriety of 

the original harassment prevention orders (which were affirmed 

on appeal to this court). We note as well that, though the 

plaintiffs bore the burden to establish a continuing need for 

the orders, they faced no burden at the extension hearing to reestablish the basis for the issuance of the original orders. 

See Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 259 (2022). 
4

Eli E., pro se.

Heather M. Gamache (Meghan Hall, also present) for the 

plaintiffs.