From Casetext: Smarter Legal Research

Lanigan v. Mirsky

Appeals Court of Massachusetts.
Oct 29, 2013
995 N.E.2d 1151 (Mass. App. Ct. 2013)

Opinion

No. 12–P–1858.

2013-10-29

Amanda LANIGAN v. Lawrence MIRSKY.


By the Court (COHEN, MEADE & SULLIVAN, JJ.).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On July 6, 2011, a judge of the District Court granted the plaintiff's request to extend permanently a harassment prevention order (HPO) obtained against the defendant, Lawrence Mirsky. See G.L. c. 258E, § 3. Before us is the defendant's appeal. The sole issue for decision is whether, in determining that the order should be extended and made permanent, the judge abused his discretion. See Crenshaw v. Macklin, 430 Mass. 633, 635–636 (2000).

To the extent that the defendant challenges the propriety of earlier orders from which he did not timely appeal, those claims are not properly before us, and we do not consider them. See Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 2 (2006). See also Iamele v. Asselin, 444 Mass. 734, 740 (2005). For that reason, and for the additional reason that the argument was not made in the District Court, we do not consider the defendant's claim that his behavior towards the plaintiff was constitutionally protected speech. We observe, however, that the behavior in question falls well within the statutory definition of harassment as construed by the Supreme Judicial Court to avoid constitutional overbreadth. See O'Brien v. Borowski, 461 Mass. 415, 425–428 (2012).

The criterion for extending a protective restraining order is a showing of continuing need for the order. See Pike v. Maguire, 47 Mass.App.Ct. 929, 929 (1999). In the context of an HPO, the specific question to be determined by the judge is whether the plaintiff has demonstrated reasonable, continuing fear of harassment. If, so, the judge has the authority to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order. G.L. c. 258, § 3, inserted by St.2010, c. 23. Here, there was considerable evidence to support the judge's findings, and, they, in turn, amply support his ultimate conclusion that there was continuing need for the HPO and that the order should be made permanent. The judge properly could consider the totality of the circumstances of the parties' relationship, including the basis for the initial order; the defendant's 2009 admission to sufficient facts to warrant a guilty finding under the criminal harassment statute; evidence of the defendant's conduct after the order was issued, which, whether or not it rose to the level of a violation of the HPO or the terms of the defendant's probation, reasonably could be found to have been intentionally intrusive into the plaintiff's life; and the credibility and demeanor of the parties, both of whom testified at the hearing.

There being no abuse of discretion, the order of July 6, 2011, is affirmed.

So ordered.




Summaries of

Lanigan v. Mirsky

Appeals Court of Massachusetts.
Oct 29, 2013
995 N.E.2d 1151 (Mass. App. Ct. 2013)
Case details for

Lanigan v. Mirsky

Case Details

Full title:Amanda LANIGAN v. Lawrence MIRSKY.

Court:Appeals Court of Massachusetts.

Date published: Oct 29, 2013

Citations

995 N.E.2d 1151 (Mass. App. Ct. 2013)
84 Mass. App. Ct. 1116