Protections of the Anti-SLAPP Statute Apply to Recipients of Restraining Orders

Is the recipient of a restraining order protected by the anti-SLAPP statute when she contacts police to report her concern that the restraining order has been violated? What if it turns out that there was no violation, and charges were filed erroneously and later dismissed? In a recent case, the Massachusetts Appeals Court decided this issue.

In 1997, a few years after obtaining a divorce, the ex-wife sought and received a restraining order against her ex-husband. The ex-husband was prohibited from contacting the ex-wife in any manner, with an exception carved out for notifications of court proceedings by mail, by sheriff, or through other means. The ex-husband unsuccessfully sought to have that order modified or vacated on several occasions. In 2014, the ex-wife reported to the New Bedford police that the ex-husband contacted her by mail in violation of the restraining order. Upon investigating, New Bedford police arrested the ex-husband, and he was charged with criminally violating the order.

The charges were later dismissed, as the court found no evidence that the restraining order was violated. The ex-husband defended by noting that his mailing to the ex-wife (the mailing which was the basis of the purported violation) actually contained court filings, which were covered under the exception to the restraining order. The ex-wife noted that the court filings bore no official court stamp; by contrast, all other filings previously filed by the ex-husband had born a court stamp. The ex-wife called the court to confirm that the filings were official and was told by the clerk that no such filings existed. The investigating officer also called and was told the same thing.

As it turned out, the ex-husband did file those papers with the court, and the filings were misplaced by court personnel and not docketed until after these events transpired. As a result, the criminal charges were filed when no violation could be proven.

After the dismissal of the criminal charges, the ex-husband in turn filed a civil action against the ex-wife, claiming that she caused him to be arrested without probable cause. The ex-wife filed a motion to dismiss under the Massachusetts anti-SLAPP statute, claiming that the lawsuit was based entirely on her protected petitioning activity.

The Massachusetts anti-SLAPP statute provides a special motion to dismiss for parties who face a lawsuit based on their protected petitioning activities. “When a person reports suspected criminal activity to the police, she is engaging in constitutionally-based petitioning activity for purposes of [the anti-SLAPP statute,]” the Court explained. In this case, the ex-wife’s activities in reporting the suspected criminal activity to police was protected.

“[W]e conclude that [the ex-wife’s] conduct in reporting her concern to the police was petitioning activity under the anti-SLAPP statute and, in the circumstances of this case, the retaliatory civil suit filed against her was based entirely on her petitioning activity and therefore should have been dismissed.”

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.

Divorce on Grounds of Cruel and Abusive Treatment

Which of the following scenarios may give rise to a divorce based on the fault ground of cruel and abusive treatment:

1. A husband publicly makes false accusations that his wife is having multiple affairs with her medical patients; he once threatened to slash her.

2. A wife calls her husband vile names and berates him in front of their children; she has also blackened his eye one two occasions.

3. A husband forces himself upon his wife and has sex with her, despite knowing that he has a sexually transmitted disease.

4. A wife forces her wife to sleep alone in the attic, orders her to leave the marital home, and slaps her multiple times on multiple occasions.

The answer? All of the above!

Cruel and abusive treatment is a fault ground for divorce in Massachusetts, along with many other jurisdictions. It has been defined by the Massachusetts courts to mean “that it must ‘appear to be, at least, such cruelty as shall cause injury to life, limb or health, or create a danger of such injury, or a reasonable apprehension of such danger upon the parties continuing to live together. This is broad enough to include mere words, if they create a reasonable apprehension of personal violence, or tend to would the feelings to such a degree as to affect the health of the party, or create a reasonable apprehension that it may be affected.’”

As noted above, cruel and abusive treatment includes words as well as physical actions, provided that those words either create an apprehension or fear of violence, or hurt a spouse to such extent that the spouse’s health is reasonably affected. As the Supreme Judicial Court explained in one case: “acts or words are sufficient to constitute cruel and abusive treatment within the purview of R. L. c. 152, § 1, now G. L. c. 208 § 1, where the acts are committed or the words are spoken with a malevolent motive, or intention to injure, or to cause suffering to the libelant, if it is found that injury or the danger of injury to the libelant’s life, limb or health, or a reasonable apprehension thereof, is thereby caused.” In that case, the wife claimed to suffer serious mental suffering (so much so that her physical health was impacted) after she learned of her husband’s infatuation with another woman and his intentions to continue his relations with the other woman.

The defendant’s “malevolent intent” or the intent to hurt, is required to prove cruel and abusive treatment. From case law, it seems debatable whether one instance of cruelty is enough to prove cruel and abusive treatment, or whether ongoing cruelty is necessary: while some cases have granted a divorce based on this ground involving only one major incident, others have declined to do so.

If you have any questions about issues of divorce, custody, or support, you may schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete our contact form online, and we will get back to you at our earliest opportunity.
 
 
 
 
[1] Brown v. Brown, 323 Mass. 332 (1948), quoting Bailey v. Bailey, 97 Mass. 373 (1867).

[2] Curtiss v. Curtiss, 243 Mass. 51 (1922).

[3] See, for example, Collis v. Collis, 355 Mass. 25 (1968); Mooney v. Mooney, 317 Mass. 433 (1944); and Sylvester v. Sylvester, 330 Mass. 397 (1953).