MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On May 17, 2021, the plaintiffs obtained ex parte harassment prevention orders pursuant to G. L. c. 258E against the defendant. Those orders were extended until June 25, 2021, and again until June 24, 2022. After a hearing on June 24, 2022, at which the defendant was not present, the orders were again extended, until June 23, 2025. The defendant did not timely appeal from these extensions. Rather, he docketed his appeals following the May 8, 2023, denial of his motions to terminate the respective orders.
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,
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Accordingly, we review only the judges denial of the defendants motions to terminate the orders.
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We affirm.
Discussion. We review a judges order denying a partys motion to terminate a civil harassment prevention order for an abuse of discretion. See MacDonald v. Caruso, 467 Mass. 382, 391 (2014). To prevail on his motions to terminate the harassment prevention orders, the defendant had the burden of proving, by clear and convincing evidence, “a significant change in circumstances since the order was issued, and [that], under the totality of the circumstances, the plaintiff, without the protection of an order of abuse prevention, would no longer reasonably fear imminent serious physical harm from the defendant.” Id. at 390-391.
The defendant has failed to meet his burden, and, accordingly, we cannot say that the judge abused her discretion by denying the defendants motions to terminate the orders. As to each order, the defendant presented three arguments in support of his nearly identical motion, and we address each in turn. First, he argued that he was incarcerated and will continue to be incarcerated for at least one year. He contended that due to his incarceration the plaintiffs cannot be reasonably in fear of imminent serious physical harm. The defendants incarceration cannot represent a “significant change in circumstances” supporting termination of the orders, however, because, as he concedes, he was incarcerated at the time the orders were put into place. See MacDonald, 467 Mass. at 392.
Second, the defendant argued that he did not have contact with the plaintiffs since before he was arrested. However, “[c]ompliance by the defendant with the order is ․ not sufficient alone to constitute a significant change in circumstances, because a judge who issues a permanent order is entitled to expect that the defendant will comply with the order.” MacDonald, 467 Mass. at 388-389. This argument, therefore, cannot be said to support the defendants motions.
Third, the defendant argued that the property in which he formerly resided, which abutted the plaintiffs’ property, had been sold following the deaths of his parents.
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He contended, therefore, that he was unlikely to return to the area or harass the plaintiffs in the future. These events do represent significant changes in circumstances that could support termination of the orders. However, on recognizing that a significant change in circumstances had occurred, the judge was then required to consider whether “under the totality of the circumstances, the plaintiff[s], without the protection of an order of abuse prevention, would no longer reasonably fear imminent serious physical harm from the defendant.” MacDonald, 467 Mass. at 391. Several factors bore against the defendant in this analysis. The judge was not required to accept that the defendant was “unlikely” to return to harass the plaintiffs, as the sale of the property in which he lived cannot be said to preclude his return to the area for the purpose of harassing the plaintiffs. Id. at 392. Moreover, the plaintiffs’ concerns about such a return were supported by the evidence. As the judge noted at the hearing, the defendant had a pending civil case in the Superior Court alleging that he violated a different harassment prevention order. Further, the defendant had a pending criminal matter involving eight counts of “criminal harassment and assault” in which the plaintiffs were alleged victims. Finally, the defendant had previously been convicted of violating an abuse prevention order and assault and battery. Given this record, we cannot say that, in considering the totality of the circumstances, the judge abused her discretion in denying the motions to terminate. See id. at 391.
Order denying motions to terminate affirmed.
FOOTNOTES
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. At times, the defendants motions have been referred to as motions to vacate the harassment prevention orders. See MacDonald v. Caruso, 467 Mass. 382, 384 n.4 (2014) (discussing difference between motion to vacate and motion to terminate). See also J.S.H. v. J.S., 91 Mass. App. Ct. 107, 108 n.2 (2017) (“In the context of c. 209A and c. 258E orders, trial courts have used ‘vacated’ and ‘terminated’ interchangeably”). The motions themselves were presented as motions to terminate, and the judge referred to them as such at the start of the hearing; we review accordingly.
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. This denial followed a hearing at which the defendant was represented by counsel.
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. Although the defendant also argues on appeal that (1) his absence at the June 24, 2022 extension hearing was improper and (2) the plaintiffs did not show an ongoing need for protection prior to the extensions of the orders on that date, the window to appeal from the extension orders has long since closed. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). See also MacDonald, 467 Mass. at 388 (“A defendants motion to terminate an order is not a motion to reconsider the entry of a final order, and does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal”). As a result, those arguments are waived, and we decline to consider them.
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. The defendant did not provide any evidence to the judge that the property had been sold, but instead asserted that “[he] was given information that it was sold for $1.8 million.” Indeed, he conceded at the hearing that “[a real estate website] doesnt show that its been sold.”