STATE OF MAINE DISTRICT COURT

CUMBERLAND, SS. PORTLAND

Docket No. PA-IO-114
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Lori Handrahan, individually )
and on behalf of Mila Malenko, )
Plaintiffs )
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v. ) ORDER
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Michael Waxman, )
Defendant )

This matter is before the Court, pursuant to 5 M.R.S.A. 4651, et.seq., on Plaintiffs
complaint for protection from harassment. Final hearing was held on March 4 and 5, 20 I 0, at
which time both parties appeared representing themselves. Based on the evidence presented, the
Court finds, concludes, and orders as follows.

PROCEDURAL BACKGROUND.

On December 8, 2009, Plaintiff Lori Handrahan filed a complaint seeking a temporary

and final order for protection from harassment on. behalf of herself and her minor child Mila
Malenko against Defendant Michael Waxman. Mr. Waxman is legal counsel for Igor Malenko,
Mila Malenko's father and Plaintiffs former husband. Waxman represented Igor Malenko in the
divorce and protection from abuse proceedings involving Handrahan and Malenko and continues
to represent Malenko in post-divorce proceedings.
The instant matter was originally filed in the Ellsworth District Court, which granted
Plaintiffs request for a temporary order on December 9, 2009. Defendant filed a motion for
change of venue as well as a motion to dissolve the temporary order. After hearing and by order
dated January 28, 2010, Defendant's motion for change of venue was granted, and the matter
was transferred to the Portland District Court for further proceedings. Hearing was held on
February 12,2010, on Defendant's motion to dissolve, and by orders dated February 12,2010,
and February 16,2010, the Portland District Court granted Defendant's motion and dissolved the
temporary order, first as it related to Mila Malenko and subsequently as it related to Lori
Handrahan. The matter was then scheduled for final hearing.
Pending final hearing, Defendant filed a motion in limine seeking exclusion of all
evidence based on pleadings and communications between Defendant and Plaintiff or her legal
counsel on the grounds of absolute privilege. Two days before final hearing on the harassment
complaint, Defendant filed a special motion to dismiss pursuant to Maine's Anti-SLAPP statute,
14 M.R.S. 566. The Court reserved ruling on both motions.
In her written objection to Defendant's Motion in limine, Plaintiff moved for permission
to allow the telephonic testimony of potential witnesses. Plaintiff did not advance the motion
either before or during trial, nor did she at any time after filing her motion propose to present a
witness telephonically. The motion is therefore deemed withdrawn.

DEFENDANT'S SPECIAL MOTION TO DISMISS

Defendant claims he is entitled to dismissal of Plaintiffs complaint pursuant to Maine's

Anti-SLAPP statute, 14 M.R.S. 556, which provides in pertinent part:

When a moving party asserts that the civil claims ... against the moving
party are based on the moving party's exercise of the moving party's right of
petition under the Constitution of the United States or the Constitution of Maine,
the moving party may bring a special motion to dismiss ....
As used in this section, "a party's exercise of its right of petition" means
any written or oral statement made before or submitted to a legislative, executive
or judicial body, or any other governmental proceeding; any written or oral
statement made in connection with an issue under consideration or review by a
legislative, executive or judicial body, or any other governmental proceeding; any
statement reasonably likely to encourage consideration or review of an issue by a
legislative, executive or judicial body, or any other governmental proceeding; any
statement reasonably likely to enlist public participation in an effort to effect such
consideration; or any other statement falling within constitutional protection of
the right to petition government.

Maine's Anti-SLAPP statute "was designed to combat litigation without merit filed to dissuade
or punish the exercise of First Amendment rights of defendants." Maietta Constr.o Inc. v.
Wainwright, 2004 ME 53 ~6, 847 A2d 1169, 1173 (quoting Morse Bros. v. Webster, 2001 ME 70
~ 10, 772 A2d 842, 846.
Defendant Waxman contends that all of the claims made by Plaintiff Handrahan in this
action are based on Waxman's exercise of his right of petition to a judicial body on behalf of his
client Igor Malenko in "the ongoing custody battle between Igor Malenko and Lori Handrahan."
Waxman further argues that Handrahan's filing of the instant complaint for protection from
harassment was intended solely for the purpose of having Waxman removed as Igor Malenko's
attorney in the ongoing family matter proceedings, something she previously attempted, but
failed, to accomplish by other means. I Waxman points out that he represents Igor Malenko, pro
bono, and to preclude Waxman from participating in proceedings involving Handrahan would
likely leave Malenko without legal counsel in pending post-divorce and protection from abuse
proceedings.
It is not clear that Maine's anti-SLAPP statute was intended to apply to circumstances
arising in family matter litigation. Assuming that it does apply, however, Defendant's special
motion to dismiss is denied. Under Maine's Anti-SLAPP statute, the Court must first determine
whether Handrahan's claims against Waxman are based on his exercise of the right to petition
and, if so, whether I-Iandrahan has met her burden of showing that Waxman's exercise of his
right of petition was devoid of any reasonable factual support or any arguable basis in law and

I In post divorce proceedings, Handrahan filed a motion for removal of Waxman as counsel for Malenko, which
motion was denied after hearing.

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that his acts caused her actual injury. 14 M.R.S 556. The statute specifically requires the Court
to make this determination on the basis of the pleadings and supporting and opposing affida vits.
Defendant's special motion to dismiss was filed two days before final hearing on the
instant complaint for protection from harassment, was filed without supporting affidavits, and
without opportunity for Plaintiff to submit affidavits in opposition thereto. Defendant's fai lure to
provide an evidentiary basis on which to rule on the motion, the interests of judicial economy,
and the need for timely hearing in protection matters warrant that Defendant's special motion to
dismiss be denied and that the Court proceed to a consideration of the merits of Plaintiff's
complaint for protection.2

EVIDENTIARY RULINGS

Defendant's Motion in limine. In her complaint, Handrahan alleges, inter alia, that
Waxman harassed her through pleadings and written communications to her attorneys or herself,
pro se. Defendant filed a motion in limine to exclude admission or examination of all attorney
communications and pleadings on the grounds of absolute privilege. Because the Court reserved
ruling on the motion, Defendant maintained a standing objection to all evidence offered by
Plaintiff relating to pleadings, motions and e-mail communications between Defendant and
Plaintiffs counsel.
In support of his motion, Defendant cites Dineen v. Daughn, 381 A2d 663 (Me.1978),
involving a suit for libel against an attorney pertaining to statements made by the attorney in a
motion for attachment. In that case, the Law Court for the first time recognized in the State of
Maine the proposition that allegations made in pleadings are absolutely privileged and that the
public policy underlying this privilege applies to attorneys in judicial proceedings to allow them
to litigate strenuously the interests of their clients. The Law Court recognized, however, that" ...
the privilege need only be broad enough to encompass statements relevant to those interests. To
extend the protection beyond this point would be to abuse the public policy which acts as the
underpinnings of the privilege." Dineen, at 665. The Law Court went on to examine the context
of the statements at issue in the case to determine if there was a sufficient nexus between them
and the judicial proceeding to render them relevant to the proceeding and therefore appropriately
within the privilege.
To apply the Law Court's analysis in Dineen, it is necessary for the Court to review the
pleadings and communications at issue and allow testimony about them to make a determination
as to whether there exists a sufficient nexus between them and the then-pending judicial
proceedings to render the statements relevant and therefore appropriately within the privilege.
Because of the last minute filing of this motion in limini and the need for a timely final hearing,
the Court determines it appropriate for purposes of judicial economy to address Defendant's
motion in limine in conjunction with the hearing on the merits. For reasons stated hereinafter, the
Court determines that the motion is moot.

Admission of Exhibits. During the course of the final hearing, the Court reserved ruling
on certain exhibits offered by Plaintiff and to which Defendant objected. Upon further

2 Maine's Anti-SLAPP statute was designed to afford parties early relief from merit less claims brought only for the
purpose of inflicting delay and high costs as punishment for efforts to petition the government on matters of public
interest. See Morse Brothers, Inc., et.al. v. Faylene Webster et aI., 200 I ME 70. Defendant's motion, filed only
days before final hearing, does not appear to present the temporal circumstances for wh ich the statute was designed.

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 consideration, Defendant's objections to Plaintiffs exhibits numbered 8, 9, and 16 are sustained
on the grounds of hearsay, and said exhibits are not admitted. To the extent not otherwise
specified, all other exhibits offered by Plaintiff are deemed admitted.

Testimony of Leslie Devoe. In the presentation of her direct case, Plaintiff called as a
witness Leslie Devoe. Ms. Devoe is a licensed clinical social worker whose practice focuses on
issues related to childhood trauma and domestic violence. Plaintiff called Ms. Devoe to testify
about her observations of Mr. Waxman and the effects of his conduct on Ms. Handrahan.
Defendant objected to Ms. Devoe's testimony on the grounds of relevance. The Court took
Devoe's testimony de bene subject to Defendant's objection.
To succeed on her complaint for harassment, Ms. I-Iandrahan must prove, among other
things, that the Defendant's actions in fact cause her fear and intimidation. 5 M.R.S.A
4651 (2)(A). Because Ms. Devoe's testimony has bearing on the issue of the impact of Mr.
Waxman's conduct on Ms. Handrahan, Defendant's objection is overruled, and the Court allows
the testimony of Leslie Devoe.

Plaintiff s Post-Hearing Motion for Judicial Notice. On March 16, 2010, after the record
was closed and the case taken under advisement, Plaintiff filed a motion requesting that the
Court take judicial notice of certain police reports. Not only is Plaintiffs motion untimely, but it
requests that the Court take notice of material not appropriately within the scope of information
of which the Court can take such notice. M.R.Evid. 201. Plaintiffs motion is denied.

MERITS OF COMPLAINT AS TO PLAINTIFF LORI HANDRAHAN

Plaintiff and her former husband, Igor Malenko, have been engaged in a high conflict
divorce. See Malenko v. Handrahan, 2009 ME 96, ~ 28. Following commencement of their
divorce action, Handrahan and Malenko were involved in several protection from abuse
proceedings, including one filed by Ms. I-Iandrahan seeking protection for herself against
Malenko alleging his domestic violence against her,) and another filed by Ms. Handrahan on
behalf of their minor child Mila Malenko on the grounds that Mr. Malenko sexually abused then
two-year-old Mila.4 None of these protection actions resulted in a finding ofabuse.5 Throughout
the divorce, post-divorce and protection from abuse proceedings, Attorney Waxman has
represented Mr. Malenko. During the post-judgment litigation in the divorce, Ms. Handrahan
filed a motion seeking removal of Attorney Waxman from the case, which motion was denied
after hearing.
In the instant proceeding for protection, Ms. Handrahan contends that Attorney Waxman
has engaged in a pattern of harassing conduct directed towards her by way of voluminous,
disparaging, and threatening correspondence to her legal counsel and to her when she was self-
represented; by way of intimidating communications to individuals who have served as her

] Por-PA-08-605.
4 Por-PA-09-1142.
5 Handrahan's complaint for protection in Por-PA-605 resulted in a final order entered by agreement of the parties
without a finding of abuse. That order was subsequently dismissed by the Court in the divorce judgment.
Handrahan's complaint for protection in Por-PA-1142 was denied after hearing. That matter is currently on appeal.
Malenko filed two protection from abuse complaints against Handrahan, both of which were withdrawn or
dismissed voluntarily by him prior to hearing.

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support system, such as medical and daycare providers; and by his abuse and perpetuation of the
litigation process to intimidate and torment her. In addition, she asserts that in an effort to
frighten and intimidate her, Mr. Waxman has inappropriately developed a personal relationship
with her minor child Mila Malenko.
To succeed on her complaint for protection, Plaintiff must establish by a preponderance
of the evidence that Defendant has engaged in harassment, which is defined under 5 M.R.S.
4651 (2) as:

A. Three or more acts of intimidation, confrontation, physical force or

the threat of physical force directed against any person, family or business that
are made with the intention of causing fear, intimidation or damage to
property and that do in fact cause fear, intimidation or damage to property;

B. Three or more acts that are made with the intent to deter the free exercise or
enjoyment of any rights or privileges secured by the Constitution of Maine or
the United States Constitution; or

C. A single act or course of conduct constituting a violation of section 4681; title

17, section 2931; or Title 17-A, sections 20 1,202, 203, 204, 207, 208, 209,
210, 21O-A, 211,253, 30 I, 302, 303, 506-A, 511, 556, 802, 805 or 806.

This definition does not include any act protected by law.

Plaintiff contends that Defendant's conduct and actions fall within the description of
three or more acts of intimidation and/or confrontation, three or more acts designed to deter her
enjoyment of her rights and privileges under the Maine and United States constitutions, and
constitute the single act of stalking as defined in 17-A 210-A, thereby entitling her and her
daughter to a protective order against Defendant.
The evidence establishes that during the divorce and protection from abuse proceedings,
Mr. Waxman sent numerous e-mails to counsel representing Lori Handrahan, and to Lori
I-Iandrahan directly for the periods when she was self-represented. Kenneth Altshuler, Esq., one
of Ms. I-Iandrahan's attorneys in the divorce proceedings, testified that as an attorney with many
years of experience in family matters, it was his observation that the number of e-mails he
received from Attorney Waxman was extraordinarily high compared to other highly contentious
proceedings in which he has been involved. Defendant does not deny that he sent a high volume
of e-mails to Plaintiff s counsel throughout the course of the proceedings. He contends, however,
that they were necessitated by Plaintiffs actions, including filing claims for protection from
abuse which were never substantiated, and her having engaged the services of several different
attorneys to represent her during the case, thereby requiring him to educate each new attorney
about the history of the case.
A review of the e-mails admitted into the record reveals that the tone of the
correspondence was often angry, sarcastic, and disparaging of the Plaintiff. Many threatened
Handrahan's counsel with Rule II sanctions or suggested that her counsel be prepared for
professional liability claims. Particularly upsetting to Ms. Handrahan were those stating that Mr.
Waxman would expend whatever time and money, including his family's substantial resources,
necessary to pursue Mr. Malenko's parental rights (Plaintiffs exhibit #12); describing Ms.

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 Handrahan as severely mentally ill (Plaintiffs exhibits #10, #13); threatening Ms. Handrahan
would lose custody of her child (Plaintiffs exhibit #13); and indicating that Mr. Waxman has
developed a personal relationship with Mila (Plaintiffs exhibits #7, #10).
While these communications distressed Ms. Handrahan, the Court is not persuaded either
by virtue of their volume and/or content that they constitute harassment as defined by 4651. A
key element that the Plaintiff must prove is not only that the communications in fact caused
Plaintiff fear and intimidation, but also that they were issued to her or her counsel with the intent
to cause fear or intimidation in Ms. Handrahan. Under Maine law, intent does not have to be
stated, but may be inferred from circumstantial evidence revealing that the conscious object of
the Defendant's actions was to harass the Plaintiff, Smith v. Welch, 645 A2d 1130, 1132 (ME
1994), citing State v. Hills, 574 A2d 1357,1359 (Me.1990). Such inferences may be drawn from
circumstances surrounding even those acts protected by law. See Cates v. Donahue, 2007 ME
38, 916 A2d 941; Patane v. Brown, 2002 ME 47 ~ 10, 792 A2d 1086, 1089.
With the exception of statements concerning his own relationship with the minor child
Mila, Waxman's communications directly addressed specific issues arising in the ongoing and
highly contested litigation between Handrahan and Malenko and reiterated Waxman's
commitment to vigorously and aggressively advocate for his client's parental rights in the
pending judicial proceedings. Given the context and content of these communications, the Court
is not persuaded by a preponderance of the evidence that the conscious object of his
communications was to intimidate and frighten Ms. Handrahan, notwithstanding the effect the
communications may have had on her or the fact that the communications were in her eyes
unwelcome. Absent sufficient proof of the requisite intent, Plaintiffs claim that the
correspondence and pleadings constituted a single act of stalking and/or three or more acts of
intimidation and confrontation as defined in subparagraphs A and C of 4651 does not succeed.
Plaintiff claims that Mr. Waxman harassed her by frightening and intimidating her
friends and service providers so that they were reluctant to maintain their connections with her;
in so doing, Waxman rendered her isolated, intimidated and fearful. In support of this claim, Ms.
I-landrahan presented the testimony of Polly Campbell, a registered nurse and victim-witness
advocate for the Office of the Attorney General for the State of Maine. Ms. Campbell testified
that she had been contacted by Handrahan seeking assistance with Handrahan's concern that
Malenko sexually abused Mila. In the course of her involvement with the ensuing investigation
into the allegations, Ms. Campbell was contacted by Mr. Waxman, who was outraged by a
suggestion made by Ms. Campbell, admittedly without any evidence, that Mr. Malenko' s
computer be searched to see if it contained any child pornography. It was Waxman's opinion that
Campbell's suggestion for which there was no factual basis was inappropriate and
unprofessional. He contacted her employer and requested her termination and reported her
conduct to the State Board of Nursing. Ms. Campbell testified that despite her years of
experience as a nurse and advocate for victims of domestic violence, she was scared of Michael
Waxman.
Notwithstanding Ms. Campbell's reaction to Waxman's behavior, the circumstances
giving rise to her encounters with him occurred in the context of litigation and investigations
relating thereto in which Waxman was zealously defending his client against an allegation of
sexual abuse of a child and a suggestion admittedy made without factual basis of possession of
child pornography. Nothing presented by Campbell indicates that Waxman acted outside of his
role as Malenko's lawyer or in any realm other than through business correspondence. The
threats he made to her were that he would seek recourse to challenge her professionalism through

6
 legitimate means. Given these facts and the context in which they arose, the Court does not infer
that it was Waxman's intent to harass and isolate Handrahan through harassment of Campbell,
but rather to defeat what he believed to be false accusations against his client of inappropriate
sexual involvement with children. Ms. Handrahan's contention that Defendant harassed her by
intentionally causing her to be isolated and abandoned by those she considered to be her support
system is not substantiated by this record.6
Ms. Handrahan claims that another means by which Mr. Waxman engaged in harassing
conduct is by undermining settlement efforts between herself and Igor Malenko, thereby
perpetuating the litigation process and the conflict between the parties. It is her position that but
for Mr. Waxman's interference she and Malenko would have resolved all pending issues
rendering ongoing litigation totally unnecessary. Mr. Malenko testified, however, and the Court
so finds, that he was never in agreement with Ms. Handrahan' s proposals as to how to resolve
the disputes between them. According to Malenko, the only resolution that Handrahan ever
found acceptable required his forfeiting significant rights to playa meaningful role in Mila's life,
something he refused to do. Mr. Waxman at all times represented Malenko' s position on matters
arising between himself and Handrahan, and for this, he testified, he was deeply grateful. The
evidence fails to persuade a finding of harassment on this basis.
Ms. Handrahan further requests the Court to issue a protective order against Michael
Waxman because he is using the litigation process itself to frighten and intimidate her and to
perpetuate the abuse she alleges she endured at the hands of Igor Malenko. Even if there had
been a finding of abuse of Handrahan by Malenko,7 procedures for resolving family matters still
rests with the courts. The Court is mindful that the litigation process, because of its adversarial
nature, may be difficult and anxiety-producing. Whether it is the optimal mechanism for
addressing family matters and, if not, whether some other mechnism should be established,
however, is a matter for the Legislature, not this Court, to decide. Application of the protection
procedures afforded under 4651 to bring about the cessation of vigorous, contentious litigation
is not the vehicle to achieve that result.
Finally, Ms. I-Iandrahan contends that Mr. Waxman has harassed her by fostering a
personal relationship between himself and her and Malenko's minor child Mila; that his
development of a bond with Mila constitutes the ultimate parental alienation scheme. In her
opinion, Waxman's having contact with Mila is unnecessary and inappropriate given his role as
attorney for Igor Malenko. She cites Troxel v. Granville, 530 U.S.57, 120 S.Ct. 2054, 147 L.Ed.
2d 49 (2000), in support of her fundamental right as a parent to direct the care and upbringing of
her child and determine with whom her child should have contact.
It is undisputed that Mr. Waxman has occasionally spent time with Mila in a social
context. Over the course of his representation of Igor Malenko, Mr. Waxman and Malenko have
developed a friendship and have engaged in social activities together. During some of these
events, Mila has been present. For example, Malenko was a guest of Mr. Waxman's family for
the Thanksgiving holiday and spent a weekend at a Waxman family vacation home in New

6 Handrahan suggests that Waxman employed harassing tactics with respect to other service providers, such as
Handrahan's daycare provider, by threatening to report the service provider to the state licensing agency. There is
insufficient evidence in the record to support Plaintiffs claim that these events occurred or that, if services to Ms.
Handrahan were in fact terminated, it was Mr. Waxman's conduct that caused the termination.
7 At trial, Handrahan represented to the Court that Malenko was convicted of a domestic violence assault in which
she was the victim. The docket record of that proceeding, PORDC-CR-2007-0276I , however, of which the Court
takes judicial notice, reflects that the matter was filed for one year and dismissed by the State on June 5, 2008. No
conviction ever resulted.

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 Hampshire. Occasionally, Malenko joins Waxman when the latter takes his dog for a walk on the
beach. Mr. Waxman's contact with Mila has always taken place when Mila has been with her
father. There is no credible or reliable evidence that Waxman has ever done or said anything
inappropriate to the child.8
The divorce judgment entered by the Court awards to both Handrahan and Malenko
shared parental rights and responsibilities. Unless and until parental rights are allocated
otherwise, Malenko's decisions as to with whom he and Mila spend time are his to make. That
Malenko's decisions may distress Handrahan does not constitute harassment of Handrahan by
Waxman.

MERITS OF COMPLAINT AS TO PLAINTIFF MILA MILENKO

Ms. Handrahan seeks a protection order on behalf of Mila Malenko against Michael
Waxman alleging that Waxman's contact with the child is unwanted, inappropriate and
emotionally harmful to the child; because Mila is so young, the child cannot voice these concerns
herself, and Handrahan therefore raises them on the child's behalf. As set forth above, the Court
finds nothing in the record to support any finding that Waxman has engaged in inappropriate
conduct or conversations with Mila. According to Handrahan, however, the mere fact of his
having a personal relationship with the child is inappropriate and detrimental to Mila, since Mr.
Waxman represents Malenko, Handrahan's adversary, in the family matter litigation and has
vilified Handrahan in the course of these proceedings.
As set forth above, the contact Waxman has had with Mila has occurred in a social
setting when Mila has been in the presence of her father. Since Mr. Malenko shares parental
rights with Handrahan, his choice of social encounters the child has during his time with her is
his decision to make. The Court makes no finding of harassment as to Mila Malenko.

CONCLUSION

For the foregoing reasons, Plaintiffs complaint for protection from harassment is
DENIED. In light of this determination on the merits of Plaintiffs complaint, ruling on
Defendant's motion in limine is unnecessary.

Dated: April 71 ,2010

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S In argument on Defendant's renewed motion in /imine at the close of Plaintiffs direct case, Handrahan conceded
that she was not alleging that Waxman's treatment of Mila constituted harassment, but rather that the fact of his
relationship with the child was harassment. In response to Waxman's cross-examination of her, she testified that she
had no knowledge of whether Waxman made any disparaging remarks about Handrahan to the child.