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M.M. v. Doucette

Appeals Court of Massachusetts, Essex

August 4, 2017

M.M.
v.
CHARLES DOUCETTE.

          Heard: May 8, 2017.

         Complaint for protection from abuse filed in the Peabody Division of the District Court Department on February 15, 2011.

         The case was heard by Matthew J. Nestor, J.

          Charles Doucette, pro se.

          Present: Meade, Hanlon, & Sacks, JJ.

          HANLON, J.

         The defendant, an inmate at the Massachusetts Correctional Institution at Concord, appeals, pro se, from an order of the District Court, issuing a permanent abuse prevention order against him, pursuant to G. L. c. 209A (restraining order). He argues that he was denied an opportunity to be heard on the issue of whether the permanent order was wrongfully issued. We agree and remand the matter for a new hearing.

         Background.

         The relevant facts are fairly straightforward. On February 15, 2011, a judge of the Peabody District Court issued a restraining order after an ex parte hearing "at which plaintiff was present and defendant was not present, to expire on [February 28, 2011] .[1] A hearing after notice was scheduled for February 28, 2011.

         The District Court docket sheet indicates that, on February 16, 2011, the day after the ex parte hearing, a court officer of the Salem District Court served the defendant in hand with the ex parte restraining order, which included the scheduled date for the hearing after notice.[2] On February 28, 2011, as scheduled, a hearing after notice was held and the judge extended the restraining order for one year until February 27, 2012. The docket indicates that the plaintiff was present and the defendant was not present. On March 2, 2011, the docket indicates that a copy of the extended order was left at the defendant's "last and usual abode." The docket does not indicate where that abode was located, or whether it was the address that the defendant had been ordered to stay away from.

         At the next scheduled hearing, a year later, on February 27, 2012, the restraining order was made permanent without modification. According to the docket sheet, "the plaintiff was present and the defendant was not present." The defendant's absence from that hearing was explained by a further note: "defendant incarcerated."[3] The defendant represents that he did not receive any notice of that hearing before it was held. A docket entry dated March 9, 2012, indicates that the defendant was served in hand with the permanent restraining order after the hearing, presumably at the place where he was then incarcerated.

         On December 3, 2012, the defendant filed a motion to vacate the permanent restraining order, along with an affidavit and a petition for a writ of habeas corpus ad testificandum. While a significant portion of the motion and the affidavit concerned the merits of the case, the defendant also argued in the motion that the permanent restraining order had been issued without notice to him "which prevented him from being heard."

         The motion and the petition were denied without comment on December 12, 2012, the day they were docketed. A subsequent motion for reconsideration was also denied. The defendant filed a notice of appeal to the Appellate Division of the District Court dated February 7, 2013; it was docketed on February 12, 2013. The docket shows no further activity until 2016, when the defendant began to seek funds to transcribe the recording of the February 27, 2012, hearing that resulted in the permanent restraining order, along with some other documents. That motion was denied, as were two additional motions to vacate the order, along with motions for a writ of habeas corpus and for reconsideration of the motion to vacate the order. On June 27, 2016, the Appellate Division of the District Court reversed a portion of the order denying the motion defendant's for funds to transcribe the hearing, and the record was assembled for this court.

         D ...


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