Heard: May 8, 2017.
for protection from abuse filed in the Peabody Division of
the District Court Department on February 15, 2011.
case was heard by Matthew J. Nestor, J.
Charles Doucette, pro se.
Present: Meade, Hanlon, & Sacks, JJ.
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.
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] . A hearing after notice was
scheduled for February 28, 2011.
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. 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.
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." 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
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
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.