Heard: October 5, 2018.
for protection from abuse filed in the Concord Division of
the District Court Department on September 6, 2017.
case was heard by Lynn C. Brendemuehl, J.
D. Hurvitz for the defendant.
Present: Massing, Ditkoff, & Englander, JJ.
rule, a defendant who is the subject of an abuse prevention
order issued ex parte at the commencement of an action
brought under G. L. c. 209A may challenge the order at the
ensuing hearing after notice -- not by an appeal to an
appellate court. In this appeal, we consider whether proof of
a "substantive dating or engagement relationship,"
G. L. c. 209A, § 1, at the ex parte hearing is a
prerequisite for subject matter jurisdiction, warranting
appellate review notwithstanding the extension of the ex
parte order at the hearing after notice. We conclude that the
existence of a substantive dating relationship is not
jurisdictional; therefore, we dismiss the defendant's
appeal from the ex parte order as moot and affirm the order
plaintiff, V.M., applied for an abuse prevention order
against the defendant, R.B. On the Trial Court
Department's "Complaint for Protection from Abuse
(G. L. c. 209A)" form, she checked the box indicating
that she and the defendant "are or were in a dating or
engagement relationship." In her affidavit in support of
her complaint, the plaintiff alleged that the defendant
threatened her through text messages, phone calls, and in
person over the course of Labor Day weekend in 2017. The
affidavit did not describe the plaintiff's relationship
with the defendant beyond stating that the defendant had
called her "a whore" and told her that "now he
would have to make sure he got tested."
ex parte hearing in the District Court on September 6, 2017,
the judge questioned the plaintiff about the nature of her
relationship with the defendant. The plaintiff testified that
she and the defendant "were dating." Although they
"never made it like official boyfriend/girlfriend,"
their relationship was exclusive in that she "wasn't
having a relationship with anyone else" and he told her
that "he was doing the same." At the conclusion of
the hearing the judge entered an order prohibiting the
defendant from abusing or contacting the plaintiff and
requiring him to stay away from her, her residence, and her
days later, on September 15, 2017, both parties appeared for
a hearing before the same judge, the defendant being
represented by counsel. The record before us is silent
regarding the evidence presented at the hearing. The
defendant provided us with only the transcript of the ex
parte hearing; he intentionally did not order a transcript of
the hearing after notice. The record indicates that the defendant
filed a motion to vacate the restraining order and expunge
the record at the hearing after notice, arguing, as he does
in this appeal, that the judge lacked jurisdiction to extend
the order because the evidence at the ex parte hearing failed
to establish a substantive dating relationship. After the
hearing, the judge extended the order for six months.
Although the docket sheet does not reflect any action on the
motion to vacate, the extension of the order effectively
days after the entry of the extended order, the defendant
filed his notice of appeal from "the abuse-prevention
order issued in this matter under purported authority of G.
L. c. 209A." The plaintiff did not seek to extend the
order further, and it expired on March 16,