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v.M. v. R.B.

Appeals Court of Massachusetts, Middlesex

November 28, 2018

V.M.
v.
R.B.

          Heard: October 5, 2018.

         Complaint for protection from abuse filed in the Concord Division of the District Court Department on September 6, 2017.

         The case was heard by Lynn C. Brendemuehl, J.

          Karen D. Hurvitz for the defendant.

          V.M., pro se.

          Present: Massing, Ditkoff, & Englander, JJ.

          MASSING, J.

         As a 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 after notice.

         Background.

         The 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."

         At the 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 workplace.[1]

         Nine 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.[2] 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 denied it.

         Twenty-five 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, 2018.[3]

         D ...


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