Opinion
20-P-1061
06-02-2021
D.H. v. A.C.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff obtained a series of harassment prevention orders against the defendant in District Court. According to the plaintiff, the defendant is "obsessed" with the plaintiff's girlfriend and after the defendant was released from incarceration, the defendant began to make various overt threats of physical harm against the plaintiff and others. In his appeal, in which he is representing himself, the defendant seeks to challenge at least some of these orders. He argues that the evidence before the judges was insufficient as a matter of law, and that he never received adequate service. We affirm.
The defendant asserts that he used to date the plaintiff's girlfriend. The plaintiff's testimony suggests that this is untrue. Regardless, nothing turns on this fact.
The initial order was issued at an ex parte hearing on July 11, 2019. The next hearing (the so-called "hearing after notice") was scheduled for July 25, 2019. The record includes a return of service dated July 18, 2019, that indicates that the serving officer (apparently a member of the Ware Police Department) was unable to serve the defendant. However, that return of service also indicates that the officer was able to speak with someone by telephone who identified himself as the defendant, and who demonstrated that he was "very know[l]edge[able] about all 4 orders [and was] very argumentative." Nevertheless, the defendant did not attend the July 25, 2019, hearing, at which the judge issued the order for one year.
The reference to "4 orders" appears to stem from the fact that the plaintiff's girlfriend and certain members of his family also had sought orders against the defendant.
The docket reflects that while a further attempt to serve the defendant on August 1, 2019, was unsuccessful, the defendant was served by hand on October 28, 2019. In addition, notice was sent by mail that a telephonic hearing on whether to extend the one-year order would be held on July 24, 2020. The defendant "attended" that scheduled hearing and had the opportunity to contest the plaintiff's allegations. For example, after the plaintiff stated that he had received from the defendant "pictures of dead babies in gutters" along with the threat that this is what is "going to happen to your [three year old] daughter," the defendant disputed that any such messages were from him. Apparently not crediting the defendant's assertions, the judge extended the existing order for another six months. In an order docketed on July 27, 2020, the judge denied a motion that the defendant had filed on July 20, 2020, to vacate the then-existing order. Also on July 27, 2020, the defendant filed an appeal "from the Judgment of a 258[E] Harassment Prevention Order that entered against him this morning."
One judge issued the ex parte order and the six-month extension order; a different judge issued the initial order after notice.
To the extent that the defendant is seeking to appeal the issuance of the six-month extension order issued on July 24, 2020, he has not shown how that order was improper. The defendant's suggestion that the plaintiff had to support his testimony about receiving threatening messages with documentary proof is simply wrong. Both the plaintiff and the defendant testified about their respective experiences with each other, and the judge was free to credit the plaintiff's testimony over that of the defendant. And, while the plaintiff's testimony at the original ex parte hearing may not have been a model of clarity, it, and the affidavit that accompanied the plaintiff's petition, plainly alleged three acts that qualify as "harassment" within the meaning of G. L. c. 258E, § 1. See O'Brien v. Borowski, 461 Mass. 415, 419 (2012). Moreover, the plaintiff testified to his fear about the threats he had been receiving. The evidence was sufficient to support the issuance of the orders.
To the extent that the defendant is seeking to challenge the issuance of the earlier-issued ex parte order and the one-year order, the defendant filed no timely appeal of those orders. To the extent that the defendant is arguing that the judge abused his discretion, or otherwise erred, in denying his July 20, 2020 motion to vacate, the defendant has not demonstrated such error. Indeed, the motion to vacate was not even included in the record appendix.
Nor do we discern merit in the defendant's arguments about inadequate notice or service. The defendant argues that because he was not formally served within ninety days of the filing of the plaintiff's original petition, the case should have been dismissed pursuant to Mass. R. Civ. P. 4 (j), as appearing in 402 Mass. 1401 (1988). There are three problems with this argument. First, the record before us contains no evidence that the defendant properly raised the issue below, and so the issue is likely waived. Cf. Raposo v. Evans, 71 Mass. App. Ct. 379, 385-386 (2008) ; Adoption of Gillian, 63 Mass. App. Ct. 398, 408 (2005). Second, while it appears true that the defendant did not receive in-hand service until October 28, 2019, the record reflects his actual knowledge of the proceedings as of July 18, 2019, which was one week after the petition was filed, and one week before the scheduled July 25, 2019 hearing after notice. Third, as the defendant himself acknowledges, tardiness in effecting formal service will be excused for good cause, and the defendant's brief indicates that the attempt to serve him in the short window before the July 25, 2019 hearing was unsuccessful because he temporarily had relocated to Florida.
The harassment prevention order dated July 24, 2020, is affirmed, as is the July 27, 2020, order denying the motion to vacate the harassment prevention order dated July 25, 2019.
So ordered.
Affirmed