E.K. v. M.G., 21-P-1022

CourtAppeals Court of Massachusetts
PartiesE.K. v. M.G.
Docket Number21-P-1022
Decision Date02 September 2022

E.K.
v.
M.G.

No. 21-P-1022

Appeals Court of Massachusetts

September 2, 2022


Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order dated August 12, 2020, that permanently enjoined him, pursuant to G. L. c. 258E, from abusing, harassing, or contacting the plaintiff, and ordered him to stay away from her residence. He raises two issues on appeal. First, he contends that there was insufficient evidence to support entry of the order. Second, he argues that his due process rights were violated because he did not receive notice of the hearing leading to the permanent order. Because the defendant has not provided a sufficient record to show that he is entitled to relief with respect to either of his two arguments, we affirm. However, our decision does not foreclose the defendant from seeking relief in the trial court, pursuant to G. L. c. 258E, § 3 (e), based on the alleged lack of notice.

1

Background.

The plaintiff obtained an ex parte G. L. c. 258E harassment prevention order against the defendant on May 22, 2019. Although the defendant received notice that there would be a hearing on May 29, 2022 to determine whether to extend the ex parte order, the defendant did not appear. The plaintiff did, though, appear at that hearing, and the order was extended to May 29, 2020. The defendant did not appeal.

As a result of the COVID-19 pandemic, the May 29, 2020 hearing was rescheduled twice. A video conference virtual hearing[1] ultimately took place on August 12, 2020. Again, the plaintiff appeared; the defendant did not. At the conclusion of the hearing, the judge entered a permanent G. L. c. 258E order against the defendant. It is from this order that the defendant appeals.[2]

Discussion.

The defendant argues that the evidence was insufficient to support the issuance of the permanent order, and that the permanent order was invalid because he did not receive notice of the August 12, 2020 hearing. We discuss each of these arguments in turn.

2

Sufficiency of the evidence.

"We review a c. 258E order to determine whether a fact finder could conclude 'by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed [three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.'" R.S. v. A.P.B., 95 Mass.App.Ct. 372, 374 (2019), quoting Gassman v. Reason, 90 Mass.App.Ct. 1, 7 (2016). The hearing judge's factual findings will not be disturbed on appeal unless they are clearly erroneous. DeMayo v. Quinn, 87 Mass.App.Ct. 115, 117 (2015) .

Here, although the defendant has included in his record appendix the plaintiff's complaint seeking a harassment prevention order, her affidavit supporting that complaint, and transcripts of the May 22, 2019 and May 29, 2019 hearings, he has not included a transcript of the August 12, 2020 hearing at which the permanent order issued. Without that transcript and any exhibits introduced at the hearing, the defendant's argument that the evidence was insufficient to support the permanent order is doomed from the start. See Mass. R. A. P. 18 (b) (4), as appearing in 481 Mass. 1637 (2019); Connolly v. Connolly, 400 Mass. 1002, 1003 (1987) ("In the absence of a transcript, as here, we assume that [the judge's]...

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