T.G. v. A.C.

• Citation: 100 Mass.App.Ct. 1125,182 N.E.3d 344 (Table)
• Decision Date: 17 February 2022
• Docket Number: 21-P-138
• Parties: T.G. v. A.C.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1125

182 N.E.3d 344 (Table)

T.G.

v.A.C.

21-P-138

Appeals Court of Massachusetts.

Entered: February 17, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In these consolidated appeals, the defendant appeals from an order entered on July 27, 2020, extending a civil harassment prevention order issued pursuant to G. L. c. 258E, and an order entered on November 5, 2020, denying his motion to vacate the original ex parte order entered on July 3, 2019, on the ground that it was not properly served.² We affirm.

Background. On July 3, 2019, the plaintiff obtained an ex parte harassment prevention order against the defendant. After a hearing on July 17, 2019, at which the defendant was not present, the order was modified and extended to July 31, 2019. According to a docket entry dated July 18, 2019, a police officer served the defendant "in hand" and "[v]ia [p]hone."³ On July 31, 2019, a judge extended the harassment prevention order for one year to July 27, 2020. The defendant was not present for that hearing. On October 28, 2019, the defendant was served in hand.

A telephonic hearing was held on July 27, 2020, at which both parties were present. A judge of the District Court denied the defendant's "motion to vacate/expunge c. 258[E] harassment order" and extended the order for an additional year to July 26, 2021. The defendant filed a timely notice of appeal.⁴

Thereafter, on October 26, 2020, while his appeal from the extension order was pending, the defendant filed a "motion to dismiss" in the District Court due to the lack of proper service of the original order. The judge treated the motion as a motion to vacate and, following a hearing held on November 5, 2020, at which both parties were present, the motion was denied.⁵ The defendant appealed from that order and his motion to consolidate the appeals was allowed.

Discussion. Although the defendant appeals from the extension order entered on July 27, 2020, and from the denial of his motion to dismiss, the thrust of his argument concerns the original order entered on July 3, 2019. He claims that there was insufficient evidence to justify that order and it was not properly served. We disagree.

In the plaintiff's affidavit submitted in support of an order of protection, she averred that the defendant threatened to cause physical harm to her boyfriend and child, sending "constant" harassing messages to her family and friends. At the hearing held on July 3, 2019, the judge counted all the messages and texts as one act of harassment. To the extent that the defendant argues that he has never been allowed to see the text messages "entered into evidence on July 3, 2019," the transcript shows that no exhibits were submitted into evidence at the hearing. In addition, the judge heard testimony from the plaintiff that established the defendant threatened to send people to the plaintiff's workplace to beat her up on July 2, 2019, attempted to run the plaintiff off the highway with his car in July 2018 shortly after their mutual court appearance in Palmer and assaulted the plaintiff in June 2016 with a hypodermic needle.⁶ This testimony, which was supported by the plaintiff's affidavit, amply supports the judge's conclusion that the defendant committed three or more separate acts of harassment. See F.K. v. S.C., 481 Mass. 325, 331-333 (2019) ; C.E.R. v. P.C., 91 Mass. App. Ct. 124, 126 (2017). Accordingly, the issuance of the c. 258E order was justified.⁷

In reaching our conclusion, we note that the judge was entitled to credit the plaintiff's affidavit and her testimony about the threatening texts, and, contrary to the defendant's assertion, further corroboration was not required. See J.C. v. J.H., 92 Mass. App. Ct. 224, 228 n.7 (2017). We also note that the defendant is incorrect in his characterization of the second act of harassment found by the judge as a "denial" of the plaintiff's complaint filed in the July 2018 proceeding. Rather, the second act of harassment is based on the incident that happened on the highway after those proceedings.

Lastly, even if, as the defendant asserts, the plaintiff violated G. L. c. 258E, § 3 (g ), by not disclosing the prior or pending actions involving the parties in her complaint for protection from harassment, the act did not amount to "witness intimidation" of the defendant. Moreover, the plaintiff's failure to check the box on the complaint form about "prior and pending actions" falls far short of the clear and convincing evidence of fraud on the court required for expungement of a c. 258E order. See J.S.H. v. J.S., 91 Mass. App. Ct. 107, 112 (2017).

The defendant next argues that he is entitled to dismissal or vacatur of the c. 258E orders because "[t]here has never been legitimate service of process." We deem this issue waived for two reasons. First, the defendant's cursory argument, unaccompanied by reasoned argument or citation to supporting legal authority, does not rise to the level of adequate appellate argument. See Adams v. Adams, 459 Mass. 361, 392 (2011). Second, the defendant failed to assert this ground as an affirmative defense in the trial court.⁸ See Chute v. Walker, 281 F.3d 314, 319-320 (1st Cir. 2002) (defendant waived insufficiency of process objection by filing answer to complaint and motion to dismiss without raising this specific objection). See also Salas v. Porto, 72 Mass. App. Ct. 1102 (2008) (finding Federal precedent on waiver in this context persuasive).

None of the defendant's remaining arguments, all of which we have considered, warrant discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (195...