Zullo v. Goguen
| Decision Date | 04 November 1996 |
| Citation | 672 N.E.2d 502,423 Mass. 679 |
| Parties | John F. ZULLO v. Christa L. GOGUEN & another. 1 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John F. Zullo, pro se.
Melissa J. Weisgold, Assistant District Attorney (Dana M. Gershengorn, Assistant District Attorney, with her), for Com.
Before ABRAMS, LYNCH, O'CONNOR and FRIED, JJ.
In response to the applications of Christa L. Goguen and Louise C. Goguen, a judge in the Framingham District Court on March 8, 1995, issued ten-day temporary restraining orders against John F. Zullo, pursuant to G.L. c. 209A, § 4 (1994 ed.). A hearing was scheduled for March 17. The Framingham police were unable to locate Zullo. Zullo telephoned the police on March 10 after discovering that the police were looking for him. The police told Zullo that a restraining order had been issued against him and they asked him his home address, which he refused to divulge. On March 17, a judge, aware that service had not been made on Zullo, issued further temporary orders and set another hearing date, March 30, 1995. Zullo was aware that the police were trying to locate him. However, he did not inform the police of his address, and they were unable to make service before March 30. On March 30, the restraining orders were continued until April 28. Finally, on April 10, Zullo was served photocopies of the restraining orders at the Middlesex Superior Court where he was present in connection with an unrelated matter.
General Laws c. 209A, § 7, provides in relevant part that "unless otherwise ordered by the court, [the appropriate law enforcement agency (here, the Framingham police) ] shall serve one copy of each order upon the defendant, together with a copy of the complaint, order and summons." Although on April 10 the police served photocopies of the restraining orders on Zullo, they did not serve on him copies of the complaints or the summonses.
On April 23, Zullo filed in the Framingham District Court a "Notice of Defective Service." On April 28, a District Court judge extended the restraining orders to March 8, 1996, one year from the date of the first order. Zullo then filed in the Supreme Judicial Court for Suffolk County a petition for relief under G.L. c. 211, § 3 (1994 ed.), in the form of an order that would "terminate said restraining orders which were issued improperly and without notice." A single justice of this court denied Zullo's petition. This is an appeal from that order.
Since none of the parties has brought to this court's attention any order extending the aforementioned restraining orders beyond March 8, 1996, judgment shall be entered in the county court dismissing the petition as moot. We take this opportunity, however, to make a point relative to the requirements for proper service under G.L. c. 209A, § 7. We wish also to revise the procedure, previously required by us, by which a party may seek review of a G.L. c. 209A order.
We have quoted above the relevant portion of G.L. c. 209A, § 7, which provides that "unless otherwise ordered by the court," service on the defendant of copies of the complaint, order, and summons are required. The words, "unless otherwise ordered by the court," are significant. When the appropriate law enforcement agency has made a conscientious and reasonable effort to serve the statutorily specified documents on the defendant, but has nevertheless failed, the agency should promptly notify the court so that a judge, if satisfied after a hearing that an appropriate effort has been made, may order that service be made by some other identified means reasonably calculated to reach the defendant. Where such substituted service appears unlikely to notify the defendant, the judge may excuse service.
We turn to our second concern, which relates to the proper procedure for seeking review of a G.L. c. 209A order. Our prior cases have recognized G.L. c. 211, § 3, as the only available route to obtain such review. See Flynn v. Warner, 421 Mass. 1002, 1003, 654 N.E.2d 926 (1995) (); Frizado v. Frizado, 420 Mass. 592, 593, 651 N.E.2d 1206 (1995) (); Callahan v. Boston Municipal Court Dep't, 413 Mass. 1009, 604 N.E.2d 1287 (1992) (). However, following our reasoning in Department of Revenue v. Jarvenpaa, 404 Mass. 177, 534 N.E.2d 286 (1989), we conclude that, henceforth, review of orders pursuant to G.L. c....
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