M.M. v. Doucette, AC 16-P-1474

Background

On Feb 15, 2011, a Peabody District Court judge issued an ex parte G. L. c. 209A temporary restraining order; a hearing after notice was scheduled for Feb 28, 2011.
The defendant (Doucette) was personally served with the ex parte order on Feb 16, 2011; he did not appear at the Feb 28 hearing and the judge extended the order for one year.
On Feb 27, 2012, the court entered a permanent restraining order at a hearing at which the plaintiff appeared but Doucette did not; the docket noted "defendant incarcerated." Service before that hearing had been by leaving the extended order at the defendant’s "last and usual abode."
Doucette contends he did not receive notice of the Feb 27, 2012 hearing; he was served in-hand with the permanent order about ten days after it issued, while incarcerated.
Doucette filed a motion to vacate and a petition for a writ of habeas corpus ad testificandum asserting lack of notice and a desire to be heard; the trial judge denied the motion and petition without comment. The Appeals Court remanded for a new hearing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant was afforded due process/notice before entry of permanent c.209A order	Plaintiff argued proceedings complied with statute and Guidelines	Doucette argued he lacked meaningful notice of the Feb 27, 2012 hearing and thus was deprived of opportunity to be heard	Remanded: trial judge must provide reasonable notice and opportunity to be heard; current permanent order vacated for further proceedings unless court properly secures defendant's presence or demonstrates actual notice
Whether service at defendant’s "last and usual abode" suffices before making order permanent when defendant incarcerated	Plaintiff relied on docket/service entries and that ex parte order warned of possible extension	Doucette argued alternative service did not establish actual notice while he was incarcerated	Court held service at last and usual abode is weaker than in-hand service; without evidence of actual notice, court should not make order permanent without securing presence or clearer notice
Whether court erred by denying writ of habeas corpus ad testificandum and motion to vacate without comment	Plaintiff urged no relief necessary because procedures were followed	Doucette sought writ to secure attendance and vacatur due to lack of notice	Court held denial was error because judge had notice defendant wanted to be heard and plausibly lacked prior notice; writ should have issued to secure presence
Whether failure to conduct in-hand service bars enforcement or conviction for violating order	Plaintiff argued defendant had constructive notice from prior proceedings	Doucette argued lack of actual notice prevents conviction/enforcement	Court reiterated that absence of in-hand service and lack of evidence of actual notice prevents binding the defendant for enforcement/conviction; better practice is in-hand service or other reliable notice

Key Cases Cited

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (due process requires notice reasonably calculated to apprise interested parties)
Singh v. Capuano, 468 Mass. 328 (2014) (c.209A contemplates hearing after notice within ten days absent agreement or emergency)
C.O. v. M.M., 442 Mass. 648 (c.209A requires opportunity to be heard, including right to testify and present evidence)
Frizado v. Frizado, 420 Mass. 592 (right to cross-examine and present evidence in c.209A proceedings)
Commonwealth v. Delaney, 425 Mass. 587 (service and actual notice principles relevant to enforcement of c.209A orders)
Commonwealth v. Henderson, 434 Mass. 155 (incarcerated defendant must show effort or desire to attend; court may secure presence)
Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531 (background context regarding defendant's incarceration and related proceedings)
Commonwealth v. Silva, 431 Mass. 401 (actual knowledge required for criminal conviction under outstanding restraining order)
Commonwealth v. Kulesa, 455 Mass. 447 (same principle regarding notice and enforcement)
Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827 (notice and enforcement issues under c.209A)
Iamele v. Asselin, 444 Mass. 734 (standard for extension hearing: plaintiff must show by preponderance that extension is necessary)