This is an appeal from an abuse prevention order issued on an ex parte basis, and extended after notice and a hearing by a judge of the Worcester Division of the Probate and Family Court Department. The defendant contends that the Worcester Probate and Family Court lacked jurisdiction to enter the orders, and that the plaintiff failed to establish that she was in reasonable fear of imminent serious physical harm. We affirm.
1. Background. This case has a complex procedural history which we set forth in some detail to provide context for the issues raised on appeal.
On December 9, 2011, the parties agreed to a stipulation in the divorce case which included an order restricting all communication except e-mail related to visitation of their teenage son. The probate judge entered the stipulation as a temporary order. However, J.B. continued to text and call M.B.
On May 21, 2012, the probate judge heard evidence on M.B.’s complaint for contempt, and began to hear evidence on the application for an abuse prevention order. At the conclusion of the court day, and after ascertaining that the no contact order had not been violated between May 10 and May 21, the probate judge continued the evidentiary hearing on the abuse prevention order. She stated that the order would not be issued at that time, and that a further hearing would be scheduled.
Between May 30 and June 20, 2012, M.B. received more than forty text messages. Several came directly from J.B.’s telephone number, while others came from unknown telephone numbers. J.B.’s bank statement showed that J.B. had purchased a “Spoof’ card with his credit card in November of 2011. M.B. testified that the Spoof card made the text messages appear to come from another telephone, and that based on their content, she believed they came from J.B. The content of the texts permitted the inference that they came from J.B., and also indicated that he was following and watching her.
M.B. then filed a new application for an abuse prevention order in the Falmouth District Court on June 13, 2012. An ex parte order issued. Later that day, M.B. brought her car to be inspected, and a global positioning system (GPS) tracking device was found on the underside of her car. M.B. promptly reported this to the police, who initiated an investigation. Meanwhile, the ex parte restraining order expired on June 22, 2012. A judge of the Falmouth District Court held a hearing on that date at which M.B. appeared pro se. J.B. appeared through counsel, who filed a motion to dismiss on the grounds of res judicata, stating that the judge of the Worcester Probate and Family Court had denied a request for a restraining order on May 21, 2012, that judgment had entered, and that the affidavit in support of the June 13
At the hearing on June 22, 2012, in Falmouth, J.B.’s counsel further represented to the court that there had been a full evidentiary hearing before the Worcester Probate and Family Court judge and that the current application was an example of forum shopping. He did not inform the judge, either orally or in writing, of the existence of the no contact order. In fact, the evidentiary hearing in Worcester had been continued, the no contact order was extant, and the application for an abuse prevention order remained pending.
M.B. drove to Worcester that afternoon where she again sought a c. 209A order. A temporary abuse prevention order was allowed
On July 6, 2012, an evidentiary hearing was held in Worcester on the extension of the ex parte order at which J.B. appeared through counsel.
2. Discussion, a. Venue. While the propriety of the ruling of the probate judge, not the District Court judge, is before us, we take this opportunity to clarify the application of the choice of venue provisions of G. L. c. 209A, § 2, with respect to both the Probate and Family and District Court departments of the trial court.
General Laws c. 209A, § 2, provides a choice of venue to the plaintiff, who may bring an application in the court of the county of her current residence or, if he or she has left a previous residence or household to avoid abuse, in the court having venue over the previous residence or household.
M.B. applied for a restraining order in the Worcester Probate and Family Court, where she had previously resided. For reasons not apparent in the record, the case was continued for over three
J.B. contends that G. L. c. 209A, § 2, barred the probate judge
J.B. contends that the abuse prevention order is therefore “void” and likens territorial jurisdiction or venue under c. 209A, § 2, to subject matter jurisdiction. The obvious strategic advantage of this argument is that subject matter jurisdiction may be raised at any time and may not be waived. See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender Registry Bd.,
Any jurisdictional limitations imposed by G. L. c. 209A, § 2, are those of territorial jurisdiction only. In this context, territorial jurisdiction is a matter of venue. See Paige v. Sinclair,
Venue may be waived if not timely raised. Hazard v. Wason,
The defendant waived his objection to venue in the Worcester Probate and Family Court by his conduct. Cf. American Inti. Ins. Co. v. Seuffer GmbH & Co.,
Finally, even if venue had been raised, the evidence before the judge was sufficient to permit the inference that M.B. had left the parties’ home in Worcester County and moved to Barnstable County to avoid abuse. There was evidence in the record before the probate judge that before M.B.’s move to Barnstable County, J.B. had anger management issues, possessed an FID card, had been violent, and had “been physical” prior to their separation. The judge did not err in hearing the application.
This argument conflates the first prong of the statutory definition of abuse, actual or threatened abuse, with the second, reasonable fear of imminent serious bodily harm. See G. L. c. 209A, § 1(a), (b). The purpose of a c. 209A order is to protect a plaintiff from the likelihood of abuse. Iamele v. Asselin, supra at 739. A plaintiff need not wait until an assault occurs to seek protection, although “[i]f the plaintiff were suffering from attempted or actual physical abuse, see G. L. c. 209A, § 1(a), . . . there is no question that an extension should be granted.” Id. at 740 n.3.
As noted above, M.B. provided affidavits stating that J.B. had “anger management issues,” and that there had been “a past history of violence.” She also testified that he had been “physical” with her prior to their separation. In light of “the totality of the circumstances,” id. at 740, that is, a past history of anger and violence, coupled with the conduct that followed the filing of the divorce petition, and the ongoing escalation of contact in violation of the no contact orders, the evidence was plainly sufficient to support the issuance of the abuse prevention order. See Vittone v. Clairmont,
Judgment affirmed.
Notes
The record includes affidavits, testimony, and documents offered by M.B. in support of her June 22, 2012, application for an ex parte abuse prevention order
M.B. described these communications as angry, accusatory, and degrading. A police report stated that J.B., posing as “Charles,” contacted the superintendent of schools and the chair of the school committee (of the municipality where M.B. was employed) and made accusations of wrongdoing. The school department issued a no trespass order against J.B. on December 20, 2011.
For reasons unclear on the record, the hearing was rescheduled to August 30, 2012. The first request for an abuse prevention order in Worcester was not treated as an emergency motion, and there was no objection to the continuance on the record.
For example, the text received on May 30, 2012, said, “Oh, you’re eating pizza and having a beer while I have to pay for a lawyer.” This text was received while M.B. was eating pizza. On June 8, 2012, M.B. received a text calling her a “groupie” while listening to a band. On June 10, 2012 she received a text about the sunset while watching the sun set. While attending her son’s graduation with a female friend on June 3, 2012, M.B.’s friend received a text that said “Is there any peroxide left in this state? You’re hanging out with an adulterer. Great legacy for the two of you.”
J.B. contends that the evidence regarding the Spoof card, the messages that appeared on the friend’s telephone, and the texts and telephone calls from unknown sources should not have been admitted because the evidence was speculative and inadmissible under the rules of evidence. In G. L. c. 209A proceedings, strict compliance with certain common-law rules of evidence, such as those asserted here, is not required, “provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado,
At a subsequent hearing in Worcester on July 6, 2012, the probate judge stated that she had not dismissed the previous application for an abuse prevention order, and that the matter had been held for further evidentiary hearing on August 30, 2012. There was no action entered on the docket. No judgment was entered on the docket.
M.B., appearing pro se, told the judge that the order had not entered in Worcester on May 21, 2012, because there had been no violations for a ten-day period, but that since that time J.B. repeatedly had sent her text messages, and that she had discovered a GPS device placed on her car. M.B. also attempted to tell the judge about the evidentiary hearing in Worcester, but the Falmouth hearing was abruptly terminated.
J.B. called M.B. “Chubby.”
J.B. was incarcerated for an alleged violation of the temporary restraining order at the time of the hearing.
General Laws c. 209A, § 2 provides:
“Proceedings under this chapter shall be filed, heard and determined in the superior court department or the Boston municipal court department or respective divisions of the probate and family or district court departments having venue over the plaintiff’s residence. If the plaintiff has left a residence or household to avoid abuse, such plaintiff shall have the option of commencing an action in the court having venue over such prior residence or household, or in the court having venue over the present residence or household.” (Emphasis added.)
Because the June 13, 2012, application in Falmouth was based on new conduct, it may properly be considered a new application. For this reason, we do not address the questions raised when a plaintiff files the same application in two courts.
Among the many reasons the Guidelines prohibit transfers is that a transfer may “discourage the plaintiff from seeking relief to which he or she is entitled under the law, and may expose the person to additional danger. This is especially so where the other court is at some distance and may be inaccessible to the plaintiff.” Guideline 2:07. Guideline 2:07 also cautions against the issuance of conflicting orders. In this respect, J.B.’s counsel’s mischaracterization of the actions of the probate judge and the selective characterization of the plaintiff’s application is of particular concern. However, as Guideline 2:07 makes clear, the potential for conflicting orders is not a basis for transferring the matter, or for vacating an extant order without evidentiary hearing or an opportunity to be heard. See Singh v. Capuano,
Notwithstanding the broad language of Guideline 3:03, Guideline 1:09 provides a cohesive framework for dealing with applications to a court that lacks venue. Guideline 1:09 incorporates a standing order of the Chief Administrative Justice pursuant to her statutory powers to transfer cases between judicial departments. See G. L. c. 21 IB, § 9 (xix). If a plaintiff makes application to a court lacking venue, and the judge determines that safety would be compromised by a transfer to the court having venue, “the judge may act for the appropriate court and conduct a hearing on the plaintiff’s request.” Ibid. The “primary issue for the court... is to ensure the safety of the plaintiff.” Ibid. The Guidelines offer two options where venue is improper to transfer the case, after determining the safety of the plaintiff will not suffer and he or she has transportation to the receiving court, or hear it. An order may not be denied or vacated over objection without an evidentiary hearing or an opportunity to be heard. To do so subverts the purposes of the statute, that is, to promote the safety of those who seek abuse prevention orders. Singh v. Capuano, supra at 332, citing S.T. v. E.M., supra at 429-430.
We recognize that at one point in time the territorial jurisdiction of the Probate and Family Court was considered truly jurisdictional. See Holt v. Holt,
M.B.’s June 22, 2012, application for a temporary order was docketed as a new application, but this fact is not dispositive of the waiver analysis, which looks to the conduct of the defendant. Here, the defendant’s arguments in Falmouth precipitated the multiple filings. He participated in the prior proceedings in Worcester and attempted to leverage the Worcester proceedings for his benefit.
M.B. argues that J.B.’s conduct at the hearings also precludes him from challenging venue on the grounds of judicial estoppel. See Niles-Robinson v. Brigham & Women’s Hosp., Inc.,
Neither party has argued, and we do not address, whether the order would have been warranted under § (a), based on a prior history of abuse. Compare Callahan v. Callahan,