W.L.D. v. G.L.S. ( 2024 )

NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-642
W.L.D.
vs.
G.L.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A District Court judge issued a permanent abuse prevention
order pursuant to G. L. c. 209A (209A order) against the
defendant on November 4, 2021. In March 2023 the defendant
filed a "motion to recall" the 209A order, which entered on the
docket as a "motion to vacate," along with a motion for a
telephone conference; the judge, treating the defendant's
"motion to recall" as one for reconsideration, denied both
motions. The defendant appeals from those orders.1 We affirm.
1The defendant also filed a letter motion requesting
production of certain documents. Although no order specifically
addressing that motion appears on the docket, as discussed infra
it appears that the documents, to the extent permitted by law,
were provided; the defendant, in his briefing, does not suggest
otherwise or raise any arguments addressing that motion.
Accordingly, and to the extent the defendant purports to appeal
Background. On August 23, 2019, the plaintiff sought the
initial ex parte 209A order against the defendant, based on her
affidavit averring that the defendant had sexually abused her
when she was six to fourteen years old, and that she had learned
that he would soon be released from prison. A judge entered an
ex parte 209A order, and an extension hearing was scheduled for
September 6, 2019. On September 4, 2019, the defendant filed a
"motion for extension of time and motion for return of
property." On September 6, 2019, at a hearing that was not
attended by the defendant, the matter was continued at the
defendant's request; another hearing was scheduled for November
5, 2019, and the 209A order was extended to that date. That
209A order was served personally on the defendant by the
sheriff's office in Leavenworth County, Kansas. The defendant
filed a "motion for documents" on September 11, 2019.
At a hearing on November 5, 2019, which the defendant did
not attend, the 209A order was extended for two years until
November 4, 2021. That 209A order directed that another
extension hearing was scheduled for November 4, 2021, at 10 A.M.
in the main courtroom in Orleans District Court. On November
19, 2019, that 209A order was served personally on the defendant
any issues arising from that motion, we deem any such appeal
waived and decline to address it further.
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by a deputy sheriff in Leavenworth County. The defendant did
not appeal the issuance of the 209A order.
On November 4, 2021, the defendant did not appear at the
extension hearing, and a permanent 209A order was issued against
the defendant on that date. The defendant did not submit an
affidavit or other correspondence demonstrating that he was
incarcerated or otherwise offer a reason for his failure to
appear. Police attempted to serve the permanent 209A order on
the defendant, but at first were unsuccessful because he had
left Federal custody and the facility did not have a current
address for him.
On March 22, 2023, an employee of the sheriff's office in
Sacramento County, California personally served the permanent
209A order on the defendant. On March 23, 2023, the defendant
filed in the Orleans District Court three letters dated March
20, requesting that the court: vacate the 209A order because
its issuance violated his due process rights; provide him with
certain documents related to the 209A order; and schedule a
telephone conference on those issues. A judge denied the motion
for reconsideration on March 28, 2023. In March and April 2023,
the clerk's office sent the defendant by e-mail copies of the
documents he sought.
Discussion. The denial of a motion for reconsideration is
reviewed for an abuse of discretion. See Piedra v. Mercy Hosp.,
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Inc., 39 Mass. App. Ct. 184, 188 (1995). The defendant alleges
that the issuance of the restraining orders violated his due
process rights because he was not present for the hearings. It
is true that a valid 209A order "must provide the defendant with
reasonable notice and an opportunity to be heard." Caplan v.
Donovan, 450 Mass. 463, 470, cert. denied, 553 U.S. 1018 (2008).
However, contrary to the defendant's argument, the court papers
and the docket indicate that the defendant was served in hand
with a copy of the 209A order in November 2019. That 209A order
put the defendant on notice that a hearing would be held on
November 4, 2021, at which "an extended order may be issued
against him if he did not appear at the hearing." Commonwealth
v. Delaney, 425 Mass. 587, 591-592 (1997), cert. denied, 522
U.S. 1058 (1998). The defendant never appealed the issuance of
the 209A order of which he received notice in November 2019, or
sought to reschedule the November 4, 2021 hearing of which he
had notice.
The defendant's letters dated March 20, 2023, to the
District Court do not allege that he was unaware of the hearing
that took place on November 4, 2021, or that he requested to
attend the hearing. Cf. M.M. v. Doucette, 92 Mass. App. Ct. 32,
39 (2017) (defendant filed a motion asking to be heard). He
failed to appear at that 2021 extension hearing.
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Lastly, the defendant argues that the 209A order should
never have issued because it was based on false and misleading
statements by the plaintiff. The judge who issued the 209A
order in August 2019 credited the plaintiff's affidavit
describing the defendant's prolonged sexual abuse of her when
she was a child. The defendant never sought to appeal from the
issuance of that order. The three other judges who extended the
209A order in September and November 2019 and made it permanent
in November 2021 did so based on a "continued need for . . .
[the] order to protect the plaintiff from the impact of the
violence already inflicted." Callahan v. Callahan, 85 Mass.
App. Ct. 369, 374 (2014). See also Yasmin Y. v. Queshon Q., 101
Mass. App. Ct. 252, 257 (2022) (extension of harassment
prevention order based on prior sex offense reviewed to
determine whether order will "protect the plaintiff from the
impact of the violence already inflicted" [quotation omitted]).
The judge was not required to accept the defendant's assertions
as true. See Commonwealth v. Leng, 463 Mass. 779, 787 (2012).
Because "[t]here is no error in the denial of a motion that
merely seeks, as this one did, a 'second bite at the apple,'"
Liberty Sq. Dev. Trust v. Worcester, 441 Mass. 605, 611 (2004),
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we see no error in the denial of the defendant's motion for
reconsideration on that basis.2
The judge did not abuse his discretion in refusing to
reconsider the issuance of the permanent restraining order or in
declining to have a telephone conference with the defendant. To
the extent we have not specifically addressed the defendant's
remaining arguments, they have not been overlooked; we "find
2 Any challenge to the judge's decision not to hold a
hearing on the reconsideration motion is also meritless. "A
judge's conclusion that a motion for new trial and the
accompanying affidavits do not raise a substantial issue such
that a hearing is required is entitled to substantial
deference." Commonwealth v. Bogannam, 50 Mass. App. Ct. 913,
915 (2001).
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nothing in them that requires discussion." Commonwealth v.
Domanski, 332 Mass. 66, 78 (1954).
Order entered March 28, 2023,
denying motion to vacate or
reconsider permanent 209A
order affirmed.
Order entered March 28, 2023,
denying motion for
telephone conference
affirmed.
By the Court (Henry, Grant &
D'Angelo, JJ.3),
Clerk
Entered: August 6, 2024.
3 The panelists are listed in order of seniority.
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