Opinion
14-P-305
02-04-2015
CATE A. DOUCETTE v. TIMOTHY M. ROHE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Pro se plaintiff Cate A. Doucette filed for an emergency ex parte G. L. c. 209A abuse prevention order against pro se defendant Timothy M. Rohe, alleging that the defendant, then one of her roommates, sexually assaulted her and was verbally abusive to her. The order was issued, and later, after a two-party evidentiary hearing, was extended for a period of one year. In addition the defendant was listed on the Statewide domestic violence registry system (registry).
Thereafter the defendant, through counsel, filed a motion for "relief from judgment" and a motion for an evidentiary hearing thereon. Both motions were denied on the pleadings.
On appeal from the denials, the defendant argues that the abuse prevention order should have been vacated and his name expunged from the registry because he was not given an opportunity to answer the claims made against him by the plaintiff. The claims against him, he asserts, continued to evolve between the date the ex parte request was filed and the date of the extension hearing. In addition, he contends that the plaintiff committed acts of misrepresentation and fraud on the court. We affirm.
Background. On October 3, 2013, the plaintiff filed a request in the Somerville division of the District Court Department for an emergency ex-parte c. 209A abuse prevention order. In her affidavit in support of the application for the order, the plaintiff alleged that, beginning in late March or early April, 2013, after she and the defendant ended their romantic relationship, the defendant, while intoxicated, sexually assaulted her on three occasions, the last assault occurring in late June or early July. She further stated that on each occasion, the defendant entered her room in the apartment they and another roommate shared, mounted and groped her, then proceeded to "grind" his body against her and lick her without her consent. The plaintiff also alleged that the defendant was verbally abusive to her. An emergency ex parte order issued and the matter was scheduled for an October 15, 2013, hearing on an extension of the order.
On October 4, 2013, the defendant went to the same court and filed a request for an emergency ex parte c. 209A abuse prevention order against the plaintiff. That request was denied, and the matter was continued to the already-scheduled full hearing on October 15, 2013.
On October 15, 2013, both parties were present, pro se, for the hearing. After the hearing, at which both parties testified, the one-year extension order issued that day, and the defendant was ordered to refrain from abusing or contacting the plaintiff, and to stay away from the plaintiff and her workplace. The defendant's request for an abuse prevention order against the plaintiff was again denied.
The defendant claimed that the plaintiff's medication causes her to exhibit mental abnormalities; he also claimed that the plaintiff, on occasion, failed to take her medication, which also caused her to exhibit mental abnormalities. The defendant further claimed that the plaintiff "self-medicates" by abusing nicotine, alcohol, and drugs and by engaging in risky sexual behaviors. Moreover, the defendant claimed that the plaintiff has verbally and physically abused him.
On October 25, 2013, the defendant, represented by counsel, filed a motion styled as for "relief from judgment" and a motion to schedule an evidentiary hearing. The motions alleged that the plaintiff had perpetrated a fraud on the court. Both motions were denied on the pleadings on December 2, 2013. The defendant filed a timely notice of appeal from the denials.
The motion is also referred to on the docket as "motion to vacate order."
The plaintiff also filed on the same date a pro se motion to vacate the c. 209A order and to expunge his name from the registry, and, on a later date, a pro se motion for a court order for the release of certain of the plaintiff's medical records. At a hearing on these matters on January 13, 2014, the defendant testified on his own behalf but called no other witnesses. The motions were denied after the hearing, but no notice of appeal was filed as to them.
Discussion. We find no merit in the defendant's argument that the c. 209A order should have been vacated because he was not fully informed of the "charges against him" and, therefore, was denied an opportunity to introduce evidence. A review of the transcript of the October 15, 2013, hearing and the remainder of the record appendix fails to disclose anything to suggest that the defendant did not have a full and fair opportunity to present evidence supporting his contentions. In addition, we note that while the plaintiff fleshed out her allegations at the hearing and added some detail, her hearing testimony was essentially consistent with her original affidavit, which fairly apprised the defendant of the "charges against him." The defendant also here attempts to raise hearsay and other evidentiary objections, none of which were raised below and are therefore deemed waived.
Among other things, the defendant complains that the judge denied his requested evidentiary hearing. We see no error where the judge denied that motion after the defendant did not appear, and where the motion for "relief from judgment" and the supporting affidavit suggested no basis for relief.
We also reject the defendant's attempt, essentially, to re-argue the evidence and to rely on various materials submitted in connection with his motion to expunge, which is not before us (see note 3, supra), suggesting that the plaintiff's version of the events was wholly fabricated or perhaps the product of mental illness. We conclude that, even considering the materials, there is no basis to disturb the judge's conclusion that the defendant failed to make a prima facie showing of clear and convincing evidence that the plaintiff fraudulently obtained the abuse prevention order. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 728-737 (2006).
Two letters from the defendant's mental health providers essentially state that the defendant had never expressed to them any violent impulses toward the plaintiff, and an affidavit from the parties' other roommate was to the effect that while the roommate had observed the defendant and the plaintiff apparently engaged in consensual sexual relations on one occasion, he had never observed the defendant abuse the plaintiff.
Accordingly, the order entered December 2, 2013, denying the defendant's motions for "relief from judgment" and for an evidentiary hearing is affirmed.
So ordered.
By the Court (Kantrowitz, Graham & Katzmann, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: February 4, 2015.