Opinion
No. 12–P–907.
2013-03-6
Laureen FRANKLIN v. Brian P. LAVALLE.
By the Court (GRASSO, BROWN & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Having reviewed the brief submitted by the defendant on appeal, together with the materials included in the record appendix, we discern no cause to disturb the judge's order. In denying the defendant's 2012 motion to vacate or modify the restraining order, the motion judge observed that the defendant was aware of the order but failed to request process to bring him before the court on the date of the next hearing. The defendant's assertion that he was denied due process, in violation of his constitutional rights, accordingly is without merit. By his failure to appear at the November 3, 2006, hearing, the defendant waived his opportunity to present evidence opposing, or otherwise to challenge the evidence presented by the plaintiff at that hearing in support of her request to make the order permanent. We further observe that, although (as the defendant notes) a “permanent” abuse prevention order is always eligible for review, see Lonergan–Gillen v. Gillen, 57 Mass.App.Ct. 746, 750 (2003), the defendant's motion for modification of the order furnished no evidentiary or substantive grounds in support of the request, other than his absence from the November 3, 2006, hearing. The motion judge did not abuse his discretion in denying the motion.
The defendant does not appear to challenge the judge's finding to that effect, and the record he has supplied in support of his appeal furnishes no basis to question the finding.
Order denying motion to vacate or modify abuse prevention order affirmed.