Opinion
10-P-1841
03-13-2012
NANCY HAMEL v. WAYNE P. GARFIELD.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On July 23, 2010, the plaintiff, as guardian for her sister Jacqueline and on her behalf, filed a complaint in the District Court for an abuse protection order against the defendant. After an ex parte hearing, the judge issued a no-contact order under G. L. c. 209A. Because the defendant was reportedly homeless, the judge further ordered that the defendant be served at the address he provided for receiving mail, a local shelter at 39 Kingston Street, in Boston, and also under an alias of 'Harlen Nook.'
The defendant did not appear at the extension hearing, held on August 6, 2010, before a different judge. After noting the absence of the defendant, the judge inquired about service of the order.
THE COURT: Well, he was given notice by the Boston Police [inaudible] at a shelter [inaudible] I believe is what Judge Singer ordered. Do you -- did you hear from any indirect source that he knows about the order?
THE COURT: I'm going to assume this was adequate notice for him because of the alternate service that Judge Singer ordered.
The judge found that the defendant had received notice. Thereafter, the judge heard testimony that the defendant had punched the victim in the face, had pushed her down stairs, and was actively trying to contact her. At the completion of the hearing, the judge extended the order to August 5, 2011.
On August 18, 2010, the defendant called the victim, and, as a result, was arrested for violating the no-contact provision of the extended order. The defendant filed a notice of appeal as to the ex parte and extension orders. Thereafter, he filed a series of motions, seeking to vacate both orders, claiming that he had not received notice of either order, that notice of the 209A orders was deliberately withheld from him, and that the plaintiff had failed to establish 'a substantial likelihood of immediate danger of abuse.' The motions were denied and the defendant filed timely appeals from those orders, and a motion to consolidate his appeals.
Discussion. After review of the defendant's briefs, appendixes, and accompanying documents, we see no basis to disturb the judges' orders. Although the defendant contends that he had no opportunity to appear and be heard or to cross-examine witnesses, he never provided a sworn statement to support his allegations of lack of service or notice. Consequently, the record supports the conclusion that the police made service upon the defendant by leaving it at his last known address, the shelter.
In addition, the defendant twice had the opportunity to be heard on the merits respecting his motion to modify and his motion to vacate, thus essentially curing any deficiency of due process. Not only did he fail to raise the issue of denial of due process by either motion, he failed to appear at the first hearing, and walked out of the second before it was over. Clearly, he has had ample opportunity to demonstrate that he did not receive proper notice or an opportunity to be heard or to assert other rights (such as confrontation), but failed to take advantage of it.
Order issued July 23, 2010, affirmed.
Order issued August 6, 2010, affirmed.
Order dated November 19, 2010, denying motion to 'modify'
order issued August 6, 2010, affirmed.
Order dated January 11, 2011, denying motion to vacate G. L. c. 209A orders issued July 23, 2010, and August 6, 2010, affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),