Opinion
10-P-1913
09-29-2011
SANDRA HARDING v. DANIEL GASCOYNE.
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
The issue of this appeal is whether the defendant, Daniel Gascoyne (Gascoyne), has received adequate notice and opportunity to be heard at the hearing resulting in the conversion of a G. L. c. 209A abuse prevention order from temporary to permanent status. The order resulting from the hearing in the Probate and Family Court for Plymouth County (probate court) prohibited Gascoyne from abusing, contacting, and coming within fifty yards of the plaintiff, Sandra Harding (Sandra). The order also directed him to stay away from her residence. G. L. c. 209A, §§ 1, 7.
Sandra is the defendant's mother-in-law. By a separate order, the judge permitted contact between Gascoyne and his daughter under supervision at an approved visitation center.
Gascoyne argues that he did not receive notice of, and an opportunity to be heard at, the hearing of December 8, 2006, at which a judge of the probate court converted the order from temporary (annual duration) to permanent status.
Background. The following facts are undisputed. On October 23, 2004, Gascoyne was operating a motor vehicle in the town of Plymouth; it went off the road and struck a tree; the collision caused the death of his wife, Courtney Harding. On October 25, two days later, Sandra and her husband (Courtney's parents) acquired temporary guardianship of Caragen Gascoyne, the daughter of Courtney and Gascoyne. That guardianship is now permanent.
On December 9, 2004, Sandra obtained an abuse prevention order against Gascoyne. It ordered him to cease any abuse of Sandra, to refrain from any contact with her unless authorized by the court, and to leave and remain away from her residence. On the following day, the probate court (through the same judge) extended the order by one year to December 9, 2005. The record indicates that an officer or constable made service of that order on December 10, 2004. The order of December 9, 2004, recited that the next hearing date would be December 9, 2005. On December 9, 2005, at a hearing from which Gascoyne was absent, the court (same judge) extended the order to December 8, 2006. That order recited that the next hearing date would be December 8, 2006.
Finally, at the hearing of December 8, 2006, the court (same judge) made the order permanent. The face of that order indicates that, again, Gascoyne was not present.
Meanwhile, on March 23, 2006, a Superior Court jury convicted Gascoyne of involuntary manslaughter of Courtney Harding. The conviction resulted from evidence that Gascoyne had been operating his motor vehicle under the influence of alcohol at the time of the fatal collision of October 23, 2004. Gascoyne received a sentence of six to eight years at State prison. Gascoyne received service of the permanent order on or about February 19, 2008, or more than fourteen months after its entry. On or about March 10, 2008, Gascoyne submitted a motion for relief from the permanent order under Mass.R.Civ.P. 60(b)(1), (3), (5), and (6), 365 Mass. 828 (1974), alleging lack of service, notice, and opportunity to be heard against the conversion of the order to permanent status. The judge (who had entered the abuse prevention orders) denied the motion. Gascoyne timely appealed to this court. In an unpublished memorandum and order pursuant to our rule 1:28, this court vacated the denial with the following language:
'Because we are unable to determine from this record whether Gascoyne did receive actual notice, we vacate the order denying Gascoyne's motion for relief from the permanent abuse prevention order issued on December 8, 2006, and remand the matter to the Probate and Family Court for the judge to make findings of fact as to whether Gascoyne received notice of the hearing at which the permanent order issued.'Harding v. Gascoyne, 75 Mass. App. Ct. 1102 (2009).
In response to the remand, the judge issued a memorandum of decision and order, in which she did not make a specific finding whether Gascoyne had received actual notice of the hearing of December 8, 2006. Rather she reasoned that, in September of 2006, he had filed the motion for relief from judgment or from the abuse prevention order because he was incarcerated and no longer posed a threat to Sandra; that he did not then claim lack of service or notice; that he appeared to know that the restraining order had been extended on December 9, 2005; and that he was able to know, or to learn of, a pattern of annual extensions on or about December 8 or 9 of each year. She concluded that, '[w]ith reasonable inquiry,' he 'could have discovered the date of the hearing and appeared for it.' She reasoned that Gascoyne could not ignore information indicating a scheduling pattern; and that he 'was served with the initial restraining order in this matter and was therefore put on notice that if he did not appear at the hearings it could be extended and eventually made permanent.'
Analysis. In the circumstances of this case, that rejoinder is not fully responsive. First, the record indicates that Gascoyne received no notice of the hearing of December 8, 2006. The judge appears to have acknowledged that circumstance. Additionally, the record contains a letter to Gascoyne from the administrative attorney of the probate court, dated March 4, 2008, acknowledging, 'The extensions [beyond the original order] were entered without service being made pursuant to the applicable case law.'
The entitlement to a fair hearing opportunity is substantial. The Supreme Judicial Court has reasoned that the target of a c. 209A order has an implied statutory and arguable due process entitlement to be heard, to present evidence, and to cross-examine witnesses against him. Frizado v. Frizado, 420 Mass. 592, 596-598 (1995). The judge may, as always, in accordance with inherent authority and discretion, regulate the hearing. Ibid.
The statute offers a remedy. General Laws c. 209A, § 3, amended by St. 2000, c. 236, § 23, includes the following provision:
'The court may modify its order at any subsequent time upon motion by either party. When the plaintiff's address is inaccessible to [Gascoyne] . . . and [Gascoyne] has filed a motion to modify the court's order, the court shall be responsible for notifying the plaintiff.'Gascoyne therefore has a right to seek modification of the permanent order. He may exercise it during incarceration by submission of a motion to the court and service of it upon Sandra, and by habeas corpus process enabling his presence at a resulting hearing. Or he may choose to defer such a motion to a time after his release from incarceration. If necessary, the court shall be responsible for notification of Sandra of any such motion and hearing.
Order dated November 10, 2009, affirmed without prejudice to Gascoyne's right to seek modification pursuant to G. L. c. 209A, § 3.
By the Court (Grasso, Kafker & Sikora, JJ.),