Opinion
15-P-854
03-21-2016
MAUREEN QUIRK v. MARK COOLEN.
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
The defendant, Mark Coolen, appeals from the denial of his motion to vacate a G. L. c. 209A abuse prevention order (209A order) issued by a judge of the West Roxbury Division of the Boston Municipal Court. We affirm.
On July 22, 2013, the plaintiff, Maureen Quirk, filed a complaint and affidavit seeking a 209A order against the defendant. The judge declined to issue an ex parte order, and scheduled the case for a two-party hearing on July 29, 2013. At the hearing, both parties appeared, and a second judge entered a 209A order for a period of one year. On April 15, 2014, nearly nine months after the 209A order had entered, the defendant, acting pro se, filed a motion to terminate the 209A order (motion). At an April 29, 2014, hearing on the motion, neither party appeared. On July 29, 2014, one year after the 209A order had entered, another hearing was scheduled to address the continuance of the 209A order and the defendant's motion. A third judge presided over the July 29, 2014, hearing, at which the plaintiff failed to appear. The 209A order accordingly expired by its own terms at 4:00 P.M. on that date. The third judge also heard the defendant's motion and took it under advisement. On August 19, 2014, the defendant, now represented by counsel, filed materials to supplement his motion to terminate, now styled as a "motion to vacate," including a memorandum of law in support of his motion and an affidavit. On September 12, 2014, the third judge entered an order, which, among other things, referred the motion to the second judge, who had entered the 209A order. The second judge denied the motion after a hearing. The defendant timely appealed from the denial of his motion.
The plaintiff did not file a brief or appear for oral argument.
Defense counsel filed an appearance in the case on July 10, 2014.
The record contains a substitute motion, dated July 1, 2014, entitled "Motion to Vacate Restraining Order." The docket does not indicate when the substitute motion was filed.
The record includes a second notice of appeal, dated May 7, 2015, in which the defendant "requests permission to appeal the actual issuance of the restraining order" and acknowledges the lateness of the notice of appeal.
Discussion. It is undisputed that the defendant did not appeal from the entry of the underlying 209A order. The time to appeal the underlying order is tolled only if a motion to terminate or vacate, however styled, is filed within ten days of entry of the 209A order. Here, the defendant's motion cannot serve as a substitute for that appeal when it was filed over nine months after the entry of the 209A order. See Muir v. Hall, 37 Mass. App. Ct. 38, 41 (1994). Moreover, while a defendant in a 209A action can seek to vacate the underlying order or terminate it prospectively, such a motion does not revive the right to challenge the original issuance of the order, absent a timely notice of appeal. See MacDonald v. Caruso, 467 Mass. 382, 384 n.4 (2014), citing Iamele v. Asselin, 444 Mass. 734, 742 (2005). We do not consider the defendant's claims that the second judge abused his discretion in entering the 209A order because that appeal is not properly before us.
The defendant argues that because 209A orders have important adverse collateral consequences, appeals of their issuance do not become moot simply because the orders have expired. This proposition is true as far as it goes. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998). It does not follow, however, that a defendant who waived his right to appeal the issuance of a 209A order can revive that appeal at any time.
Order denying motion to vacate affirmed.
By the Court (Katzmann, Milkey & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 21, 2016.