D.F. v. A.F. (2024)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from an order of the District Court, dated January 3, 2022, denying his motion to vacate a harassment prevention order entered against him more than four years earlier, on August 25, 2017, pursuant to G. L. c. 258E.¹ In the intervening time, the defendant appealed from the c. 258E order, without success. See D.F. v. A.F., 99 Mass. App. Ct. 1119 (2021).

In the defendant's present appeal, he raises the claim that the District Court judge violated his right to due process, by converting without adequate notice a hearing on a request for an abuse prevention order under G. L. c. 209A, into a hearing on a request for an order under G. L. c. 258E. The defendant raised the same claim in his previous appeal, and the panel considering that appeal rejected it. The defendant accordingly is precluded from relitigating the same claim.²

Were we to consider the defendant's claims on the merits, we would discern no basis for relief, for substantially the reasons explained by the motion judge in his order denying the motion.³

The order dated January 3, 2022, denying the defendant's motion to vacate the harassment prevention order, is affirmed.

So ordered.

FOOTNOTES

1.   Although it is not apparent from the record before us whether the January 3, 2022 order was docketed in the District Court, the order was provided to us and the same judge who decided the motion allowed the defendant's request to file his appeal late. Therefore, we treat the appeal from the January 3, 2022 order as properly before us.

2.   The panel rejected the defendant's claim in the previous appeal based on the defendant's failure to provide transcripts of the hearing to substantiate his claim. It is of no consequence that the defendant has now furnished transcripts of the previous hearing; principles of res judicata bar relitigation of all claims that were or could have been raised in a prior proceeding. See Heacock v. Heacock, 402 Mass. 21, 23 (1988). The defendant's failure to furnish a record adequate for review of his claim in the prior appeal precludes him from pursuing the same claim in a subsequent action, albeit with a more complete record.

3.   It would also appear that the defendant's motion is untimely. See Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974).