D.C.L. & others 1 v. N.J.H. (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from (1) the denial of her motion to modify a G. L. c. 258E harassment prevention order entered against her on June 16, 2016 (2016 order) and (2) the subsequent extension of the 2016 order on July 5, 2017 (2017 order). The defendant contends that the 2016 order is void because the court lacked subject matter and personal jurisdiction, and because the proceedings did not comport with due process. The defendant argues further that the judge did not have a proper factual basis to enter the 2017 order. We disagree and affirm.

Background. On June 14, 2016, the plaintiffs, D.C.L. and his family,³ obtained an ex parte temporary harassment prevention order in the Superior Court against the defendant, N.J.H., and her minor son.⁴ The plaintiffs and the defendant are next door neighbors in Lincoln; the c. 258E complaint was accompanied by D.C.L.'s affidavit that detailed numerous acts by the defendant directed at the plaintiffs, including a direct threat by the defendant to “beat [D.C.L.] to death.”

Two days later on June 16, 2016, a judge held a hearing on whether to extend the ex parte order. The defendant appeared pro se and informed the judge that while she had been served with a copy of the ex parte order, she had not been provided with D.C.L.'s affidavit, and was unaware of the allegations against her. The judge ordered a recess and the defendant reviewed D.C.L.'s affidavit. The defendant then responded orally to the allegations, at length. The judge extended the order for one year (2016 order). Importantly, the defendant did not appeal from the 2016 order, nor did she file a motion for reconsideration.

Nine months later, in March of 2017, the defendant moved to vacate the 2016 order through a motion to modify under G. L. c. 258E, § 3 (e). A different judge (motion judge) ruled that he would treat the motion to modify as a Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), motion for relief from judgment, and accordingly, that he would consider only the defendant's arguments that the 2016 order was void due to lack of subject matter and personal jurisdiction, and due to violations of due process. On June 15, 2017, after a hearing, the motion judge determined that the defendant was not entitled to postjudgment relief, but dismissed the 2016 order as to the defendant's son because the Superior Court lacked jurisdiction over him. The defendant appealed from the order denying her motion to modify the 2016 order.

The motion to modify having been denied, the question remained as to whether the 2016 order should be extended for another year. On July 5, 2017, a different Superior Court judge (extension judge) heard argument on D.C.L.'s request to extend the 2016 order, at which both parties appeared and were represented by counsel.⁵ The extension judge heard testimony from the plaintiffs, D.C.L. and his wife J.L., who recounted the allegations that led to the 2016 order, and also testified to incidents that occurred after the 2016 order. These new incidents included the following: (1) the defendant violently smashed a swastika-emblazoned teddy bear with a baseball bat in her driveway in full view of the plaintiffs (and while the defendant's son filmed the event);⁶ (2) thereafter, the defendant set the teddy bear on fire in her driveway, and then mounted it in the driveway, with nighttime reflectors; and (3) the defendant intentionally released her German Shepherd from its leash in proximity to J.L. and her dogs. The judge granted the extension, noting that it could be justified based solely on the new incidents, or alternatively, because an extension of the time period was necessary in light of both the prior acts and the new acts. The defendant appealed from the 2017 order, and her several appeals were consolidated.

Discussion. The defendant raises three principal issues on appeal: (1) that the 2016 order was void for lack of jurisdiction; (2) that the 2016 order was void due to violations of due process; and (3) that the evidence was insufficient to support the 2017 extension order. None of these arguments have merit.

1. The challenges to the 2016 order. The motion judge treated the defendant's motion to modify the 2016 order as a motion for relief from judgment under rule 60 (b) (4). We review the denial of a rule 60 (b) motion for abuse of discretion or other error of law. Wang v. Niakaros, 67 Mass. App. Ct. 166, 169 (2006). First, the defendant contends that the Superior Court lacked subject matter jurisdiction over the entire case because one of the defendants was a juvenile -- in other words, that the presence of the defendant's minor son as a party divested the court of jurisdiction over the claims against the defendant as well. The defendant's interpretation of the relevant statute, G. L. c. 258E, § 2, is incorrect. That statute grants jurisdiction over c. 258E cases to the Superior Court and the District Court, while reserving to the Juvenile Court “exclusive jurisdiction over proceedings under this chapter in which the defendant is under the age of 18.” The Superior Court thus had jurisdiction over the complaint against the defendant. It did not have jurisdiction over the complaint against the defendant's minor son. While the statute does not expressly address a situation, as here, where there are both adult and juvenile defendants, the plain language of the statute also does not state that the joining of a juvenile divests the Superior Court of jurisdiction to enter an order that was binding on the adult, N.J.H.

Statutes should be construed in a common sense manner, consistent with their plain meaning and the Legislature's evident intent. See Sullivan v. Brookline, 435 Mass. 353, 360 (2001). We do not perceive anything in the statutory language, or in legal principle, that would suggest that the Superior Court would lose its power over the adult defendant merely because a juvenile had been joined. Here we believe the motion judge handled the issue appropriately, by dismissing the juvenile as a defendant in the Superior Court, but otherwise maintaining jurisdiction.⁷

Next the defendant contends that the court failed to gain personal jurisdiction over her because although she was served with the summons prior to the June 16, 2016 hearing, the summons did not have the c. 258E complaint and affidavit attached. The motion judge ruled that the defendant waived the defense of personal jurisdiction because it was not raised until nine months later in the motion to modify, and because in any event, the defendant was provided adequate notice of the allegations and a meaningful opportunity to respond. We discern no error.

At the outset, we note that the service issue the defendant raises does not go to “personal jurisdiction.” The defendant admits she was served with a copy of the ex parte order, including notice of the next hearing date. The defendant lives in Massachusetts, and she appeared at the hearing and argued. The court had jurisdiction over the defendant's person. See Ingersoll v. Ingersoll, 348 Mass. 209, 210 (1964); Lamarche v. Lussier, 65 Mass. App. Ct. 887, 889-892 & n.8 (2006).

Rather, the issue the defendant raises is alleged noncompliance with the requirement, in c. 258E, § 9, that she be served with a copy of the complaint and supporting affidavit in addition to the c. 258E harassment protection order. We need not decide whether this alleged failure could constitute a violation of due process because under the circumstances, we agree with the motion judge that the issue was waived here.

The defense of lack of proper service may be waived. Raposo v. Evans, 71 Mass. App. Ct. 379, 385-386 (2008). Here the defendant informed the judge at the beginning of the June 16, 2016 hearing that she was served with the ex parte order and summons, but that she was not provided a copy of the complaint or the affidavit. The judge took a recess so that the defendant could review those documents. The defendant then gave a lengthy and detailed oral response, after which the judge extended the order in open court, resulting in the 2016 order. The defendant did not argue that the judge lacked the power to act as a result of the alleged partial failure of service. Nor did the defendant appeal from the 2016 order. The defense was accordingly waived, and could not be resuscitated by a rule 60 motion filed nine months later. See Lamarche, 65 Mass. App. Ct. at 889. See also American Int'l Ins. Co. v. Robert Souffer GmbH & Co. KG., 468 Mass. 109, 120 (2014) (in evaluating waiver judge should consider, among other things, amount of time elapsed before assertion of defense, and whether party actively participated in litigation).

The defendant also argues that the 2016 order is void because the June 16, 2016 hearing, for several reasons, did not comport with due process. These contentions are also without merit. The defendant objects, for example, to the lack of cross-examination, and to the absence of sworn testimony. None of the defendant's current objections were raised at the 2016 hearing, however, and no appeal was taken from the 2016 order. Moreover, the defendant was able to respond comprehensively to the allegations against her (notably, she admitted some critical allegations), and she did not request an opportunity to present any additional evidence or to call any witnesses. See Frizado v. Frizado, 420 Mass. 592, 598 (1995) (“Whether a defendant's constitutional rights have been violated will depend on the fairness of a particular proceeding”).

2. The 2017 order. Finally, the defendant argues that there was no proper basis for the 2017 order. The defendant raises several procedural and evidentiary challenges, but the thrust of her argument is that both the 2016 and 2017 orders were based on acts that constituted protected speech, and that such acts could not satisfy the requirements of c. 258E. See O'Brien v. Borowski, 461 Mass. 415, 420 (2012). Once again we discern no error.

To obtain a harassment prevention order the plaintiff must present evidence of three or more acts of willful and malicious conduct, aimed at the plaintiff, “with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” G. L. c. 258E, § 1. See O'Brien, 461 Mass. at 420. Acts that constitute protected speech cannot qualify for the three required acts under the statute; however, “true threats” or “fighting words” are not protected speech and thus can constitute actionable conduct. Id. at 422-424. In assessing whether the defendant's actions did in fact cause fear or intimidation “the fact finder must look to the cumulative pattern of harassment ․ [because] it is the entire course of harassment, rather than each individual act, that must cause fear or intimidation.” Id. at 426 n.8. Once a harassment prevention order has entered it can be extended without a showing of additional acts of harassment, if an extension is “reasonably necessary to protect the plaintiff.” G. L. c. 258E, § 3 (d).

Here the defendant's arguments against the 2017 order fail because the record reveals (and the judge found) at least three new acts of harassment that occurred after the 2016 order entered, which acts did not constitute protected speech. First, the defendant violently beat a swastika-bearing teddy bear with a baseball bat, in her front yard and in plain view of the plaintiffs. Second, the defendant later burned the teddy bear and affixed light reflectors to its remains, and then placed it near the plaintiffs' property boundary so that the plaintiffs would see it at all hours. Third, the defendant unleashed her German Shepherd at J.L. and her dogs, and made no attempt to restrain the German Shepherd while J.L. screamed and yelled at it to go away. D.C.L. and J.L. testified directly and repeatedly to the ways in which the defendant's acts made them fearful for their safety and the safety of their children, and the judge credited that testimony.

None of the above acts constitute protected speech. It is doubtful that any of these actions could qualify as speech, but in any event the actions are not protected, because they qualify as true threats. See O'Brien, 416 Mass. at 423, quoting Virginia v. Black, 538 Mass. 343, 359 (2003) (“True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual”). The acts identified above thus provide proper support for the 2017 order, and we accordingly need not address the defendant's arguments that are directed at other alleged acts -- such as the posting of signs and the use of vulgarity -- which may have constituted protected speech.⁸ ,⁹

Order denying motion to modify 2016 order affirmed.

Extension order dated July 5, 2017, affirmed.

FOOTNOTES

3.   The plaintiffs include D.C.L.'s wife J.L., their two minor children, and D.C.L.'s mother.

4.   The order against the defendant's minor son was dismissed and he is not involved in these proceedings.

5.   The 2016 order was due to expire on June 16, 2017, but was extended because of the unavailability of the judge.

6.   At the June 16, 2016, hearing there was testimony that the swastika-bearing teddy bear had been placed on the defendant's property, facing the plaintiffs' property. When the plaintiffs built a fence, the defendant mounted the bear on a basketball hoop, so it could be observed over the fence. At the end of the June 16, 2016, hearing, the judge told the defendant that she was “on notice that the display of the swastika teddy bear ․ is deemed a violation of the order.”

7.   We recognize that if a plaintiff seeks an order against both an adult and a juvenile arising out of a common nucleus of facts, our resolution might require proceedings in two courts.

8.   The defendant's arguments against the 2017 order are often directed at acts that were testified to in connection with the 2016 order. As there was no appeal from the 2016 order, these arguments likely are procedurally improper. See Iamele v. Asselin, 444 Mass. 734, 742 (2005). In any event, we need not wade into the thicket of what acts that supported the 2016 order can be challenged, or not challenged, on this appeal, because the 2017 order is justified based solely on acts that occurred after the 2016 order.

9.   To the extent that we have not addressed other specific arguments made by the defendant, they have not been overlooked. We have considered them and have found them to be without merit.