Allen v. Allen

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15-P-643 Appeals Court

JULIA ALLEN vs. BARBARA ALLEN.

No. 15-P-643.

Suffolk. February 24, 2016. - May 19, 2016.

Present: Green, Wolohojian, & Henry, JJ.

Abuse Prevention. Moot Question. Practice, Civil, Moot case.
Domestic Violence Record Keeping System.

Complaint for protection from abuse filed in the Central
Division of the Boston Municipal Court Department on April 3,
2015.

A hearing to extend an abuse prevention order was had
before Robert J. McKenna, Jr., J.

Kathleen M. McCarthy for the defendant.

GREEN, J. Does an appeal lie from an ex parte abuse

prevention order issued pursuant to G. L. c. 209A, in

circumstances where the order was terminated ten days later at a

hearing after notice pursuant to c. 209A, § 4? We conclude that

termination of the ex parte order at the hearing after notice,

accompanied by an order directing law enforcement agencies "to
2

destroy all record of such vacated order," renders the

defendant's appeal moot. G. L. c. 209A, § 7, as appearing in

St. 1990, c. 403, § 8. We accordingly dismiss the appeal.

Background. On April 3, 2015, the plaintiff filed a

complaint for protection from abuse pursuant to G. L. c. 209A,

seeking a restraining order against the defendant (her mother).

In the affidavit filed with her complaint, the plaintiff averred

that:

"Back in 2008, I cut ties w/ her and asked her to no longer
contact me. Since then, I had to change my phone number,
I've moved multiple times, had to keep an external mailbox
in order to keep my residential address private, but she
keeps finding me & mailing me things. For years I've
returned them to the sender. Once I moved to Boston there
was no mail until 4/3/15 when she mailed a package to my
work address -- I've never given her the address, but she
somehow tracked it down."

A judge of the Central Division of the Boston Municipal

Court Department held a hearing that day, at which the plaintiff

was the only party present and the only witness. The colloquy

at the hearing added little to the averments in the affidavit.1

1
We quote in its entirety from the hearing transcript the
exchange between the judge and the plaintiff concerning the
basis for the requested restraining order:

Judge: "Have you moved to a new address yet, ma'am?"

Plaintiff: "Since I stopped talking with her, or since she
--" . . . .

Judge: "That's fine. When, on, does she know where you
live now?"
3

On the basis of the plaintiff's presentation, the judge issued

an ex parte order, based on a determination "that there is a

substantial likelihood of immediate danger of abuse," which

ordered the defendant (i) not to abuse the plaintiff; (ii) not

to contact the plaintiff, and to stay at least 150 yards from

her; (iii) to immediately leave and stay away from the

plaintiff's residence, "wherever that may be"; and (iv) to stay

away from the plaintiff's workplace at 100 Franklin Street,

Boston.2 On April 14, 2015, following service of the ex parte

order, notice to the defendant, and a hearing at which both

parties appeared, the order was terminated.

Plaintiff: "She shouldn't."

Judge: "Okay."

Plaintiff: "She only has mailed stuff to my work address."

Judge: "You can be seated. Does she know your workplace,
I take it, then? All right. What is that address,
please."

Plaintiff: "[Work address]."

Judge: "[Work address]? All right. You go to school at
all?"

Plaintiff: "No."
2
The order also directed the defendant (a resident of
McLean, Virginia) to surrender to the Boston police department,
or to the police officer serving the order, all guns,
ammunition, gun licenses, and firearm identification cards.
4

Discussion. Before undertaking an evaluation of the merits

of the defendant's appeal, we must consider whether it is

properly before us. As we have observed, the ex parte order was

terminated at the hearing after notice to the defendant.

Accordingly it is no longer in effect, and could for that reason

alone be considered moot. Nonetheless, many cases have

recognized that abuse prevention orders may carry collateral

consequences following their expiration, so the question whether

the order validly issued is not moot merely because it is no

longer in effect. See, e.g., Frizado v. Frizado, 420 Mass. 592,

594 (1995); E.C.O. v. Compton, 464 Mass. 558, 561 n.12 (2013);

Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998); Smith

v. Jones, 67 Mass. App. Ct. 129, 133 (2006). None of those

cases, however, has addressed the precise circumstance of the

present case, in which an abuse prevention order did not merely

expire, but was terminated at the hearing after notice. The

question, then, is whether an abuse prevention order, issued ex

parte, is itself entitled to appellate review, even if it is

terminated at the hearing after notice. For the following

reasons, we conclude that it is not.

In the present case, the docket reflects that the ex parte

order was terminated at the hearing after notice. In addition,

we note the statement appearing on the second page of the

printed form used for the issuance of abuse prevention orders
5

under c. 209A, designed for use (by checking a box) in

circumstances where the ex parte order is terminated rather than

extended, which reads as follows:

"E. PRIOR ORDER TERMINATED

"This Court's prior Order is terminated. Law enforcement
agencies shall destroy all records of such Order."3,4

Accordingly, the hearing after notice, with its resulting

judicial determination that the order should be terminated and

not extended, and its directive to law enforcement agencies to

destroy all record of it, provided the defendant with the only

relief she could obtain. Because the defendant cannot obtain

any additional relief even by means of a successful appeal, the

appeal is moot.

3
The defendant did not include a copy of the termination
order in the appendix. However, we may take judicial notice of
court records in a related proceeding, see Jarosz v. Palmer, 436
Mass. 526, 530 (2002), and our examination of the termination
order confirms that it entered using the printed form as
described supra, which includes the directive that law
enforcement agencies destroy all records of the ex parte order.
4
Execution of the directive prescribed by G. L. c. 209A,
§ 7, whenever an abuse prevention order is vacated, that law
enforcement agencies destroy all records of the order arguably
eliminates at least some of the collateral consequences that
have supported the argument that an appeal from an expired order
is not moot, because all records of the order would be removed
from the records maintained by law enforcement agencies. See,
e.g., Wooldridge v. Hickey, supra at 638. As discussed infra,
however, records of the order will be maintained in all events
in the Statewide domestic violence record-keeping system.
6

The fact that a record of the order will remain in the

Statewide domestic violence record-keeping system (DVRS) created

by St. 1992, c. 188, § 7, does not suggest a different result.5

See Vaccaro v. Vaccaro, 425 Mass. 153, 155-159 (1997). "The

DVRS is a registry of sorts, established by the commissioner of

probation pursuant to a statutory directive originally enacted

in 1992, and includes, among others, records of the issuance of

and any violations of criminal or civil restraining or

protective orders. St. 1992, c. 188, § 7. Records in the DVRS

are available only to law enforcement and 'judges considering

petitions or complaints' for restraining and protective orders.

See St. 1992, c. 188, § 7." Commonwealth v. Dossantos, 472

Mass. 74, 77-78 (2015). The record of an abuse prevention order

5
The relevant part of St. 1992, c. 188, § 7, provides as
follows:

"The commissioner of probation is hereby authorized and
directed to develop and implement a statewide [DVRS]
. . . . Said [DVRS] shall include a computerized record of
the issuance of or violations of any protective orders or
restraining orders issued pursuant to [G. L. c. 208, §§ 18,
34B; G. L. c. 209, § 32;] civil restraining orders or
protective orders issued pursuant to [G. L. c. 209A] or any
violations of [G. L. c. 209A], or [G. L. c. 209C, §§ 15,
20]. Further, said computerized [DVRS] shall include the
information contained in the court activity record
information system maintained by the office of said
commissioner. The information contained in said [DVRS]
shall be made available to judges considering petitions or
complaints pursuant to [G. L. c. 208, §§ 18, 34B; G. L.
c. 209, § 32; G. L. c. 209A; and G. L. c. 209C, §§ 15, 20].
Further, the information contained in said [DVRS] shall be
made available to law enforcement agencies."
7

entered in the DVRS may be expunged only "in the rare and

limited circumstance that the judge has found through clear and

convincing evidence that the order was obtained through fraud on

the court." Commissioner of Probation v. Adams, 65 Mass. App.

Ct. 725, 737 (2006). See Smith v. Jones, 67 Mass. App. Ct. at

137-138.6 Accordingly, a record of the order would be maintained

in the DVRS even in the event of a successful appeal.

In the present case, as we have observed, the order has

been terminated, and the defendant has obtained all the relief

she could obtain by means of a successful appeal. The appeal

accordingly is dismissed as moot.7

So ordered.

6
We note that this court, in Smith v. Jones, undertook
separate examination of both the ex parte and the extension
orders, ultimately concluding that the record supported issuance
of the ex parte order but not the extension order. 67 Mass.
App. Ct. at 132-137. The present case stands differently,
however, in that the ex parte order reviewed in Smith v. Jones
was extended (albeit improvidently), not terminated, at the
hearing after notice. Id. at 131-132.
7
Were we to undertake an assessment of the merits of the
defendant's appeal, it is plain that the affidavit and other
evidence submitted in support of the request for the ex parte
order was inadequate. The evidence showed no physical harm nor
threat of serious physical harm to the plaintiff. See G. L.
c. 209A, § 1 (defining abuse).