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18-P-341                                           Appeals Court

                          V.M.   vs.   R.B.


                           No. 18-P-341.

      Middlesex.       October 5, 2018. - November 28, 2018.

           Present:   Massing, Ditkoff, & Englander, JJ.


Abuse Prevention. Protective Order. Jurisdiction.     Moot
     Question. Practice, Civil, Moot case.



     Complaint for protection from abuse filed in the Concord
Division of the District Court Department on September 6, 2017.

    The case was heard by Lynn C. Brendemuehl, J.


    Karen D. Hurvitz for the defendant.
    V.M., pro se.


    MASSING, J.    As a rule, a defendant who is the subject of

an abuse prevention order issued ex parte at the commencement of

an action brought under G. L. c. 209A may challenge the order at

the ensuing hearing after notice -- not by an appeal to an

appellate court.   In this appeal, we consider whether proof of a

"substantive dating or engagement relationship," G. L. c. 209A,
                                                                    2


§ 1, at the ex parte hearing is a prerequisite for subject

matter jurisdiction, warranting appellate review notwithstanding

the extension of the ex parte order at the hearing after notice.

We conclude that the existence of a substantive dating

relationship is not jurisdictional; therefore, we dismiss the

defendant's appeal from the ex parte order as moot and affirm

the order after notice.

    Background.   The plaintiff, V.M., applied for an abuse

prevention order against the defendant, R.B.   On the Trial Court

Department's "Complaint for Protection from Abuse (G. L.

c. 209A)" form, she checked the box indicating that she and the

defendant "are or were in a dating or engagement relationship."

In her affidavit in support of her complaint, the plaintiff

alleged that the defendant threatened her through text messages,

phone calls, and in person over the course of Labor Day weekend

in 2017.   The affidavit did not describe the plaintiff's

relationship with the defendant beyond stating that the

defendant had called her "a whore" and told her that "now he

would have to make sure he got tested."

    At the ex parte hearing in the District Court on September

6, 2017, the judge questioned the plaintiff about the nature of

her relationship with the defendant.   The plaintiff testified

that she and the defendant "were dating."   Although they "never

made it like official boyfriend/girlfriend," their relationship
                                                                    3


was exclusive in that she "wasn't having a relationship with

anyone else" and he told her that "he was doing the same."     At

the conclusion of the hearing the judge entered an order

prohibiting the defendant from abusing or contacting the

plaintiff and requiring him to stay away from her, her

residence, and her workplace.1

     Nine days later, on September 15, 2017, both parties

appeared for a hearing before the same judge, the defendant

being represented by counsel.    The record before us is silent

regarding the evidence presented at the hearing.    The defendant

provided us with only the transcript of the ex parte hearing; he

intentionally did not order a transcript of the hearing after

notice.2   The record indicates that the defendant filed a motion

to vacate the restraining order and expunge the record at the

hearing after notice, arguing, as he does in this appeal, that

the judge lacked jurisdiction to extend the order because the

evidence at the ex parte hearing failed to establish a


     1 Given the view we take of this appeal, we express no
opinion on the sufficiency of the plaintiff's proof of a
substantive dating relationship at the ex parte hearing.

     2 In preparing the record on appeal, see Mass. R. A. P.
8 (b) (3) (ii), as amended, 428 Mass. 1601 (1998), the defendant
designated for transcription the recording of the ex parte
hearing "and only that recording," further stating, "In other
words, the defendant does not designate the recording of the
hearing [after notice] for inclusion in the transcript of the
proceedings for purposes of appeal."
                                                                     4


substantive dating relationship.    After the hearing, the judge

extended the order for six months.    Although the docket sheet

does not reflect any action on the motion to vacate, the

extension of the order effectively denied it.

     Twenty-five days after the entry of the extended order, the

defendant filed his notice of appeal from "the abuse-prevention

order issued in this matter under purported authority of G. L.

c. 209A."   The plaintiff did not seek to extend the order

further, and it expired on March 16, 2018.3

     Discussion.   The defendant does not challenge the

sufficiency of the evidence underlying the extension of the

c. 209A order at the hearing after notice.    Rather, he argues

that the plaintiff failed to present sufficient evidence of a

substantive dating relationship at the ex parte hearing, and

that this failure divested the District Court of jurisdiction to

hold the hearing after notice.     We hold that the existence of a

substantive dating relationship is an element of a c. 209A claim

and not a prerequisite for subject matter jurisdiction.      As a

threshold matter, we address the availability of an appeal from

an ex parte abuse prevention order.




     3 The expiration of the order does not render this appeal
moot. See C.R.S. v. J.M.S., 92 Mass. App. Ct. 561, 565 (2017);
Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638 (1998).
                                                                     5


    1.   Appellate review of ex parte abuse prevention orders.

A defendant is not entitled to appellate review of an ex parte

abuse prevention order if the order is terminated in the trial

court at the hearing after notice.     See Allen v. Allen, 89 Mass.

App. Ct. 403, 403 (2016).    In such a case, the judge's action of

vacating the ex parte order at the hearing after notice,

"accompanied by an order directing law enforcement agencies 'to

destroy all record of such vacated order," id., quoting G. L.

c. 209A, § 7, gives the defendant "all the relief [he] could

obtain by means of a successful appeal."      Allen, 89 Mass. App.

Ct. at 407.   Accordingly, an appeal from the issuance of the ex

parte order would be moot.    Id.

    Nor is a defendant entitled to appellate review of an ex

parte abuse prevention order if the order is extended in the

trial court at the hearing after notice.      In C.R.S. v. J.M.S.,

92 Mass. App. Ct. 561 (2017), the defendant challenged both the

ex parte order and the extension of that order at the hearing

after notice.   After rejecting his claims with respect to the

extension of the order, we declined to entertain his claims with

respect to the ex parte order.      "Simply put, a defendant is

entitled to be heard on the issue of whether an order pursuant

to G. L. c. 209A should have issued, and a defendant has the

right to appeal the issuance of an order against him or her.

However, a defendant is not entitled to relitigate each stage of
                                                                       6


the proceedings."    Id. at 564.   When the order after notice is

affirmed on appeal, the defendant may not revisit the issuance

of the ex parte order because "that matter is moot:      the ex

parte order has been superseded by the order after notice.        At

the end of the day, even if there were some procedural

irregularity in the issuance of the ex parte order, because we

are upholding the issuance of the order after notice, there is

no relief available to the defendant."     Id. at 565.   The

analysis is no different here, where the defendant challenges

only the ex parte order and does not challenge the extension of

the order on the merits.

    2.     Subject matter jurisdiction.   The defendant does

challenge the issuance of the order after notice in a roundabout

fashion:    he asserts that because the plaintiff failed to

establish a substantive dating relationship at the ex parte

hearing, the court lacked subject matter jurisdiction to extend

the order at the hearing after notice.     To be sure, "a

fundamental tenet of law is that lack of subject matter

jurisdiction is fatal to a plaintiff's claims."     Everett v. 357

Corp., 453 Mass. 585, 612 (2009).    And if the court lacks

subject matter jurisdiction, "the judgment is void."      ROPT Ltd.

Partnership v. Katin, 431 Mass. 601, 605 (2000).

    The flaw in the defendant's argument is that the existence

of a "substantive dating relationship" is merely an element of a
                                                                       7


claim for an abuse prevention order under G. L. c. 209A; it is

not a jurisdictional requirement.4      "Subject matter jurisdiction

is 'jurisdiction over the nature of the case and the type of

relief sought.'"       Middleborough v. Housing Appeals Comm., 449

Mass. 514, 520 (2007), quoting Black's Law Dictionary 870 (8th

ed. 2004).      "Simply put, the question is:   'Has the Legislature

empowered the court to hear cases of a certain genre?'"

Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass.

App. Ct. 40, 41 (2012), quoting Doe, Sex Offender Registry Bd.

No. 3974 v. Sex Offender Registry Bd., 457 Mass. 53, 56-57

(2010).

       Labeling a particular fact as jurisdictional has far-

reaching consequences.      The issue of subject matter jurisdiction

can be raised at any time.      ROPT Ltd. Partnership, 431 Mass. at

607.       "Tardy jurisdictional objections can therefore result in a

waste of adjudicatory resources and can disturbingly disarm

litigants."      Sebelius v. Auburn Regional Med. Ctr., 568 U.S.




       The defendant did not cite any appellate cases in support
       4

of his jurisdictional claim, because there are none. Rather, he
relied exclusively on the Guidelines for Judicial Practice:
Abuse Prevention Proceedings § 3:02 Subject Matter Jurisdiction,
which erroneously suggests that establishing the relationship
between the plaintiff and the defendant is necessary to confer
"subject matter jurisdiction to issue an abuse prevention order
under c. 209A." See M.B. v. J.B., 86 Mass. App. Ct. 108, 116
(2014) (commentary in Guidelines suggesting that defect in venue
is jurisdictional and cannot be waived "inconsistent with the
statute, and the statute controls").
                                                                     8


145, 153 (2013).   See, e.g., Everett, 453 Mass. at 612

(determination that Superior Court lacked subject matter

jurisdiction required appellate court "to nullify an entire,

completed civil jury trial").   Whether a particular fact is

jurisdictional is primarily a question of Legislative intent.5

     The Legislature has unequivocally given the District Court,

as well as the Boston Municipal Court and the Probate and Family

Court, jurisdiction over this genre of case.    Section 3 of G. L.

c. 209A gives the "court" the power to hear cases in which a

person alleging to be suffering from "abuse" by a "family or

household member" -- as those terms are defined by G. L.

c. 209A, § 1 -- seeks protection from such abuse, and to grant

relief in the form of an abuse prevention order if the person

establishes those facts.   See C.O. v. M.M., 442 Mass. 648, 650

(2004).   "Included within the definition of 'family or household

members' are those individuals who are or have been engaged in a

'substantive dating or engagement relationship.'"    Id., quoting

G. L. c. 209A, § 1 (e).    The Legislature provided a flexible set

of factors for the "court"6 to determine the presence of a


     5 Accordingly, the United States Supreme Court requires a
clear statement of Congressional intent to rank a particular
provision as jurisdictional. See Sebelius, 568 U.S. at 153-154,
and cases cited therein. We have not developed an analogous
test for acts of our Legislature.

     6 Where, as here, the only "family or household member"
relationship asserted by the plaintiff is a "substantive dating
                                                                    9


substantive dating relationship, "anticipat[ing] that the

existence or absence of a 'substantive dating relationship'

would be determined on a case-by-case basis."    C.O. v. M.M., 442

Mass. at 652.

    "Abuse prevention order proceedings were intended by the

Legislature to be as expeditious and informal as reasonably

possible," Zullo v. Goguen, 423 Mass. 679, 681 (1996), with an

overriding focus on "the plaintiff's need for protection."     M.G.

v. G.A., 94 Mass. App. Ct. 139, 146 (2018).     The Massachusetts

Rules of Civil Procedure generally do not apply, see id. at 144-

146, and "the rules of evidence need not be followed," Frizado

v. Frizado, 420 Mass. 592, 597 (1995).    The Legislature surely

did not intend to impose a two-tier framework in which the

plaintiff must first prove jurisdictional facts before being

permitted to request relief from abuse.   Contrast, e.g., Abate

v. Fremont Inv. & Loan, 470 Mass. 821, 829-831 (2015)

(discussing procedural regime for establishing standing as

"first step" of try title actions); Caffyn v. Caffyn, 441 Mass.

487, 491-492 (2004) (discussing domicil requirement for subject

matter jurisdiction in no-fault divorce proceedings in context

of Mass. R. Dom. Rel. P. 12 [b] [1] motion to dismiss).



or engagement relationship," the complaint must be brought in
the "district, probate or Boston municipal courts"; where other
types of family relationships are asserted, the complaint may
also be brought in the Superior Court. G. L. c. 209A, § 1.
                                                                    10


    The defendant is correct that, in the circumstances of this

case, the plaintiff was required to establish the existence of a

substantive dating relationship to be entitled to relief, "but

he is incorrect that this predicate fact constitutes a subject

matter jurisdiction threshold."   Doe No. 3974, 457 Mass. at 57.

The elements that the plaintiff must establish to obtain relief

are not equivalent to the "nature" or "genre" of the case, which

determines subject matter jurisdiction.   See id. ("The 'nature

of the case' assigned to the board is distinguishable from the

elements of a prima facie case before the board").    Thus, while

the plaintiff has the burden "to establish facts justifying the

issuance and continuance of an abuse prevention order," Frizado,

420 Mass. at 596, a plaintiff's failure to establish a

substantive dating relationship at the ex parte hearing would

not deprive the court of jurisdiction.

    Conclusion.   Because proof of a substantive dating

relationship at the ex parte hearing does not determine subject

matter jurisdiction, and as the defendant has not otherwise

shown error in the September 15, 2017, extension of the abuse

prevention order, we affirm the September 15 order.   As "there

is no relief available to the defendant" from the issuance of

the September 6, 2017, ex parte order, C.R.S. v. J.M.S., 92

Mass. App. Ct. at 565, we dismiss the appeal from that order as

moot.
              11


So ordered.
