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13-P-204                                                 Appeals Court

                           M.B.   vs.   J.B.


                            No. 13-P-204.

      Worcester.        January 10, 2014.      -   August 7, 2014.

           Present:    Kantrowitz, Vuono, & Sullivan, JJ.


Abuse Prevention. Practice, Civil, Venue, Waiver.
     Jurisdiction, Probate Court. Waiver.



     Complaint for protection from abuse filed in the Worcester
Division of the Probate and Family Court Department on June 22,
2012.

     A motion to extend an abuse prevention order and a motion
to dismiss were heard by Denise L. Meagher, J.


    Lawrence F. Army, Jr. for the defendant.
    B.J. Krintzman for the plaintiff.


    SULLIVAN. J.      This is an appeal from an abuse prevention

order issued on an ex parte basis, and extended after notice and

a hearing by a judge of the Worcester Division of the Probate

and Family Court Department.      The defendant contends that the

Worcester Probate and Family Court lacked jurisdiction to enter
                                                                   2


the orders, and that the plaintiff failed to establish that she

was in reasonable fear of imminent serious physical harm.    We

affirm.

     1.   Background.   This case has a complex procedural history

which we set forth in some detail to provide context for the

issues raised on appeal.1

     The parties separated in August of 2011, and M.B. moved

from the marital home in Worcester County to a second home on

Cape Cod.   The divorce action was filed on November 9, 2011, in

the Worcester Probate and Family Court.   Beginning on November

11, and continuing until December 9, 2011, J.B., then age 53,

sent M.B. multiple electronic mail (e-mail) and text messages,

called M.B. repeatedly, had her cable and internet service cut

off, appropriated her bank password, took money out of her bank

account, took two of her cellular telephones, changed her

telephone service provider account password, and attempted to

access her telephone records.

     On December 9, 2011, the parties agreed to a stipulation in

the divorce case which included an order restricting all


     1
       The record includes affidavits, testimony, and documents
offered by M.B. in support of her June 22, 2012, application for
an ex parte abuse prevention order in the Worcester Probate and
Family Court, and the July 6 evidentiary hearing held in
connection with the extension of that order. The facts set
forth here are drawn from that record unless otherwise
specified.
                                                                     3


communication except e-mail related to visitation of their

teenage son.   The probate judge entered the stipulation as a

temporary order.    However, J.B. continued to text and call M.B.2

The judge orally ordered him to cease contact in February of

2012, and issued a written order on March 19, 2012.     J.B.

continued to contact M.B.    M.B. filed an application for an

abuse prevention order on May 10, 2012 in the Worcester Probate

and Family Court.    On May 14, 2012, the judge again issued a no

contact order and imposed monetary sanctions of $500 for each

contact in violation of the no contact order.

     On May 21, 2012, the probate judge heard evidence on M.B.'s

complaint for contempt, and began to hear evidence on the

application for an abuse prevention order.    At the conclusion of

the court day, and after ascertaining that the no contact order

had not been violated between May 10 and May 21, the probate

judge continued the evidentiary hearing on the abuse prevention

order. She stated that the order would not be issued at that

time, and that a further hearing would be scheduled.3    She


     2
       M.B. described these communications as angry, accusatory,
and degrading. A police report stated that J.B., posing as
"Charles," contacted the superintendent of schools and the chair
of the school committee (of the municipality where M.B. was
employed) and made accusations of wrongdoing. The school
department issued a no trespass order against J.B. on December
20, 2011.
     3
       For reasons unclear on the record, the hearing was
rescheduled to August 30, 2012. The first request for an abuse
                                                                    4


emphasized that the no contact order remained in full force and

effect.

     Between May 30 and June 20, 2012, M.B. received more than

forty text messages.   Several came directly from J.B.'s

telephone number, while others came from unknown telephone

numbers.   J.B.'s bank statement showed that J.B. had purchased a

"Spoof" card with his credit card in November of 2011.     M.B.

testified that the Spoof card made the text messages appear to

come from another telephone, and that based on their content,

she believed they came from J.B.   The content of the texts

permitted the inference that they came from J.B., and also

indicated that he was following and watching her.4    Between May

10 and June 19, M.B. also received approximately thirty

telephone calls from an unknown or private number.5



prevention order in Worcester was not treated as an emergency
motion and there was no objection to the continuance on the
record.
     4
       For example, the text received on May 30, 2012, said, "Oh,
you're eating pizza and having a beer while I have to pay for a
lawyer." This text was received while M.B. was eating pizza.
On June 8, 2012, M.B. received a text calling her a "groupie"
while listening to a band. On June 10, 2012 she received a text
about the sunset while watching the sun set. While attending
her son's graduation with a female friend on June 3, 2012,
M.B.'s friend received a text that said "Is there any peroxide
left in this state? You're hanging out with an adulterer.
Great legacy for the two of you."
     5
       J.B. contends that the evidence regarding the Spoof card,
the messages that appeared on the friend's telephone, and the
texts and telephone calls from unknown sources should not have
been admitted because the evidence was speculative and
                                                                   5


    M.B. then filed a new application for an abuse prevention

order in the Falmouth District Court on June 13, 2012.   An ex

parte order issued.   Later that day, M.B. brought her car to be

inspected, and a global positioning system (GPS) tracking device

was found on the underside of her car.   M.B. promptly reported

this to the police, who initiated an investigation.   Meanwhile,

the ex parte restraining order expired on June 22, 2012.   A

judge of the Falmouth District Court held a hearing on that date

at which M.B. appeared pro se.   J.B. appeared through counsel,

who filed a motion to dismiss on the grounds of res judicata,

stating that the judge of the Worcester Probate and Family Court

had denied a request for a restraining order on May 21, 2012,

that judgment had entered, and that the affidavit in support of

the June 13 application referenced events which had been before

the probate judge in Worcester in May.   Although the affidavit

filed by M.B. in the Falmouth District Court in support of the

application for an abuse prevention order did reference events

occurring in April, it also described, among other things, the

numerous text messages she received between June 8 and June 12,


inadmissible under the rules of evidence. In G. L. c. 209A
proceedings, strict compliance with certain common-law rules of
evidence, such as those asserted here, is not required,
"provided that there is fairness in what evidence is admitted
and relied on." Frizado v. Frizado, 420 Mass. 592, 597-598
(1995). See Mass. G. Evid. § 1106 (2014). We discern no abuse
of discretion in the judge's conclusion that the evidence
offered was sufficiently reliable to warrant admission.
                                                                    6


messages that strongly suggested M.B. was being followed.    She

attached a timeline to the affidavit detailing the date, source,

and content of scores of text messages and calls from J.B.'s

telephone number and other telephone numbers between May 26 and

June 12, 2012.    She stated, "[J.B.] uses the Spoof [card] to

terrorize me," and that "he appears to be escalating and I am

afraid."

     At the hearing on June 22, 2012, in Falmouth, J.B.'s

counsel further represented to the court that there had been a

full evidentiary hearing before the Worcester Probate and Family

Court judge and that the current application was an example of

forum shopping.   He did not inform the judge, either orally or

in writing, of the existence of the no contact order.    In fact,

the evidentiary hearing in Worcester had been continued, the no

contact order was extant, and the application for an abuse

prevention order remained pending.6   M.B. told the judge that the

evidentiary hearing in Worcester had been continued, and that

she was relying on events that occurred after May 21, 2012.7     She


     6
       At a subsequent hearing in Worcester on July 6, 2012, the
probate judge stated that she had not dismissed the previous
application for an abuse prevention order, and that the matter
had been held for further evidentiary hearing on August 30,
2012. There was no action entered on the docket. No judgment
was entered on the docket.
     7
       M.B., appearing pro se, told the judge that the order had
not entered in Worcester on May 21, 2012, because there had been
no violations for a ten day period, but that since that time
                                                                   7


stated she was "petrified and didn't know what to do."     The

judge allowed J.B.'s motion, and sua sponte ordered the

plaintiff to return to Worcester, stating, "You should go back

to the Worcester Court and have - - bring that all up up there."

The temporary order was then vacated.    The Falmouth District

Court docket stated, "Prior 209A order denied in Worcester

Probate and Family Court."

     M.B. drove to Worcester that afternoon where she again

sought a 209A order.    A temporary abuse prevention order was

allowed on an ex parte basis by the same probate judge who heard

the divorce action.    On June 25, 2012, after the order was

issued, J.B. came to M.B.'s house and M.B.'s friend received a

text message stating, "Chubby's going to be in the newspaper."

M.B. understood this statement to be a threat directed at her.8

     On July 6, 2012, an evidentiary hearing was held in

Worcester on the extension of the ex parte order at which J.B.

appeared through counsel.9    J.B. moved to dismiss the application

for an abuse prevention order pursuant to Mass.R.Dom.Rel.



J.B. repeatedly had sent her text messages, and that she had
discovered a GPS device placed on her car. M.B. also attempted
to tell the judge about the evidentiary hearing in Worcester,
but the Falmouth hearing was abruptly terminated.
     8
         J.B. called M.B. "Chubby."
     9
       J.B. was incarcerated for an alleged violation of the
temporary restraining order at the time of the hearing.
                                                                          8


12(b)(3) on the grounds that the Worcester Probate and Family

Court lacked jurisdiction over the application because M.B. was

a resident of Barnstable County, and the matter had to be heard

there.      See G. L. c. 209A, § 2.     The probate judge who heard the

divorce and the ex parte motion denied J.B.'s motion and

extended the temporary abuse prevention order for a period of

one year.

       2.   Discussion.   A.   Venue.   While the propriety of the

ruling of the probate judge, not the District Court judge, is

before us, we take this opportunity to clarify the application

of the choice of venue provisions of G. L. c. 209A, § 2, with

respect to both the Probate and Family and District Court

departments of the trial court.

       General Laws c. 209A, § 2, provides a choice of venue to

the plaintiff, who may bring an application in the court of the

county of her current residence, or if he or she has left a

previous residence or household to avoid abuse, in the court

having venue over the previous residence or household.10        The


10
     General Laws c. 209A, § 2 provides:

     "Proceedings under this chapter shall be filed, heard and
determined in the superior court department or the Boston
municipal court department or respective divisions of the
probate and family or district court departments having venue
over the plaintiff's residence. If the plaintiff has left a
residence or household to avoid abuse, such plaintiff shall have
the option of commencing an action in the court having venue
over such prior residence or household, or in the court having
                                                                     9


purpose of the venue provision of the statute, which is intended

to facilitate a plaintiff's application for an order, and to

encourage the prompt and timely resolution of the application,

was derailed in this case.

     M.B. applied for a restraining order in the Worcester

Probate and Family Court, where she had previously resided.        For

reasons not apparent in the record, the case was continued for

over three months.   See Singh v. Capuano, 468 Mass. 328 (2014);

Guidelines for Judicial Practice:    Abuse Prevention Proceedings

§ 5:00 (2011) (Guidelines) (emphasizing the importance of prompt

hearings in c. 209A cases).    After the situation escalated in

late May, she filed an application for a new abuse prevention

order in the county in which she resided, Barnstable County,

which was then allowed.11    The District Court judge declined to

hear the extension motion, and vacated the temporary order, in

violation of c. 209A, § 2, which granted M.B. her choice of

venue, and in violation of G. L. c. 209A, § 4, which granted her

an evidentiary hearing.     See Guideline 2:07 (commentary) ("If

the court in which a person initially seeks protection under


venue over the present residence or household." (Emphasis
added).
     11
        Because the June 13, 2012, application in Falmouth was
based on new conduct, it may properly be considered a new
application. For this reason, we do not address the questions
raised when a plaintiff files the same application in two
courts.
                                                                  10


c. 209A has jurisdiction, the person should be heard as soon as

possible in that court, and should not be sent to another

court").   See also Singh v. Capuano, supra (without first

hearing the evidence, a judge should not, over objection, vacate

any provision of a c. 209A order once issued); S.T. v. E.M., 80

Mass. App. Ct. 423, 430 (2011).12   After M.B. returned to

Worcester as directed, sua sponte, by the District Court judge

in Falmouth, the defendant moved to dismiss, claiming that

Worcester lacked jurisdiction and that only the courts of

Barnstable County had the authority to hear the case.


     12
       Among the many reasons the Guidelines prohibit transfers
is that a transfer may "discourage the plaintiff from seeking
relief to which he or she is entitled under the law, and may
expose the person to additional danger. This is especially so
where the other court is at some distance and may be
inaccessible to the plaintiff." Guideline § 2:07. Guideline
2:07 also cautions against the issuance of conflicting orders.
In this respect, J.B.'s counsel's mischaracterization of the
actions of the probate judge and the selective characterization
of the plaintiff's application is of particular concern.
However, as guideline 2:07 makes clear, the potential for
conflicting orders is not a basis for transferring the matter,
or for vacating an extant order without evidentiary hearing or
an opportunity to be heard. See Singh v. Capuano, 468 Mass. 328
(2014); S.T. v. E.M., 80 Mass. App. Ct. 423, 430 (2011).
Rather, the judge is directed to obtain a copy of the prior
order. Had the Guidelines been followed here, it would have
become obvious that the judge of the Probate Court had not
issued a final order or judgment on the pending application,
there being no such order of judgment on the docket. Moreover,
the papers on file and the plaintiff's pro se argument were
sufficiently clear to place the District Court judge in Falmouth
on notice that the plaintiff was alleging new and serious
violations over and above those previously alleged before the
probate judge.
                                                                  11


     J.B. contends that G. L. c. 209A, § 2, barred the probate

judge from hearing M.B.'s application because M.B. failed to

establish that she left her residence in Worcester County to

avoid abuse.   This issue was presented below as a matter of

venue or territorial jurisdiction.    On appeal, J.B. further

refines this argument, claiming that a court that lacks

territorial jurisdiction is without any authority to enter an

abuse prevention order.   In support of this contention, J.B.

relies on Guideline 3:03, which states that "[t]he requirements

set forth in G. L. c. 209A, § 2, regarding where abuse

prevention actions must be filed and heard should be considered

jurisdictional.   That is, if these requirements are not met, the

court should be considered to have no authority to act on the

complaint."    The comments to the Guideline further state that

because the venue requirements of § 2 "appear to be

prerequisites to the court's authority to act, they should be

considered jurisdictional," and that the defect is one that

cannot be waived.13


     13
       Notwithstanding the broad language of Guideline 3:03,
Guideline 1.09 provides a cohesive framework for dealing with
applications to a court which lacks venue. Guideline 1:09
incorporates a standing order of the Chief Administrative
Justice pursuant to her statutory powers to transfer cases
between judicial departments. See G. L. c. 211B, § 9 (xix)
(2011). If a plaintiff makes application to a court lacking
venue, and the judge determines that safety would be compromised
by a transfer to the court having venue, "the judge may act for
the appropriate court and conduct a hearing on the plaintiff's
                                                                    12


    J.B. contends that the abuse prevention order is therefore

"void" and likens territorial jurisdiction or venue under

c. 209A, § 2, to subject matter jurisdiction.   The obvious

strategic advantage of this argument is that subject matter

jurisdiction may be raised at any time and may not be waived.

See Doe, Sex Offender Registry Bd. No. 3974 v. Sex Offender

Registry Bd., 457 Mass. 53, 57 (2010).   However, once a broad

grant of jurisdiction is given to a court to hear a class of

cases, the court has subject matter jurisdiction.    Ibid.    Since

it is clear that the Legislature has "empowered the [Probate and

Family Court] to hear [this] particular 'genre' of cases," the

Probate and Family Court had subject matter jurisdiction over

the application for an order.   Ibid. (citations omitted).    See

G. L. c. 209A, §§ 1(c), 2; Champagne v. Champagne, 429 Mass.

324, 327 (1999); Guideline 3.02 (Jurisdiction) (2011).

    Any jurisdictional limitations imposed by G. L. c. 209A,

§ 2, are those of territorial jurisdiction only.    In this



request." Ibid. The "primary issue for the court . . . is to
ensure the safety of the plaintiff." Ibid. The Guidelines
offer two options where venue is improper to transfer the case,
after determining the safety of the plaintiff will not suffer
and he or she has transportation to the receiving court, or hear
it. An order may not be denied or vacated over objection
without an evidentiary hearing or an opportunity to be heard.
To do so subverts the purposes of the statute, that is to
promote the safety of those who seek abuse prevention orders.
Singh v. Capuano, supra, at 332, citing S.T. v. E.M., supra, at
429-430.
                                                                  13


context, territorial jurisdiction is a matter of venue.   See

Paige v. Sinclair, 237 Mass. 482, 484 (1921); Blood v. Lea, 403

Mass. 430, 435 (1988).   Cf. Commonwealth v. Mannos, 311 Mass.

94, 103 (1942); Opinions of the Justices, 372 Mass. 883, 896–897

(1977).   Section 2 is, in fact, entitled "Venue."   See Tyler v.

Michael's Stores, Inc., 464 Mass. 492 (2013) (construing a

statute in harmony with its title).   Compare ROPT Ltd.

Partnership v. Katin, 431 Mass. 601, 605 n.10 (2000) (statute

which expressly uses the word "jurisdiction" is not a venue

statute).   Unlike a lack of subject matter jurisdiction, a

defect in venue does not irrevocably strip a court of all

authority to hear a case.   Paige v. Sinclair, supra ("A plea

that the action is brought in the wrong county or wrong district

is commonly matter of abatement and does not go to the

jurisdiction of the court").

    Venue may be waived if not timely raised.    Hazard v. Wason,

152 Mass. 268 (1890); Paige v. Sinclair, supra; Carpenter v.

Pomerantz, 36 Mass. App. Ct. 627, 628 n.2 (1994); Buccaneer

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

40, 45 (2012), quoting from Wachovia Bank, Natl. Assn. v.

Schmidt, 546 U.S. 303, 316 (2006) ("Venue is largely a matter of

the parties' convenience; venue and subject matter jurisdiction
                                                                  14


. . . 'are not concepts of the same order'").14   Cf. Commonwealth

v. Robinson, 48 Mass. App. Ct. 329, 336 (1999).   To the extent

the comment to Guideline 3:03 regarding waiver suggests

otherwise, the commentary is inconsistent with the statute, and

the statute controls.   See generally Morales v. Morales, 464

Mass. 507 (2013) (discussing inconsistency between Child Support

Guidelines and the governing statute).

     The defendant waived his objection to venue in the

Worcester Probate and Family Court by his conduct.   Cf. American

Intl. Ins. Co. v. Seuffer GmbH & Co., 468 Mass. 109, 113-120

(2014) (defense of personal jurisdiction may be waived by

conduct).   He did so by participating in the May 21, 2012,


     14
       We recognize that at one point in time the territorial
jurisdiction of the Probate and Family Court was considered
truly jurisdictional. See Holt v. Holt, 253 Mass. 411, 414-415
(1925), citing St. 1922, c. 532, § 60 and G. L. c. 215, § 1
(1902). At the time Holt was decided, the Probate court had
"county and not statewide jurisdiction[,] . . . [an] outgrowth[]
of the old Ecclesiastical Courts." Badger, The Probate Courts,
Boston B.J. No. 5 (1961). The approach in Holt appears to have
been dictated by the Supreme Judicial Court's conclusion that no
authority existed for the reassignment of a case from one
Probate Court to another. The "provincial nature" of this
system prompted calls "to refashion the present fourteen
separate Probate Courts with their twenty four judges into one
statewide court with a Chief Justice." Badger, supra. Since
Holt, there have been a series of amendments to the governing
statutes, culminating in the creation of a statewide Probate and
Family Court within the trial court department. See, e.g.,
G. L. c. 217, § 8, as amended by St. 1963, c. 819, § 3; G. L.
c. 217, § 1, as amended by St. 1978, c. 478, § 128. The
reasoning in Holt no longer applies, as the defect addressed in
Holt has been superseded by legislative enactment.
                                                                   15


evidentiary hearing on the application for an abuse prevention

order without objection.15   See generally Hazard v. Wason, 152,

268 (1890) (venue waived where defendant answers to the merits);

Paige v. Sinclair, 237 Mass. 482, 484.   Cf. American Intl. Ins.

Co., supra (defense forfeited by active participation in

litigation); LaMarche v. Lussier, 65 Mass. App. Ct. 887, 889-890

(2006) (personal jurisdiction may be waived by "dilatoriness and

participation in or encouragement of judicial proceedings").     He

then affirmatively relied on the Worcester proceedings to vacate

the Falmouth District Court temporary abuse prevention order.

By seeking to take advantage of the Worcester proceedings in the

Falmouth case, J.B. "manifest[ed] an intent to submit to the

[Worcester Probate and Family] court's jurisdiction," and

forfeited any claim to lack of venue there.   Yeldell v. Tutt,

913 F.2d 533, 539 (8th Cir., 1990), cited with approval in

American International Ins. Co., supra (quotation omitted).16


     15
       M.B.'s June 22, 2012, application for a temporary order
was docketed as a new application, but this fact is not
dispositive of the waiver analysis which looks to the conduct of
the defendant. Here, the defendant's arguments in Falmouth
precipitated the multiple filings. He participated in the prior
proceedings in Worcester and attempted to leverage the Worcester
proceedings for his benefit.
     16
       M.B. argues that J.B.'s conduct at the hearings also
precludes him from challenging venue on the grounds of judicial
estoppel. See Niles-Robinson v. Brigham & Women's Hospital,
Inc., 47 Mass. App. Ct. 203 (1999). In light of our
disposition, we need not address this issue.
                                                                     16


    Finally, even if venue had been raised, the evidence before

the judge was sufficient to permit the inference that M.B. had

left the parties' home in Worcester county and moved to

Barnstable County to avoid abuse.    There was evidence in the

record before the probate judge that    before M.B.'s move to

Barnstable County, J.B. had anger management issues, possessed

an FID card, had been violent, and had "been physical" prior to

their separation.    The judge did not err in hearing the

application.

    B.   Sufficiency.    A plaintiff seeking the extension of an

abuse protection order must prove "by a preponderance of the

evidence[] that the defendant has caused or attempted to cause

physical harm, committed a sexual assault, or placed the

plaintiff in fear of imminent serious physical harm."       McDonald

v. Caruso, 467 Mass. 382, 386 (2014).    See Iamele v. Asselin,

444 Mass. 734, 736 (2005); G. L. c. 209A, §§ 1, 3.     As is often

the case, this appeal focuses on whether the plaintiff had a

reasonable fear of imminent serious physical harm.     G. L.

c. 209A, § 1(b).    Iamele v. Asselin, supra.17   J.B. contends that

the application "was not based upon any physical harm committed

or threatened by [him]," and that in the absence of testimony

    17
       Neither party has argued, and we do not address, whether
the order would have been warranted under c. 209A, § 1(a), based
on a prior history of abuse. Compare Callahan v. Callahan, 85
Mass. App. Ct. 369 (2014).
                                                                      17


that he hurt or threatened M.B. after their separation, in the

six months prior to the extension hearing on July 6, 2012, the

evidence is insufficient to establish that harm was serious or

imminent.

    This argument conflates the first prong of the statutory

definition of abuse, actual or threatened abuse, with the

second, reasonable fear of imminent serious bodily harm.        See

G. L. c. 209A, § 1(a, b).    The purpose of a c. 209A order is to

protect a plaintiff from the likelihood of abuse.     Iamele v.

Asselin, supra, at 739.    A plaintiff need not wait until an

assault occurs to seek protection, although "[i]f the plaintiff

were suffering from attempted or actual physical abuse, see

G. L. c. 209A, § 1(a), . . . there is no question that an

extension should be granted."    Id. at 740 n.3.

    As noted above, M.B. provided affidavits stating that J.B.

had "anger management issues," and that there had been "a past

history of violence."     She also testified that he had been

"physical" with her prior to their separation.     In light of "the

totality of the circumstances," id. at 740, that is, a past

history of anger and violence, coupled with the conduct which

followed the filing of the divorce petition, and the ongoing

escalation of contact in violation of the no contact orders, the

evidence was plainly sufficient to support the issuance of the
                                                                18


abuse prevention order.   See Vittone v. Clairmont, 64 Mass. App.

Ct. 479, 485 (2005).

                                   Judgment affirmed.
