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In a recent slip opinion decision by the Massachusetts Appeals Court in the case of M.B. vs. J.B., No. 13-P-204, the appeals court clarified the venue provisions of M.G.L. c. 209A from an application for abuse prevention made initially in the Worcester Probate and Family Court and subsequently in the Falmouth District Court in Barnstable County.
The application for the order arose out of a divorce action in Worcester County in which the Wife left the marital residence in Worcester County to reside in Barnstable County. In the context of their Divorce, the parties through counsel entered a stipulation with the court restricting all of their communication with each other with the exception of written, email communications regarding the parenting of their children.
Subsequent to the entry of the stipulation as a temporary order in the divorce, the Husband continued to attempt communication with the Wife beyond the limitations of the court order. The Wife applied for a restraining order in the Worcester Probate Court in which the divorce action was pending. The court held a hearing on the application but did not issue an order but instead issued a further order in the divorce imposing monetary sanctions on the husband for every text message or other communication exceeding the court's no contact order and scheduled a further hearing for whether or not an abuse prevention order should issue.
At the subsequent hearing, the court determined the temporary order had been violated but continued the evidentiary hearing on the restraining order without issuing any further order and stating to the parties that "no order would issue at this time" but that the parties no contact order in the divorce would continue in full force and effect.
Three months after this hearing, the Wife continued to receive communications from the Husband which violated the provisions of the no contact order. With the application still open in Worcester and un-acted upon, ( “no order would issue at this time”), the Wife appeared in the Falmouth District Court, ( in the county of her new residence ) and applied for a restraining order and an ex-parte order issued from the Falmouth District Court.
At the re-hearing of the ex-parte order, the Husband appeared with counsel and advanced a motion to dismiss the order and the complaint on the grounds that the matter was already decided in the Worcester Probate Court when the court did not issue an order based on the same or similar allegations as to the current complaint.
The Falmouth District Court dismissed the Wife's complaint and sua sponte, directed her to return to the Worcester Probate and Family Court.
The Wife did. The Worcester Probate and Family Court issued an order that same day. The Husband then appeared with counsel at the re-hearing of the order and moved that the Worcester Court dismiss the complaint on the grounds of improper venue and jurisdiction, pursuant to Mass.R.Dom.Rel. 12(b)(3) on the grounds that the Wife was a resident of Barnstable County and the matter should be heard there.
The Judge hearing this motion denied it and entered a one year order for the Wife.
M.G.L. c. 209A, section 2 provides a choice of venue to the party seeking an order to enjoin abuse under the chapter: in the county of their residence or the county in which they may have traveled to and reside in to avoid abuse.
The Wife first applied for an abuse prevention order in the county which she formerly resided in, (Worcester County). The complaint was not acted on initially by the court until three months after the initial application - in part to the instruction the Wife followed from the Barnstable District Court which referred her back to the Worcester where a prior complaint remained open. The second application the Wife made was made in the county she removed to, to avoid abuse, (Barnstable County). The Appeals Court held that the Wife could properly seek relief in either county, and that the second application she made in Barnstable County was improperly dismissed there. The appeals court further found that under Singh v. Capuano, 468 Mass. 328 (2014) that the court should always have a speedy re-hearing of the initial complaint or order and that the process was derailed initially by the Judge who did not make an order on the Worcester application and the Judge who dismissed the action in Barnstable.
The Husband argued that the Wife, in her initial application in Worcester County, did not establish that she had left Worcester County to avoid abuse and therefore, jurisdiction in Worcester, under section 2 had not been met and the court could not enter an order. The Appeals court clarified the burden of proof on this assertion was the Husband's at the initial hearing in Worcester: any objection to improper venue is the Defendant’s to make at the initial hearing, or it is otherwise waived - the court also noted that the Defendant, who was playing both ends against a middle, had relied upon the orders of the Worcester Court to dismiss the Barnstable County action.
The Appeals Court also clarified that the Probate Court had subject matter jurisdiction over the complaint and that "venue" under M.G.L. c. 209A, section 2 is "territorial" and therefore one of venue and if not timely objected to, the objection is deemed waived and does not strip the court of the authority to hear the case and issue orders. The Court further held that it was the Husband's failure to object to venue at the first Worcester hearing and his participation in that hearing which waived any venue objections and left the Worcester court with the proper jurisdiction to hear the matter and issue orders.
For the practitioner, this decision clarifies the venue provisions of the statute: the applicant has a choice where to bring the application. The petitioner does not have a burden of proof relative to his/her choice of venue if not brought in their county of residence. If venue is not objected to by the Defendant at the initial appearance of the Defendant, objections to venue are waived and no inquiry will occur as to whether or not the petitioner filed outside of his/her county of residence to avoid abuse.