No. 15–P–1142 No. 15–P–1278.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In these companion cases, Alice Finn challenges the denial of motions for relief from judgment pursuant to Mass.R.Civ.P. 60(b)(6), 365 Mass. 828 (1974), pertaining to two harassment prevention orders issued under G.L. c. 258E, § 3. In 15–P1142, Finn challenges a Boston Municipal Court judge's termination of an order she obtained against Amanda Flaherty. In 15–P–1278, Finn challenges the extension of an order obtained by Flaherty against Finn.
Flaherty did not submit an appellate brief in either of the two cases.
Background. The harassment prevention orders arose from a dispute between the parties, who are next-door neighbors, regarding Flaherty's German Shepherd. On November 3, 2014, Flaherty obtained an ex parte restraining order against Finn. In the interim, Finn sought a harassment prevention order against Flaherty, and the two cases were heard together on November 20, 2014. Both parties appeared, Finn represented by counsel and Flaherty appearing pro se. Finn presented two witnesses and testified on her own behalf. The judge (first judge) extended Flaherty's order against Finn, and granted Finn's order against Flaherty, both for one year.
In her affidavit in support of her harassment prevention order, Finn alleged that Flaherty had on several occasions commanded her dog to jump up on the fence separating the two properties, growl, and bare his teeth at Finn. Flaherty's affidavit in support of her harassment prevention order alleged that Finn sprayed her with a garden hose while she was taking out the trash, stared at Flaherty and her family while laughing in a threatening manner, photographed Flaherty, her husband, and their dog, and called animal control authorities making false claims about the dog.
Flaherty immediately filed a “motion to terminate” the order against her. This motion was based on Flaherty's claim that the order issued against her was not supported by sufficient evidence and should not have been issued. A hearing on that motion was held December 3, 2014, in front of a different judge (second judge). A transcript of that hearing is part of the record on appeal. Finn objected to the hearing on grounds that she had previously obtained an order and because she did not have witnesses with her. The second judge, like the first judge, patiently and fairly conducted the hearing so as to give the parties a full and fair opportunity to present evidence and question the witnesses and each other. Both parties appeared, this time Flaherty represented by counsel and Finn appearing pro se. Flaherty presented three witnesses. The second judge granted the motion to terminate the order against Flaherty on the ground that Finn had not established three incidents of harassment as required by the statute. On December 15, 2014, Finn filed a motion pursuant to Mass.R.Civ.P. 60(b)(6) to vacate the order of termination. It was denied on January 6, 2015. At some point, Finn filed a separate rule 60(b)(6) “motion to reconsider” the extension of Flaherty's order against her, which was denied on February 17, 2015. Finn appeals the denial of both rule 60(b)(6) motions.
In relevant part, G.L. c. 258E, § 1, inserted by St.2010, § 23, defines “harassment” as “3 or more acts of willful and malicious conduct aimed at a specific person committed 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.”
This motion is not included in its entirety in the record on appeal. Neither has Finn included a copy of the transcript of the hearing held on that motion.
Discussion. a. Case no.15–P–1142. Flaherty did not file a notice of appeal and pursue appellate remedies following the first judge's decision on November 20, 2014, to issue a G.L. c. 258E order against her. In MacDonald v. Caruso, 467 Mass. 382, 387–388 (2014), the Supreme Judicial Court explained that a rule 60(b)(5) motion cannot take the place of a direct appeal of a final equitable order. The court made a clear distinction between a permissible motion to terminate an equitable order based on changed circumstances, and an impermissible motion to vacate an order on grounds that it should not have issued in the first place. “A defendant's motion to terminate an order is not a motion to reconsider the entry of a final order, and does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal. Therefore, a defendant bringing such a motion bears the burden of proving a significant change in circumstances since the entry of the order that justifies termination of the order.” Id. at 388 (citations omitted).
MacDonald, supra, involved Mass.R.Dom.Rel.P. 60, which is identical to Mass.R.Civ.P. 60. Subsection (b)(5) allows a court to grant relief when “the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.”
Accordingly, when Flaherty moved to terminate the order, which led to the hearing on December 3, 2014, the second judge was not authorized to revisit the basis for the decision by the first judge to issue the November 20 order. Therefore, the order issued by the second judge terminating Finn's c. 258E order must be vacated. This makes it unnecessary for us to further consider whether Finn's subsequent rule 60(b)(6) motion was an appropriate way for her to challenge the relief obtained by Flaherty.
b. Case no. 15–P–1278. “A motion for relief under rule 60(b) is directed to the sound discretion of the motion judge.” Nortek, Inc. v. Liberty Mut. Ins. Co., 65 Mass.App.Ct. 764, 775 (2006). Rule 60(b)(6) is not, however, a substitute for direct appeal, and has “extremely meagre scope.” Charles Choate Memorial Hosp. v. Commissioner of Pub. Welfare, 13 Mass.App.Ct. 1080, 1081 (1982), quoting from Rinieri v. News Syndicate Co., 385 F.2d 818, 822 (2d Cir.1967). At a hearing to extend a protective order, a judge's discretion is broad. She may permit the existing order to expire without renewal; she may issue a permanent order; or she may issue an order of shorter duration of “any additional time reasonably necessary to protect the plaintiff.” G.L. c. 258E, § 3(d), inserted by St.2010, c. 23. See Crenshaw v. Macklin, 430 Mass. 633, 635 (2000) (interpreting analogous provisions of G.L. c. 209A, § 3 ).
After hearing, the second judge extended Flaherty's order against Finn, concluding that Finn's actions against Flaherty met the legal standard for harassment under G.L. c. 258E. Through her rule 60(b)(6) motion, Finn argued that this legal conclusion was incorrect. Nevertheless, because Finn did not appeal the decision by the second judge to extend Flaherty's order, there is no basis for us to review the judge's application of the law to the facts in this instance. Where a party reasonably could have sought the same relief by means of a direct appeal, it is generally improper to grant relief under rule 60(b)(6). See Bromfield v. Commonwealth, 400 Mass. 254, 257 (1987). In lieu of a direct appeal, Finn attempts to use the vehicle of rule 60(b)(6) to argue issues beyond the scope of relief available under that rule. See MacDonald v. Caruso, 467 Mass. at 388.
Conclusion. The harassment prevention orders in these cases are no longer in effect. Nonetheless, the records below should reflect the following: In case no. 15–P–1142, the order dated December 3, 2014, terminating the G.L. c. 258E order dated November 20, 2014, is vacated. In case no. 15–P–1278, the judgment is affirmed.