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I had a harassment prevention order issued against me; can I ask…

I had a harassment prevention order issued against me; can I ask the trial court to reconsider the decision at the same time that I appeal it?

12 September 2019

Answer: Maybe, as there is case law to support it, but it is safer to obtain leave from the appeals court that is handling the appeal to ensure that you don’t get tripped up by a trial court that may think otherwise.

The general rule is that once an appeal is perfected that the trial court is “divested of jurisdiction to act on motions to rehear or vacate [the order at issue].”  Commonwealth v. Cronk, 396 Mass. 194, 197 (1985).  This is the case for criminal cases.  Id.; Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 351-352 (2001).  As well as civil cases.  Springfield Redev. Authy. v. Garcia, 44 Mass. App. Ct. 432, 434-435 (1998).  The date of the change in jurisdiction in criminal cases occurs on the date the appeals court receives notice of assembly of the record or approval by the trial court of an agreed statement.  Commonwealth v. Montgomery, 53 Mass. App. Ct. 350, 353 fn. 6 (2001).  The date of the change for civil cases appears to the date the case is docketed in the appeals court.  Quinn v. Gjoni, 89 Mass. App. Ct. 408, 411 (2016).

However, it appears that there is an exception with respect to restraining orders issued under Mass. Gen. Laws. c. 209A and harassment prevention orders issued under Mass. Gen. Laws. c. 258E.  The thinking is based on each of these statutes’ provisions allowing trial courts to modify such orders.

In Braun v. Braun the appeals court rejected an argument that the trial court lacked jurisdiction once a appeal was pending to modify the order under appeal.  68 Mass. App. Ct. 846, 852 (2007).  The Braun court differentiated a modification and a direct challenge to the entirety of the order.  Id.at 853.  The Braun court did stress that under those circumstances, especially when part of the initial order and thus appeal may become moot, that the “suggested practice” is to seek approval from the appeals court in advance.  Id. at 853.  At a minimum, it implied that the parties should inform the appeals court of developments at the trial court that may impact the pending appeal.  Id. at 854.  This seems like common sense since the statutes allow modification and situations such as restraining orders and harassment prevention orders call for the need to change the orders that can happen quickly.

The appeals court seems to have taken this statutory power to modify a step further in Quinn v. Gjoni.  89 Mass. App. Ct. 408 (2016).  In Quinn, the plaintiff had sought and obtained an order vacating the original order issued in her favor while the appeal was pending.  Id. at 410.  Without delving into the difference between modification and vacation of an order as the Braun court did, it decided such power was vested in the trial court due to the statute’s provision allowing a trial court to modify its order “’at any subsequent time.’”  Id. at 411.  Although one may argue that it is a different, or unique, situation when the plaintiff herself seeks the order in her favor to be vacated, the Quinn court did not make any such distinction.  Thus, it seems that there is appellate level authority that the general rule does not apply to restraining orders and harassment prevention orders.  However, it is still “suggested practice” to obtain permission, such as leave, from the appeals court, and the author suggests it is wise to obtain leave also to ensure that there is no challenge to a trial court’s jurisdiction.

As shown, jurisdiction and appeals matters can be very complicated, and the issues can be intertwined.  In the event that you find yourself in a position of possibly having an appealable harassment protection order, feel free to give this office a call.