Supreme Judicial Court (January 17, 2008)
A Massachusetts Court may issue a domestic abuse prevention order against someone who lives outside the state. However, the Court may not impose affirmative obligations on a nonresident, unless there is personal jurisdiction.
In this case, the plaintiff and defendant originally met in Massachusetts and lived together until they moved to Florida in 2002, where they subsequently had a child. The plaintiff occasionally visited Massachusetts with the child but the defendant never returned. After a few abusive incidents in Florida, the plaintiff fled with the child to Massachusetts. The defendant telephoned the plaintiff's father's house in Massachusetts, telephoned his friends in Massachusetts, and called the plaintiff's cell phone five or six times each day in an effort to locate the plaintiff and child. The plaintiff successfully obtained an abuse prevention order following an ex parte hearing. The order directed the defendant not to abuse the plaintiff, not to contact the plaintiff, and not to come within fifty yards of the plaintiff's residence in Massachusetts. It also awarded custody of the child to the plaintiff and ordered the defendant not to contact the child. In addition, the defendant was ordered to surrender his firearms to local police in Florida, and was ordered to compensate the plaintiff monetarily.
At the subsequent extension hearing date, the defendant was not present, but his counsel was. Defendant's counsel moved to vacate the abuse prevention order for lack of personal jurisdiction. The Court denied the defendant's motion and he appealed. The SJC granted the plaintiff's application for direct appellate review.
The SJC held that while the District Court lacked personal jurisdiction over the defendant, it is not required for the Court to issue an abuse prevention order as long as there is notice and an opportunity to be heard. Since Massachusetts courts have jurisdiction over matters relating to marriage and custody for people who live within its borders even if there is no personal jurisdiction over the nonresident defendant, then likewise a court order protecting a plaintiff from abuse serves an analogous role and furthers the Commonwealth's important public policy goal of securing "the fundamental human right to be protected from the devastating impact of family violence . . . . [I]f a court may constitutionally make orders affecting marriage, custody, and parental rights without personal jurisdiction of a defendant, it certainly should be able to do what the court did here - - enter an order protecting a resident . . .from abuse."
Therefore, the following portions of the order are proper: requiring the defendant not to abuse the plaintiff, not to contact the plaintiff, to stay away from the plaintiff and the plaintiff's residence, granting custody of the child to the plaintiff and ordering the defendant not to contact and to stay away from the child. However, the conditions that place affirmative obligations on the defendant (i.e., that portion of the order that requires the defendant to surrender his firearms and to compensate the plaintiff monetarily) are invalid without personal jurisdiction over the defendant.
NOTE: Personal jurisdiction over a person exists if he/she causes tortious injury in the Commonwealth by an act or omission outside the Commonwealth. The court noted that if the telephone calls from the defendant to the plaintiff contained threatening or harassing statements, this could give rise to personal jurisdiction over a nonresident. In this case, the record did not reveal the content of the phone calls.