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15-P-1607                                            Appeals Court

                         J.S.H.   vs.   J.S.


                           No. 15-P-1607.

       Middlesex.       December 14, 2016. - March 1, 2017.

             Present:    Meade, Henry, & Lemire, JJ.


Civil Harassment. Harassment Prevention.       Protective Order.
     Fraud. Practice, Civil, Fraud.



     Complaint for protection from harassment filed in the
Concord Division of the District Court Department on March 14,
2014.

     A motion to expunge a harassment prevention order issued
pursuant to G. L. c. 258E was heard by David E Frank, J.


    Dana Alan Curhan for the defendant.
    J. Daniel Silverman for the plaintiff.


    LEMIRE, J.   The defendant appeals from the denial of a

motion to expunge a G. L. c. 258E harassment prevention order.

The defendant claims that the c. 258E order was improperly

issued and obtained through fraud on the court.     We hold that,

as in the context of G. L. c. 209A, expungement of a c. 258E
                                                                   2


order is available only in the rare and limited circumstance

where it was obtained through fraud on the court, and that the

judge did not err in concluding the defendant failed to satisfy

that standard.

     Background.    The c. 258E order arose from a dispute between

the plaintiff, the founding president and executive director of

a religious-based nonprofit organization that runs a support

group for women exposed to domestic violence, and the defendant,

the husband of one of the women the plaintiff was counseling.

On March 14, 2014, the plaintiff filed against the defendant a

complaint for protection from harassment pursuant to c. 258E,

which included a supporting affidavit.1    In her affidavit, the


     1
         The plaintiff's affidavit stated the following:

          "On or about Feb. 27, 2014, the Defendant wrote a
     letter to a member of the board of . . . []The Domestic
     Violence organization in which I serve as President[]
     discrediting . . . [it] and asking their help. [The
     defendant's] wife attends [the organization's] support
     group for Domestic Violence. [The defendant] in some round
     about way discovered her participation. Also included in
     the letter were [the reverend of the church] (this church
     provides financial support to [the organization]) and to
     [another reverend, who is], the pastor of a church, teacher
     at seminary and Board Member. I was leading a support
     group when I learned of the letter. I immediately called
     [the] Police to request a police presence in the parking
     lot. Nothing happened until the next week when I started
     getting harassing emails once or twice a day. The emails
     attack me and the . . . [o]rganization, and have gotten
     more severe as time has progressed. During our next
     support group meeting I was afraid and asked two men to
     watch the parking lot for [the defendant]. I gave them
     make [and] model of his car along with license plate
                                                                        3


plaintiff claimed that the defendant had sent to a board member

of the organization a letter dated February 27, 2014,

discrediting the organization, and had sent her multiple

harassing electronic mail messages (e-mails) attacking her and

her organization's work.    She also claimed that the defendant

had been in the parking lot of the church where the support

group meeting was taking place.    The plaintiff did not submit

the February 27, 2014, letter or any of the e-mails with the

affidavit.   Following an ex parte hearing on the same day, a

judge granted the c. 258E order with an expiration date of March

25, 2014.    On the day the c. 258E order was to expire, a

contested hearing was held at which the plaintiff sought to

extend the order.    During the hearing, the plaintiff submitted

the February 27, 2014, letter and two e-mails that the defendant

had written and sent to the organization.    Following the

hearing, the judge declined to extend the order, and it was

"terminated."2

     Nearly a year later on February 17, 2015, the defendant

filed a motion to expunge all records of the c. 258E order.       The


     number. They came in to let me know [the defendant] was
     driving through the parking lot. The escalation makes me
     afraid as well as the individual Actions."
     2
       In the context of c. 209A and c. 258E orders, trial courts
have used "vacated" and "terminated" interchangeably. As of
September of 2011, trial court forms for c. 209A and c. 258E
orders use "terminated." See Guidelines for Judicial Practice:
Abuse Prevention Proceedings § 1:00, at 8-9 (Sept. 2011).
                                                                      4


defendant claimed that the plaintiff committed a fraud on the

court in her affidavit submitted in support of the ex parte

order when she stated that the defendant's emails were harassing

and were sent directly to her.    Following a hearing on the

motion, a second judge denied the motion to expunge.      The

defendant timely appealed.

    Discussion.     1.   Statutory framework.   We begin by briefly

analyzing the statutory structure of harassment prevention

orders.    In 2010, pursuant to St. 2010, c. 23, "[c.] 258E was

enacted . . . to allow individuals to obtain civil restraining

orders."   O'Brien v. Borowski, 461 Mass. 415, 419 (2012).      The

law was intended to protect victims of "harassment," as that

term is defined by § 1, who could not legally seek protective

orders under G. L. c. 209A due to the lack of familial or

romantic relationship with the perpetrator.     Ibid.   Because of

its origin and purpose, much of the language in c. 258E is

analogous to the language found in c. 209A.     In fact, the

Supreme Judicial Court has repeatedly cited case law

interpreting c. 209A orders when analyzing analogous issues in

the context of c. 258E orders.    See id. at 417-418 (applying

case law interpreting c. 209A orders in holding c. 258E orders

should be appealed directly to Appeals Court); Seney v. Morhy,

467 Mass. 58, 62 (2014) (applying case law interpreting c. 209A

orders in analyzing whether appeal of expired c. 258E order is
                                                                     5


moot).   This court also has cited the Guidelines for Judicial

Practice:   Abuse Prevention Proceedings (Guidelines), which

addresses c. 209A, as an authoritative source for proceedings

and orders pursuant to c. 258E.    See F.A.P. v. J.E.S., 87 Mass.

App. Ct. 595, 601 n.14 (2015) ("[W]e see no reason why the

Guidelines . . . should not apply equally in [c. 258E]

harassment order proceedings, absent some issue particular to

harassment orders [under c. 258E]").     See also Mass. G. Evid.

note to § 1106, at 376 (2016) (evidentiary standards applicable

in c. 209A proceedings also applicable in c. 258E proceedings).

     Chapters 209A and 258E are particularly similar in their

treatment of records following the issuance of an order, as well

as after an order is vacated.     Under both statues, once a judge

issues an order, the order and supporting papers are transmitted

to the appropriate law enforcement agency.3    G. L. c. 209A, § 7,

third par.; G. L. c. 258E, § 9, third par.     The records of

c. 209A orders are also transmitted to the commissioner of

probation (commissioner) to be recorded in the Statewide

domestic violence record keeping system (DVRS), created by



     3
       According to Guideline 4:07 of the Guidelines (Sept.
2011), addressing service of c. 209A orders issued ex parte and
their supporting papers, the phrase "appropriate law enforcement
agency" means the "police department of the municipality wherein
the defendant can be found." Vaccaro v. Vaccaro, 425 Mass. 153,
156 (1997).
                                                                     6


St. 1992, c. 188, § 7.4    G. L. c. 209A, § 7, third par.    See

Vaccaro v. Vaccaro, 425 Mass. 153, 156-157 (1997).     Similarly,

records of c. 258E orders are also transmitted to the

commissioner to be recorded in a Statewide registry.     G. L.

c. 258E, § 9, second par.5    Under both statues, once an order is

vacated, the court sends written notification to the appropriate

law enforcement agency directing it to destroy its records of

the vacated order.   G. L. c. 209A, § 7, third par; G. L.

c. 258E, § 9, third par.     However, there is no explicit

statutory authority regarding the expungement of records of

c. 209A or c. 258E orders from any Statewide registry maintained

by the commissioner.   See Vaccaro, supra.

     4
       "The DVRS is a registry of sorts, established by the
commissioner . . . pursuant to a statutory directive originally
enacted in 1992, [see St. 1992, c. 188, § 7,] and includes,
among others, records of the issuance of and any violations of
criminal or civil restraining or protective orders. . . .
Records in the DVRS are available only to law enforcement and
'judges considering petitions or complaints' for restraining and
protective orders." Commonwealth v. Dossantos, 472 Mass. 74,
77-78 (2015).
     5
       General Laws c. 258E, § 9, second par., inserted by
St. 2010, c. 23, provides: "Whenever the court orders that the
defendant refrain from harassing the plaintiff or have no
contact with the plaintiff . . . , the clerk or clerk-magistrate
shall transmit: . . . to . . . the commissioner . . .
information for filing in the court activity record information
system or the statewide domestic violence recordkeeping system
as provided in . . . chapter 188 of the acts of 1992 or in a
recordkeeping system created by the commissioner . . . to record
the issuance of, or violation of, prevention orders issued
pursuant to this chapter . . . . The commissioner . . . may
develop and implement a statewide harassment prevention order
recordkeeping system."
                                                                      7


    2.   Standard for expungement.     In the case before us, the

plaintiff's request to extend the c. 258E order was denied.      On

the c. 258E order, the judge marked the box stating that the

"Order has been terminated" and directing law enforcement to

"destroy all records of such Order."     However, the defendant's

subsequent motion to expunge all records of the c. 258E order,

the allowance of which would have resulted in their deletion

from the Statewide registry maintained by the commissioner, was

denied by another judge.     In order to determine whether the

judge erred in denying the motion to expunge, we must first

determine under what circumstances expungement of the record of

a c. 258E order is proper.

    In the context of c. 209A orders, the Supreme Judicial

Court held in Vaccaro, supra, that there is no statute that

permits an order's record to be removed or expunged from the

Statewide system, even if the order has been vacated.     That

court explained:

    "The system is designed to promote the goal of preventing
    abuse as prescribed by a variety of statutes by providing a
    judge (and other authorized agencies) with complete
    information about a defendant. Such information 'can be
    essential to providing protection for the plaintiff.' See
    Guidelines, commentary to Guideline 2:10. Because all
    restraining and protective orders are listed, both active
    and inactive, a judge may be better able to identify
    situations in which the plaintiff 'may face a particularly
    heightened degree of danger.' Id. at commentary to
    Guideline 3:05. The power of expungement cannot be a
    necessary or inevitable implication of the statutory
    mandate to record such orders and make them available to
                                                                    8


       judges or other authorized agencies. On the contrary, such
       a power would be inconsistent with the manifest purpose of
       G. L. c. 209A and other abuse prevention statutes."
       (Footnote omitted.)

Id. at 157-158.

       Subsequently, in Commissioner of Probation v. Adams, 65

Mass. App. Ct. 725, 737 (2006), this court carved out a narrow

exception in holding that a judge has an inherent authority to

expunge the records of a c. 209A order "in the rare and limited

circumstance that the judge has found through clear and

convincing evidence that the order was obtained through fraud on

the court."   This court reiterated that the practice of

retaining a record of issued c. 209A orders in the DVRS is

justified in order "to promote the good of preventing abuse

. . . by providing a judge (and other authorized agencies) with

complete information about a defendant."    Ibid., quoting from

Vaccaro, 425 Mass. at 156.   However, that interest is not served

if the order was obtained through fraud because "allowing the

court to be manipulated by fraud poses a danger to its

authority."   Adams, supra at 730.   Instead, "judges have the

authority to fashion remedies that will protect the integrity of

the courts, and that will discourage the public from attempting

to use the courts to perpetuate fraudulent schemes."     Id. at

731.   Furthermore, in instances of fraud, "the judge's inherent
                                                                      9


power to fashion an appropriate remedy is not vitiated by the

statute's omission regarding expungement."      Id. at 734.

    In Adams this court also illustrated the high standard the

defendant must meet in order to show a fraud on the court has

occurred.   "A 'fraud on the court' occurs where it can be

demonstrated, clearly and convincingly, that a party has

sentiently set in motion some unconscionable scheme calculated

to interfere with the judicial system's ability impartially to

adjudicate a matter by improperly influencing the trier or

unfairly hampering the presentation of the opposing party's

claim or defense."     Id. at 729-730.   This court in Adams

identified such fraud to include a party presenting to the court

forged letters, fabricated e-mails, and a "calculated pattern"

of false statements.     Id. at 730, and cases cited.   See

MacDonald v. MacDonald, 407 Mass. 196, 202 (1990) (examples of

fraud on the court include bribery of judges or the jury,

employment of counsel to influence the court, and counsel's

involvement in the perpetration of the fraud).      Cf. Wojcicki v.

Caragher, 447 Mass. 200, 210-211 (2006) (holding that false

testimony, alone, does not support finding of fraud on court

without evidence of more "egregious conduct involving a

corruption of the judicial process itself"); M.C.D. v. D.E.D.,

90 Mass. App. Ct. 337, 341-342 (2016) (distinguishing

"deliberate scheme . . . typically involving others in the court
                                                                   10


system, combined with a larger pattern of harassment," which

constitutes fraud on court, from mere "false allegation," which

does not).

    For the reasons cited in Adams, supra at 728-731, 735-737,

we reach the same conclusion with respect to the standard for

expungement of the records of c. 258E orders.   That is, a judge

has the inherent authority to expunge the record of a c. 258E

order only "in the rare and limited circumstance that the judge

has found through clear and convincing evidence that the order

was obtained through fraud on the court."    Id. at 737.

    Here, we discern no error in the judge's determination that

the defendant failed to make such a showing.    In his motion to

expunge, the defendant alleged the plaintiff committed a fraud

on the court when she stated in her affidavit that the defendant

had sent "harassing" e-mails to her, "attack[ing her]" and

"mak[ing her] afraid."   The defendant claimed that those

statements falsely implied that he had sent harassing e-mails

directly to the plaintiff.   The defendant argues that, contrary

to what the plaintiff claimed, he never sent any e-mails to the

plaintiff directly and the content of the e-mails he had sent to

other members of the organization could in no way be seen as

threatening or harassing to the plaintiff.

    While we acknowledge that the e-mails submitted by the

plaintiff at the extension hearing were not addressed to the
                                                                   11


plaintiff directly but to other members of the organization and

subsequently forwarded to her, we can discern no error in the

judge's finding that the plaintiff's earlier statements did not

constitute fraud.   There is nothing in the record to establish

that the defendant's e-mails, which the plaintiff received and

submitted to the court, were fabricated or otherwise false or

that the plaintiff's affidavit or testimony was motivated by any

deceptive scheme.   See id. at 730.   Furthermore, the fact that

the plaintiff described the e-mails as "harassing" and attacking

her and the organization, while the defendant claimed they were

not, is merely expected, conflicting testimony interpreting the

content of the e-mails.    See Vaccaro, 425 Mass. at 154.

    Accordingly, applying the reasoning from Adams, and the

relevant cases cited therein, "we are satisfied that something

considerably more systemic or egregious than what is shown here

is required to constitute fraud on the court to outweigh the

public interest in the commissioner's statutory mandate to

maintain [c. 258E] records for use by the courts and other

authorized agencies."     M.C.D., supra at 344.

    The defendant's alternative argument that the records

should be expunged because there was insufficient legal or

factual basis for the c. 258E order to have issued is without

merit.   Although the judge declined to extend the order at the

contested hearing, that outcome does not entitle the defendant
                                                                 12


to expungement.   See Adams, 65 Mass. App. Ct. at 737.     As

explained herein, expungement shall be ordered only upon a clear

and convincing showing of fraud on the court.      See ibid.

    Accordingly, we discern no error in the judge's denial of

the defendant's motion to expunge.   The order denying the motion

to expunge the civil record of the harassment prevention order

is affirmed.

                                     So ordered.
