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15-P-1067                                            Appeals Court
                            B.C.   vs.   F.C.


                            No. 15-P-1067.

         Norfolk.       June 2, 2016. - September 23, 2016.

            Present:   Kafker, C.J., Hanlon, & Neyman, JJ.


   Abuse Prevention.     Domestic Violence Record Keeping System.


     Complaint for protection from abuse filed in the Norfolk
Division of the Probate and Family Court Department on July 8,
2011.

     A motion to expunge the record, filed on March 5, 2015, was
heard by George F. Phelan, J., and questions of law were
reported by him.


     Natalie L. Lorenti, Special Assistant Attorney General
(Sarah M. Joss with her) for Commissioner of Probation.
     Scott C. Gladstone for B.C. & another.


     HANLON, J.     We are asked by a judge of the Probate and

Family Court to answer two questions of law, reported under rule

5 of the Massachusetts Rules of Appellate Procedure,1 as amended,


     1
       "A report of a case for determination by an appellate
court shall be for all purposes under these rules taken as the
equivalent of a notice of appeal. Whenever a case or any part
of it is reported after decision or verdict, the aggrieved party
                                                                     2


378 Mass. 930 (1979), regarding the inherent authority of a

trial judge to order the expungement of an abuse prevention

order issued pursuant to G. L. c. 209A (order) from the

Statewide domestic violence registry system (registry), and to

clarify the type of fraud on the court that would warrant

expungement.    The case was reported after a final disposition in

the trial court,2 and therefore, we consider the report

equivalent to a notice of appeal and proceed under our standard

appellate procedure; we accept the judge's designation of the

Commissioner of Probation (commissioner) as the appellant.3    See

Mass.R.A.P. 5.4

     Here, although the judge ordered expungement, he did not

find by clear and convincing evidence that the order was



(as designated by the lower court) shall be treated as the
appellant." Mass.R.A.P. 5, as amended, 378 Mass. 930 (1979).
See Reporters' Notes to Rule 5, Mass. Ann. Laws Court Rules,
Rules of Appellate Procedure, at 22 (LexisNexis 2015) (rule 5 to
be read in conjunction with Mass.R.Civ.P. 64, as amended, 423
Mass. 1410 [1996]).
     2
       In a report dated June 10, 2015, after ordering the abuse
prevention order expunged, the judge stayed his order for the
purpose of reporting two questions of law to this court.
     3
         The parties below appear here jointly as appellees.
     4
       Although a judge may report specific questions of law
under rule 5, the issue before us is the propriety of the
judge's ruling. The reported questions need not be answered
except to the extent necessary to resolve any issue presented by
the ruling. See Commonwealth v. Markvart, 437 Mass. 331, 333
(2002) (pending action stayed in order to report questions based
on interlocutory order).
                                                                     3


obtained through a fraud on the court.    For this reason, he

lacked the authority to override the statutory requirement that

a computerized record of any abuse prevention order be

maintained in the registry.    See Silva v. Carmel, 468 Mass. 18,

24-25 (2014); Commissioner of Probation v. Adams, 65 Mass. App.

Ct. 725, 737 (2006); Quinn v. Gjoni, 89 Mass. App. Ct. 408, 414,

n.14 (2016).   As a result, the judge's order to expunge the

order from the registry must be vacated.

     Background.   The judge found the following facts, which the

parties do not challenge.5    On July 8, 2011, the order was issued

after the judge found the plaintiff credible based on the

"complaint, her affidavit, and her testimony under oath."6      At


     5
       The record appendix contains only the judge's memorandum
and order on a joint motion to expunge the order, notice of the
rule 5 report of questions of law, and papers relating to case
impoundment. Specifically, none of the underlying exhibits is
in the record appendix. See Mass.R.A.P. 18(e), as appearing in
428 Mass. 1601 (1998).
     6
       The judge's memorandum details the following. "On July 8,
2011 the Court considered the following from Plaintiff's
affidavit: '[The defendant] has been abusive towards me
throughout the marriage, he has threatened to kill me, he has
threatened to kill himself, and he has been abusive towards the
children. In April 2011 he said to me "you have been very
unpleasant lately and you're not there for me, maybe I'll just
kill you." On several occasions he has also cut out and
presented articles to me about men who kill their wives and
children. [The defendant] has threatened suicide on a number of
occasions throughout the marriage. On or about a Tuesday night
in May of 2011, he threatened to commit suicide and leave the
kids a note saying it was all my fault. On other occasions when
he threatened suicide, he has threatened to cancel his life
insurance policy and then kill himself.' Plaintiff also alleged
                                                                   4


the hearing after notice held on July 14, 2011, neither party

appeared in person, but each was separately represented by

counsel.7   At that time, plaintiff's counsel informed the judge

that she was not seeking to extend the order, and it was

terminated at that time.   Four years later, on March 5, 2015,8

the plaintiff and the defendant jointly presented a motion

seeking to have the order expunged from the registry, which is

maintained by the commissioner.

     In support of the motion to expunge, the plaintiff

apparently submitted an affidavit and a memorandum of law

asserting "that her psychosis-induced fictitious information

[included in the complaint and affidavit filed in support of her

application for the order] was tantamount to constructive

fraud"; she claimed that other than her name, the names of her

family members, and the date of marriage, "all else of substance

in her affidavit of July 8, 2011 never happened."9   The plaintiff



that the husband had walked around naked in front of the
children, that his behavior had become worse, and he was
violently throwing things around the house including a pizza."
     7
       The parties to the order were, at the time of issue,
husband and wife.
     8
       The judge's findings state that the hearing on the joint
motion to expunge occurred on March 5, but the parties indicate
in their respective briefs that the hearing was held on March
13, 2015.
     9
       None of the transcripts from any hearing pertaining to the
order was included in the record appendix. See Mass.R.A.P.
18(e).
                                                                     5


included as an exhibit a discharge summary of her inpatient

psychiatric hospitalization from July 13 through 27, 2011.     The

defendant also submitted an affidavit in support of the motion.

In response to the motion, the commissioner submitted a

memorandum of law but took no position on the expungement

request.

    In a decision dated June 10, 2015, the judge stated that he

found credible the plaintiff's testimony that "during the 2011

ex parte restraining order hearing she had internalized and

distorted domestic violence scenarios she had come across in her

practice as a family law attorney"; the judge also found

credible her representation that nothing relating to abuse in

the plaintiff's July 8, 2011, affidavit in support of her

application for the order, or testimony at the ex parte hearing,

was accurate or based in fact.   He credited the details of the

hospital discharge summary describing the plaintiff's symptoms

upon admission, along with her medication, treatment, and

diagnosis on discharge.

    In ruling that the order should be expunged, the judge

reasoned that the equitable nature of abuse prevention orders

required relief when it was no longer just for the judgment to

have "prospective application"; he opined that "[w]hen the

genesis of the complaint is fantasy, the result infects the

entire court process.   Not to treat and undo that infection
                                                                     6


causes not only disrespect to the process but subjects the

courts to scorn."   He further stated that a "strict application

of the line of cases which require[s] that a fraud be sentiently

set in motion by a malicious actor for nefarious purpose would

unfairly exclude the parties in this case from the tiny universe

of those for which expungement has so far been available.    It is

the fraudulent effect, not the person who puts the effect into

motion, against which the Court must protect."

     Ultimately, the judge ordered that, "[g]iven clear and

convincing evidence in the factual record of a fraudulent

outcome perpetrated by a Plaintiff suffering a psychotic episode

with delusions, and in order to protect the integrity of the

Court, law enforcement decision-making and the rights of

legitimate domestic abuse victims, where there is no benefit to

courts or law enforcement to keep a fantastical 209A record,

[and]where the harm to the defendant is overwhelming, it is fair

and sensible that the Court invoke its inherent authority to

expunge the record of the parties' 209A order from the statewide

domestic violence registry system."   He then stayed his

expungement order in order to report to this court two questions

of law.10


     10
       "Question of Law #1: Given the procurement of a 209A
restraining order based on fantastical representations from a
plaintiff then suffering a psychotic episode with delusions, may
the trial court invoke its inherent authority to expunge the
                                                                       7


    Discussion.   Both the parties to the order (i.e., the

appellees) and the judge ask us to expand the holding of Adams,

65 Mass. App. Ct. at 737.   We decline to do so for the following

reasons.

    It is well established that a judge possesses "inherent

powers . . . to preserve the court's authority to accomplish

justice."   Wong v. Luu, 472 Mass. 208, 218 (2015).     See

Blankenburg v. Commonwealth, 260 Mass. 369, 373 (1927); Opinion

of the Justices, 279 Mass. 607, 613 (1932).      This is especially

true when a judge's action is obtained through the commission of

fraud on the court.   "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."    Adams, supra at 729-730.    "When faced with a

finding of fraud on the court, '[t]he judge has broad discretion




record where the outcome, not the plaintiff, constitutes the
fraud on the Court?

     "Question of Law #2: To warrant expungement of a 209A
restraining order on the basis of fraud, must the fraud have
been sentiently set in motion by a plaintiff suffering delusions
and psychosis but who has not previously been determined to be
incompetent?"
                                                                      8


to fashion a judicial response warranted by the fraudulent

conduct.'"   Id. at 731.

    However, the judge's discretion in the area of the registry

is narrowly limited.     In Vaccaro v. Vaccaro, 425 Mass. 153, 155

(1997), the court noted, "the Legislature authorized and

directed the Commissioner of Probation (commissioner) to develop

and implement the system, which is to contain a computerized

record of the issuance and violation of any restraining or

protective order."     See G. L. c. 209A, § 7.11   There is nothing

included in the language of the statute, or in the 1992

amendment creating the registry, "that permits a record to be

removed or that authorizes the entry of a judicial order

directing expungement of a record from the" registry.      Vaccaro,

supra at 156.

    "[T]he absence of any provision for removal or authority

for expungement . . . reflects a deliberate legislative decision

that all records be available for review by a judge who is

considering an application for a restraining or protective order

and by other authorized agencies that have a legitimate need to




    11
       General Laws c. 209A, § 7, also details a procedure, when
an order is vacated, for notice to law enforcement agencies
directing the agencies to destroy all records of the vacated
order.
                                                                       9


see the record."12    Id. at 157.   "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.'"        Ibid.

(citation omitted).    Under Vaccaro, therefore, the power to

order expungement of such a record would be inconsistent with

the manifest purpose of G. L. c. 209A.

     There is, however, a narrow exception to this rule.

"[W]hen a fraud on the court is shown through clear and

convincing evidence to have been committed in an ongoing case,

the trial judge has the inherent power to take action in

response to the fraudulent conduct."     Adams, 65 Mass. App. Ct.

at 730 (citation omitted).    In this case, the plaintiff now

claims that, at the time she filed her complaint and affidavit

of abuse, she was experiencing a psychotic episode and

unknowingly provided false facts in those papers and during the

ex parte hearing at which the order was issued.     She then

declined, through counsel, to extend the order, which was


     12
       The Legislature has enacted a statute similarly
restricting a judge's authority to order expungement of records
with regard to criminal cases. G. L. c. 276, § 100C. In
criminal cases where a nolle prosequi or a dismissal has been
entered, a judge's sole remedy is to order the case sealed where
justice would best be served to protect the confidentiality of
records of the crime charged, eliminating a judge's equitable
authority to expunge court or probation records. See
Commonwealth v. Moe, 463 Mass. 370, 372-373 (2012). See also
Commonwealth v. Gavin G., 437 Mass. 470, 473-475 (2002).
                                                                    10


subsequently vacated.   Unlike the plaintiff in Adams, nothing in

this plaintiff's behavior is indicative of a conscious

fabrication of abuse, nor did she perjure herself throughout the

proceedings as a "larger pattern of harassment" or an

"unconscionable scheme calculated to interfere with the judicial

system's ability impartially to adjudicate a matter."     Id. at

729, 730.

    The plaintiff and the defendant ask this court to expand

the holding in Adams to include the order at issue here, where,

they argue, the fraud on the court is the "consequence of

fantastical representations from a plaintiff then suffering a

psychotic episode with delusions."    The judge contends a judge's

power to order expungement of a record from the registry should

not be "limited to lying litigants" but should be expanded to

include orders obtained by a "paranoid and delusional

complainant" when the interest of the government to maintain a

record of the order outweighs the harms suffered by the

defendant against whom the order was issued.

    There are strong policy reasons, described by the Supreme

Judicial Court in Vaccaro and subsequent cases, for the registry

established by the Legislature.   See Vaccaro, 425 Mass. at 157.

See also Allen v. Allen, 89 Mass. App. Ct. 403, 406 (2016);

M.C.D. v. D.E.D., 90 Mass. App. Ct.       (2016).   Specifically,

in alleged abuse cases, it is crucial that judges and law
                                                                 11


enforcement officials have as much information as possible,

including "all orders, inactive as well as active" to determine

potential dangerousness.13   Vaccaro, supra.

     Having this in mind, we are not persuaded that this court

should carve a broader exception.   As a result, because the

judge did not find by clear and convincing evidence that the

plaintiff obtained the order by perpetrating a fraud on the

court, we conclude he did not have the authority to order

expungement of the record from the registry.   See Silva, 468

Mass. at 24-25.

     Conclusion.14   The order of the Probate and Family Court

entered on June 10, 2015, allowing the joint motion to expunge

is vacated, and a new order is to enter denying the motion.

                                    So ordered.

     13
       Judges and other court officials authorized to make bail
and release decisions in criminal cases are required by statute
to consider whether the person has any history of orders issued
against him pursuant to G. L. c. 209A when making that
determination, see G. L. c. 276, § 57, particularly in so-called
dangerousness hearings, see G. L. c. 276, § 58A.
     14
       The parties alternatively argue that the judge has the
equitable power to order expungement under inherent powers
expressed in Mass.R.Dom.Rel.P. 60(b) (identical to Mass.R.Civ.P.
60[b], 365 Mass. 828 [1974]). This argument fails, as the final
judgment (the order) was vacated at the hearing after notice,
thus granting the defendant the relief he sought. The
constitutional due process argument raised by the parties also
fails. First, there is no mention in the judge's findings
regarding this argument having been raised below, and second,
the sparseness of the record appendix makes the evaluation of
this claim speculative at best. Compare Twin Fires Inv., LLC v.
Morgan Stanley Dean Witter & Co., 445 Mass. 411, 428-429 (2005).
