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15-P-1537                                             Appeals Court

                           M.C.D.   vs.   D.E.D.


                             No. 15-P-1537.

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

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


Abuse Prevention. Domestic Violence Record Keeping System.
     Fraud. Practice, Civil, Notice of appeal, Fraud.



     Complaint for protection from abuse filed in the Essex
Division of the Probate and Family Court Department on December
15, 2014.

     A motion to vacate the abuse prevention order and to
expunge the record, filed on March 6, 2015, was heard by Theresa
A. Bisenius, J.


     Natalie L. Lorenti, Special Assistant Attorney General
(Sarah M. Joss with her) for Commissioner of Probation.
     D.E.D., pro se.


    HANLON, J.       In this cross appeal, the Commissioner of

Probation (commissioner) appeals from an order of a Probate and

Family Court judge to expunge a G. L. c. 209A abuse prevention

order (209A order) entered against the defendant.     The
                                                                    2


commissioner challenges the judge's findings that the

plaintiff's allegations of abuse were knowingly false and

constituted a fraud on the court, as explained in Commissioner

of Probation v. Adams, 65 Mass. App. Ct. 725, 729-730 (2006).

We agree that the judge's subsidiary findings were insufficient

to support her ultimate finding of fraud on the court, and we

vacate the order for expungement.1

     Background.   The plaintiff obtained the ex parte 209A order

against the defendant on December 15, 2014.    She alleged in her

affidavit that, on December 3, 2014, the defendant had beaten

her and that she was in fear of him.     At the ex parte hearing,

the plaintiff barely spoke, but her lawyer told the judge that

his client had been beaten and that she was extremely reluctant

to talk about the incident, but that the people who had treated

her medically, as well as members of her family, believed that

her injuries could not have been the result of a fall and were,

in fact, the result of serious abuse.2


     1
       The defendant below appealed only the denial of his motion
to dismiss the commissioner's appeal as untimely. He does not
press that issue here, discussed infra.
     2
       Specifically, plaintiff's counsel told the judge that his
client had been beaten "pretty badly [and that the defendant
had] punched her in the face, grabbed her arms, bruising them.
Her ankle was injured in the process. Uh, he punched her really
badly. I mean, the -- the injuries are horrific. . . . She's
got a big black eye. All of her arms are bruised. Her ankle
was bruised." Plaintiff's counsel also said that the plaintiff
had been admitted first to the Salem Hospital intensive care
                                                                   3


     On December 22, 2014, the day scheduled for the hearing

after notice, the plaintiff did not appear and an associate of

her lawyer appeared for her.   The defendant was represented by

counsel, who immediately informed the judge that her client was

"an Assistant City Solicitor for [a city in Massachusetts]."

She represented that she had "[overwhelming] evidence that . . .

this allegation never . . . happened, that [D.E.D.] absolutely

did not do anything to [his] wife."3   The defendant volunteered



unit and then to a rehabilitation facility as a result of
injuries to her ankle and knee. He represented that he had "a
number of photographs . . . which really tell the story," and
that the photographs would show how severe the beating had been.
Plaintiff's counsel told the judge that it was his understanding
that there had been a long-standing pattern of abuse in the
marriage and that his client was "very reticent and has great
difficulty talking about it. It was difficult to get her to
assist in the affidavit." He told the judge that the plaintiff
had been in the rehabilitation facility since the incident and
was scheduled to be discharged the following day -- accounting
for the reporting delay. Also, the lawyer represented that his
client initially had insisted that she had fallen, but that
medical personnel at both the hospital and the rehabilitation
facility had "found that the injuries were not consistent with a
fall." In the lawyer's view, the photographs would corroborate
his argument that the injuries were not consistent with a fall.
He stated that the plaintiff's children from a prior marriage
had met with him months ago in connection with the pending
divorce action "and laid out a very serious pattern of abuse."
Finally, he said that his client had only recently agreed to
disclose the abuse because "you've got someone who is somewhat
in denial and reluctant to go forward, for fear of embarrassing
her husband or . . . embarrassing the family."
     3
       Defense counsel continued, "I have witnesses subpoenaed
here. I just wanted to make an offer of proof and like this --
and would like this order . . . terminated nunc pro tunc. I
have . . . video evidence. I have . . . the parties' 19-year-
old daughter . . . . [T]he plaintiff told her that she fell,
                                                                     4


that he had "been an attorney in good standing with the

Commonwealth of Massachusetts for 32 years.   [He had] a

completely unblemished . . . record.   [He] enjoy[ed] an

impeccable reputation among the legal bar and [his] peers.    [He

had] all witnesses . . . to show that it was -- absolutely could

not -- [he] could -- it was not possible for [him] to have

committed the act . . . that caused the injuries to -- to [his]

wife."4

     The judge responded that there was no need to "get into the

evidence" because there was no request to extend the order.    The

defendant and his lawyer repeatedly represented that there had

been no abuse, that the defendant essentially had a solid alibi

for the time in question and that his wife was an alcoholic who



not that . . . her father had . . . hit her. My client was at
work all day. I have video evidence from the security cameras
and from the office manager for the [city] that . . . [D.E.D.]
was at work from around 10:30 in the morning till eight o'clock
at night. I have . . . video evidence or . . . [ten]-minute
time shots . . . of his car right outside the [city]. . . . And
I would really [ask] . . . that this be . . .vacated or
[terminated] nunc pro tunc."
     4
       "The . . . video evidence that my attorney . . . referred
to shows me arrive at work at the City . . . at . . . about
10:40 A.M. It shows me leave the building at 12:06 . . . P.M.
to move my car. And it shows me returning two minutes later --
and parked my car right in view of a -- of a high-definition
video camera. And then it shows me leave -- . . . a fifth video
shows me leave the building at eight o'clock P.M. And then
. . . video slices of every ten minutes, from 11:30 A.M. to 8:30
P.M., show my car in the exact same spot. Never moved. [M]y
office manager . . . who I work with, . . . is here. She will
testify that I was at work all day."
                                                                      5


had fallen at other times in the past.     When the judge inquired,

the plaintiff's lawyer confirmed that his law firm did, in fact,

have the medical records described earlier and would provide

them to the judge if asked.   The order was terminated.

     On March 6, 2015, the defendant filed a motion to vacate

the 209A order and to expunge all records of that order.    After

a March 30, 2015, hearing, the judge endorsed the first page of

the defendant's motion, "Allowed."5   The docket entry stated,

"Motion to vacate RO Allowed 3/30/2015."

     The commissioner filed a request for clarification of the

order to expunge the 209A order.   The judge subsequently issued

findings of fact in clarification of her order to expunge the

209A order.   The judge found that, based on the evidence

submitted by the defendant, the alleged abuse could not have

happened as claimed by the plaintiff.    The judge found that it

had been shown by clear and convincing evidence that the

plaintiff made false statements in court under oath for the

purpose of obtaining the 209A order and that her false

assertions constituted a fraud on the court.    The judge further

found that the harm to the defendant in maintaining a record of




     5
       The record does not indicate whether the plaintiff or any
attorney representing her appeared at the hearing on the motion
to vacate and to expunge; her counsel filed a motion to withdraw
on March 25, 2015, and the motion was allowed on April 7.
                                                                    6


the 209A order outweighed the government's interest in keeping

the record in the system.   The commissioner filed this appeal.

    Discussion.   1.   Timeliness of appeal.   The judge's

allowance of the defendant's motion to vacate the 209A order and

to expunge all records of such order was endorsed on the

defendant's motion as "[a]llowed," with the date of March 30,

2015.   No separate order was signed and the docket reflected

only that the "motion to vacate RO Allowed 03/30/15."   The

commissioner moved for clarification, and the judge, on May 1,

2015, issued findings of fact in furtherance of her order to

expunge.   The findings were docketed on May 5, 2015, and the

commissioner's notice of appeal was filed on July 1, 2015.

    The judge thereafter denied the defendant's motion to

dismiss the commissioner's appeal as untimely.   The defendant,

appearing pro se, cross-appealed on that basis but no longer

presses the issue on appeal.   Because the timeliness of an

appeal is jurisdictional, we briefly address it.   See Rinaldi v.

State Bldg. Code Appeals Bd., 56 Mass. App. Ct. 668, 671 (2002).

    The judge did not abuse her discretion in declining to

dismiss the commissioner's appeal.   In ruling on the defendant's

motion to vacate the 209A order and to expunge, the judge's

endorsement of "[a]llowed," to the extent it was intended to

address expungement, was not clearly indicated by memorandum or

order, nor did the docket entry reflect the substance of the
                                                                      7


order regarding expungement, as required by Mass.R.Civ.P. 79(a),

365 Mass. 839 (1974).   In our view, the disposition of the

defendant's motion did not clearly denote an order of

expungement so as to give notice that the period for filing an

appeal was triggered.   See Department of Rev. v. Mason M., 439

Mass. 665, 673 (2003); Zielinski v. Connecticut Valley Sanitary

Waste Disposal, Inc., 70 Mass. App. Ct. 326, 330-332 (2007).     In

these circumstances, the judge's subsequent findings of fact and

order to expunge, the substance of which were recorded on the

docket on May 5, 2015, started the appeal period.    As such, the

commissioner's notice of appeal, filed within the sixty-day

limit permitted agencies of the Commonwealth under Mass.R.A.P.

4(a), as amended, 464 Mass. 1601 (2013), was timely.

    2.   Fraud on the court.    Records of abuse prevention orders

are not to be expunged from the Statewide domestic violence

registry (registry) absent a showing that the order was obtained

through the commission of fraud on the court.    Silva v. Carmel,

468 Mass. 18, 24-25 (2014).    Here, the judge's subsidiary

findings concerning the plaintiff's actions and allegations in

pursuing the 209A order did not support her ultimate finding

that the conduct constituted a 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
                                                                     8


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,

65 Mass. App. Ct. at 729-730, quoting from Rockdale Mgmt. Co. v.

Shawmut Bank, N.A., 418 Mass. 596, 598 (1994).

     The judge did not specifically find that the plaintiff's

claim of abuse was sentiently false, though the judge did find

that the false allegation was made for the purpose of obtaining

the 209A order.6   From this, the defendant argues that the

judge's findings satisfied the Adams standard because the

plaintiff obtained the 209A order with the requisite awareness

that her assertion of abuse was false.


     6
       The record appendix is incomplete. It contains none of
the affidavits offered by the defendant to substantiate his
claim that he could not have committed the abuse. Specifically,
the defendant claimed in his "concise statement of facts and law
. . . in support of [his] motion to vacate ab initio abuse
prevention order . . . and all records of such order" that he
had attached an affidavit from his daughter representing that
the plaintiff (her mother) had told her daughter that the
injuries were caused by a fall. He also represented that there
was a second affidavit from a colleague in his office averring
that the defendant had been in the office from 10:30 A.M. until
8:30 P.M. on December 3, 2014. A third affidavit, he
represented, would show recorded images of his car parked at
city hall. On the bare record we do have, it is neither clear
nor convincing that the initial allegation was false and there
is no recantation here from the plaintiff -- only a request to
terminate the 209A order. Nevertheless, the judge observed each
of the parties, albeit at different times, and her questions
show that she paid close attention at each hearing. In
addition, the judge had the benefit of reading the defendant's
affidavits. For all of those reasons, we cannot say that she
was wrong when she concluded the initial allegation was false.
                                                                   9


    However, while suggesting a deliberate purpose to the

plaintiff's use of a false allegation -- to obtain the 209A

order -- the judge's findings concerning the plaintiff's conduct

did not add up to a larger plan intended to harass the defendant

or to undermine the judicial process, as was the case in Adams.

Here, there was no finding that the plaintiff's conduct was

undertaken as part of a "larger pattern of harassment" or

"unconscionable scheme calculated to interfere with the judicial

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

729, 730.   We think it important to distinguish between a false

allegation, on the one hand, and a deliberate scheme, on the

other, typically involving others in the court system, combined

with a larger pattern of harassment, that has been held to

constitute fraud on the court.   See MacDonald v. MacDonald, 407

Mass. 196, 202 (1990) ("Examples are bribery of judges,

employment of counsel to 'influence' the court, bribery of the

jury, and the involvement of an attorney [an officer of the

court] in the perpetration of fraud" [citation omitted]).

Compare Wojcicki v. Caragher, 447 Mass. 200, 210-211 (2006)

(false testimony, alone, would not support a finding of fraud on

the court, without evidence of more egregious conduct).

    The judge's findings in this case point to a single

instance of a party using a false allegation of abuse to procure

a 209A order in an ex parte proceeding.   At the hearing after
                                                                   10


notice, the plaintiff, through her attorney, did not recant from

her earlier allegation; she merely sought to terminate the

order.   It was the defendant's own view, at the time of the

hearing after notice, that the plaintiff suffered from alcohol

addiction and did not knowingly make a false complaint.   We

understand that these are extremely difficult cases for everyone

involved -- for plaintiffs who may (or may not) be disclosing

personal information with likely serious consequences for their

families and even for their safety; for defendants who face

serious collateral consequences from the issuance of even an ex

parte order, and who may not, in fact, have committed any abuse;

and for judges who are charged with determining the truth.

    Nonetheless, we also have in mind that "'[t]here is nothing

in St. 1992, c. 188, § 7, or in G. L. c. 209A, that permits a

record to be removed or that authorizes the entry of a judicial

order directing expungement of a record from the system.'

[Vaccaro v. Vaccaro, 425 Mass. 153, 156 (1997)].    'The system is

designed to promote the goal of preventing abuse . . . by

providing a judge (and other authorized agencies) with complete

information about a defendant.'   Id. at 157."   Adams, 65 Mass.

App. Ct. at 728.   Furthermore, in Vaccaro, supra at 157-158, the

Supreme Judicial Court noted,

    "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
                                                                     11


    information about a defendant. Such information 'can be
    essential to providing protection for the plaintiff.' See
    Guidelines [for Judicial Practice: Abuse Prevention
    Proceedings (Oct. 1996)], 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 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."

    In Adams, supra at 729, this court carved out a narrow

exception for fraud on the court where "[i]n essence, the

District Court judge found . . . that '[the nineteen]

allegations by [Jones] are false and perjurious'; '[his

behaviors] are indicative of an obsessive compulsion that is

extremely alarming'; '[t]he seeking of the restraining order

. . . is part of a larger pattern of harassment'; and '[i]n

addition to filing affidavits that contain falsehoods . . . ,

[Jones] has falsely complained of [Adams] to the Board of Bar

Overseers.'"   In so doing, we also explicitly distinguished

Vaccaro, stating, "Allowing expungement in this case does not

offend the Supreme Judicial Court's rationale in Vaccaro.      As

the court stated in that case, the purpose of G. L. c. 209A is

to protect prospective victims.   [Vaccaro], 425 Mass. at 157.

In the case before us, Adams was the victim of abuse.     The 209A

order against her was obtained fraudulently as a means of
                                                                  12


retaliation against her for seeking a 209A order against Jones,

and the court was used as a mechanism to perpetrate the fraud."

Adams, supra at 734-735 (footnote omitted).

    Applying this reasoning to the present case, we are

satisfied that something considerably more systemic or egregious

than what is shown here is required to constitute fraud on the

court and therefore to outweigh the public interest in the

commissioner's statutory mandate to maintain 209A records for

use by the courts and other authorized agencies.   See Vaccaro,

supra.

    Based on the foregoing, the order denying the defendant's

motion to dismiss the commissioner's appeal is affirmed.   The

order to expunge all records of the 209A order is vacated, and a

new order is to enter denying the motion.

                                   So ordered.
