J.S.H. v. J.S.

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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.