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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).