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B.C. v. F.C.

Appeals Court of Massachusetts, Norfolk

September 23, 2016


          Heard: June 2, 2016.

         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.

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

          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, 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 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.


         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 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 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 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 ...

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