Heard: June 2, 2016.
for protection from abuse filed in the Essex Division of the
Probate and Family Court Department on December 15, 2014.
motion to vacate the abuse prevention order and to expunge
the record, filed on March 6, 2015, was heard by Theresa A.
Natalie L. Lorenti, Special Assistant Attorney General (Sarah
M. Joss with her) for Commissioner of Probation.
D.E.D., pro se.
Present: Kafker, C.J., Hanlon, & Neyman, JJ.
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 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
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
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." The defendant volunteered 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."
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 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.
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." The docket entry stated, "Motion to
vacate RO Allowed 3/30/2015."
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 the 209A order outweighed the government's
interest in keeping the record in the system. The
commissioner filed this appeal.