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M.C.D. v. D.E.D.

Appeals Court of Massachusetts, Essex

September 23, 2016

M.C.D.
v.
D.E.D.

          Heard: June 2, 2016.

         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.

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

          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 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]

         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 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 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 the 209A order outweighed the government's interest in keeping the record in the system. The commissioner filed this appeal.

         D ...


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