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

Appeals Court of Massachusetts, Middlesex

March 1, 2017

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

          Heard: December 14, 2016.

         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.

          Present: Meade, Henry, & Lemire, JJ.

          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 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 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 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'Brienv.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 J_d. at 417-418 (applying case law interpreting c. 209A orders in holding c. 258E orders should be appealed directly to Appeals Court); Seneyv. Morhy, 467 Mass. 58, 62 (2014) (applying case law interpreting c. 209A orders in analyzing whether appeal of expired c. 258E order is 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 ...


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