Heard: December 14, 2016.
for protection from harassment filed in the Concord Division
of the District Court Department on March 14, 2014.
motion to expunge a harassment prevention order issued
pursuant to G. L. c. 258E was heard by David E Frank, J.
Alan Curhan for the defendant.
Daniel Silverman for the plaintiff.
Present: Meade, Henry, & Lemire, JJ.
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
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. 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
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.
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 ...