Opinion
15-P-1749
01-23-2017
Shauna CAISEY & another v. Heather HEWITT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this consolidated appeal, the defendant appeals from the orders denying her motion to vacate two G. L. c. 258E harassment prevention orders (c. 258E orders). The defendant argues that the judge abused her discretion in denying the motion. We affirm.
Background . The c. 258E orders arose from a dispute between the parties, who were neighbors. On May 27, 2015, following a contested hearing, at which both parties were present, the judge issued c. 258E orders against the defendant in favor of both plaintiffs for a duration of three months, expiring on August 28, 2015. A month later, on July 22, 2015, the defendant filed a motion to vacate the c. 258E orders, which included a request to expunge all records of the orders. On September 1, 2015, a hearing was held on the motion to vacate with all parties present. The judge denied the motion. Immediately following the judge's denial of the motion to vacate, a hearing was held on the plaintiffs' requests to extend the c. 258E orders. On September 2, 2015, the judge declined to extend the c. 258E orders, which terminated as a matter of law.
When denying the motion, the judge stated that she would "take no action" on the request to expunge because it was "a separate issue for a separate time." Accordingly, we do not address the defendant's request to expunge all records of the c. 258E orders.
Although the orders have expired, this appeal is not moot. See Seney v. Morhy , 467 Mass. 58, 62 (2014).
On appeal, the defendant claims that the judge should have allowed the motion to vacate because (1) there was no legal or factual basis to support the issuance of the c. 258E orders, and (2) the allegations by the plaintiffs supporting the orders constituted fraud on the court.
Discussion . We review the judge's orders denying the defendant's motion to vacate under an abuse of discretion standard. See L.L . v. Commonwealth , 470 Mass. 169, 185 n.27 (2014). See also Cullen Enterprises, Inc . v. Massachusetts Property Ins. Underwriting Assn ., 399 Mass. 886, 894 (1987) (denial of such motions "will be set aside only on a clear showing of an abuse of discretion").
1. Insufficient basis . General Laws c. 258E, § 3(e ), allows a judge to modify or terminate a c. 258E order upon the request of either party. See MacDonald v. Caruso , 467 Mass. 382, 387 (2014). A party making such a request may do so through a motion for postjudgment relief, pursuant to Mass.R.Civ.P. 60(b)(5), 365 Mass. 829 (1974), as the defendant did here in her motion to vacate. See MacDonald , supra . The judge may terminate or vacate a c. 258E order prior to its expiration if the moving party can demonstrate "a significant change in circumstances since the entry of the order that justifies termination of the order." Id . at 388. Importantly, "[a] defendant's motion to terminate an order is not a motion to reconsider the entry of a final order, and does not provide an opportunity for a defendant to challenge the underlying basis for the order or to obtain relief from errors correctable on appeal." Ibid .
Pursuant to rule 60(b)(5), relief may be obtained where "it is no longer equitable that the judgment should have prospective application."
In the context of c. 258E and G. L. c. 209A orders, trial courts have used "vacate" and "terminate" interchangeably. See Trial Court Guidelines for Judicial Practice: Abuse Prevention Proceedings § 1:00, at 8-9 (discussing "terminated" and "vacated" as describing "orders that have been terminated upon motion of either party").
Here, the defendant's motion to vacate made no assertion concerning any change in circumstances since the issuance of the c. 258E orders. Instead, the defendant argued, as she does on appeal, that the c. 258E orders should not have issued in the first place due to insufficient legal and factual support under G. L. c. 258E. However, that was not an appropriate argument for purposes of the defendant's motion to vacate. See ibid . Rather it was an argument in support of a request to vacate retroactively the issuance of the c. 258E orders. Such an argument would have been proper in support of either a motion to reconsider or a direct appeal. See ibid . Nevertheless, the judge stated on the record that she was "comfortable with [her] initial decision." Furthermore, since the defendant made no claim of any change in circumstances since the issuance of the c. 258E orders, the judge could not have found any change to justify vacating the orders at that time. Although the defendant implores us to do so, a review of the judge's decision on the motion to vacate does not allow us to revisit whether there was sufficient legal or factual basis for the issuance of the c. 258E orders. See ibid .
We note that the defendant's motion to vacate could not have been construed as a motion to reconsider under Mass.R.Civ.P. 59, 365 Mass. 827 (1974), because such motions are required to be served no later than ten days after entry of the judgment.
2. Fraud on the court . Rule 60(b)(3) of the Massachusetts Rules of Civil Procedure, 365 Mass. 828 (1974), allows a party to move for postjudgment relief based on a showing of fraud. "[C]ourts have the inherent power to revoke judgments obtained by fraud on the court." Commissioner of Probation v. Adams , 65 Mass. App. Ct. 725, 729 (2006). "A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." Id . at 729-730, quoting from Rockdale Mgmt. Co . v. Shawmut Bank, N.A ., 418 Mass. 596, 598 (1994). In Adams , fraud on the court was identified to include a party presenting to the trial court forged letters, fabricated electronic mail messages, and a "calculated pattern" of nineteen false statements. Adams , supra at 730, and cases cited.
Here, in the defendant's motion to vacate, she requested that the judge vacate and expunge all records of the c. 258E orders based on a fleeting allegation that the plaintiffs committed a fraud on the court. The defendant claimed that the plaintiffs' fraudulent behavior occurred at the May, 2015, hearing when they "intentionally mischaracterized conduct that objectively does not qualify as either violent or threatening." The defendant cited no specifics other than a claim that the plaintiffs were lying in order to exact revenge on the defendant for calling animal control on their dog. As Adams illustrates, a mere allegation of a mischaracterization of facts would not raise to the high standard of fraud on the court. Id . at 729-730.
On appeal, the defendant makes an additional claim of fraud based on the plaintiffs' testimony at the extension hearing that took place after the hearing and ruling on the defendant's motion to vacate. Since those statements were not presented to, and therefore not considered by, the judge at the time of her decision on the motion to vacate, we likewise do not consider them in reviewing the judge's decision to deny that motion.
Accordingly, we discern no abuse of discretion in the judge's denial of the defendant's motion to vacate.
The plaintiffs' request for appellate attorney's fees is denied.
Orders denying motion to vacate harassment prevention orders affirmed .