Opinion
20-P-924
08-18-2021
J.B. v. M.S.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The self-represented defendant, M.S., appeals from an order denying his motion to expunge an abuse prevention order issued pursuant to G. L. c. 209A (209A order). We affirm.
The defendant is an attorney licensed to practice in New York and Connecticut.
Background. After statements by the defendant caused the plaintiff, J.B., to fear for her safety and the safety of her unborn child, she obtained an ex parte 209A order on November 7, 2019. Approximately one month later, at a hearing on an extension of the 209A order, the defendant assented to the extension subject to certain conditions. The plaintiff did not agree to the conditions. The judge, concluding that the plaintiff failed to meet her burden of proof, declined to extend the 209A order. On March 16, 2020, the defendant filed a motion to expunge the 209A order from his record, arguing that it was obtained by the plaintiff's commission of fraud on the court. Following a hearing, the judge denied the motion to expunge. This appeal followed.
The judge, however, issued a no contact order.
Discussion. On appeal, the defendant purports to raise thirty-two issues for our consideration. Many of these claims raise issues that are either moot or time barred. Here, we review whether the judge erred by denying the defendant's motion to expunge. There was no error.
Notably, while the defendant's notice of appeal encompasses the ex parte 209A order, an appeal from that order is moot. See Allen v. Allen, 89 Mass. App. Ct. 403, 405-406 (2016). Any appeal from that order dated November 7, 2019, also is untimely, as is any appeal from the order dated December 3, 2019. See Mass. R. A. P. 4 (a) (1), as appearing 481 Mass. 1606 (2019).
The defendant also appealed from the denial of his motion to compel production of subpoenaed documents, which he claimed were relevant to his motion to expunge. Assuming without deciding that this portion of the appeal is properly before us, we discern no error.
In Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006), this court held "that a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court."
" ‘[F]raud 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 Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598 (1994).
Although the defendant's brief is far from a model of clarity, he contends that the plaintiff obtained the 209A order with numerous perjurious statements. The judge, however, did not find that the plaintiff engaged in "systemic or egregious" conduct amounting to fraud on the court. M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 344 (2016). Rather, the judge found that the plaintiff demonstrated a reasonable "fear of imminent harm to her and her unborn child's well-being to obtain the 209A order."
Our role as a reviewing court is not to reassess credibility determinations made by a trial judge, nor is it to decide whether we would have issued the 209A order in the first instance. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006) ("We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor,’ ... the utmost deference" [citations omitted]). Moreover, the defendant fails to "distinguish between a false allegation, on the one hand, and a deliberate scheme, on the other, typically involving others in the court system, combined with a larger pattern of harassment, that has been held to constitute fraud on the court." , M.C.D., 90 Mass App. Ct. at 342.
Any additional claims that we have not addressed "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
The plaintiff's request for appellate attorney's fees and costs is denied.
Order dated June 8, 2020, denying motion to expunge G. L. c. 209A order affirmed.