S.M. v. E.N. (2024)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, E.N., appeals from an order denying a request to expunge a harassment prevention order (issued under G. L. c. 258E) from the Statewide domestic violence record keeping system (DVRS) maintained by the Commissioner of Probation. We affirm.

On October 24, 2022, a District Court judge issued an ex parte harassment prevention order based on sworn statements of the plaintiff, S.M., alleging that the defendant attacked her at an Octoberfest music festival. Following a two-party hearing where the plaintiff testified on November 2, 2022, a second judge extended the order for six months. On February 16, 2023, the second judge vacated the order on a motion of the defendant. Treating the defendant's motion as a motion for reconsideration, the second judge concluded the evidence demonstrated a single act that “did not satisfy the requirement that the defendant engage in three or more acts constituting harassment.” The second judge denied the defendant's motion to expunge because the defendant did not show the order was obtained through fraud upon the court, and the testimony of the plaintiff “was found to be credible and was simply insufficient to sustain the [p]laintiff's burden of proof.”

On appeal, the defendant contends that expungement is the appropriate remedy because the judges initially misapprehended the requirement that an order under G. L. c. 258E requires three or more incidents of harassment. Expungement of a c. 258E order, however, “is available only in the rare and limited circumstance where it was obtained through fraud on the court.” J.S.H. v. J.S., 91 Mass. App. Ct. 107, 107 (2017). “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 112, quoting Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 729-730 (2006). Examples of such fraud include bribing judges and jurors, presenting forged letters and fabricated email messages, or engaging in a calculated pattern of false statements. See J.S.H., supra at 112. Based upon the governing standard and a review of the evidence presented, we discern no error in the second judge's conclusion that the record lacked any evidence of fraud on the court that would warrant expungement.

Order denying motion to expunge affirmed.