L.O. v. G.O. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This panel issued an unpublished decision pursuant to rule 1:28 on this appeal on May 12, 2020. See L.O. v. G.O., 97 Mass. App. Ct. 1116 (2020). In that decision, we vacated the May 30, 2019 G. L. c. 209A order against the defendant. We noted that the earlier March 26, 2019 c. 209A order against the defendant also was erroneous, but that the defendant did not notice an appeal from that order.

The pro se defendant moves for reconsideration, requesting that we also vacate the March 26, 2019 order. Having reconsidered, we now treat the defendant's June 3, 2019 notice of appeal as appealing from both the May 30, 2019, and the March 26, 2019, orders. See Guardianship of Kelvin, 94 Mass. App. Ct. 448, 451 n.8 (2018). In addition, we exercise our authority to enlarge the time for filing a notice of appeal of the March 26, 2019 order, nunc pro tunc, to June 3, 2019, for good cause shown. See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626 (2019); Eyster v. Pechenik, 71 Mass. App. Ct. 773, 781 (2008). We deem the defendant to have moved to file a late notice of appeal, which we grant, rendering the June 3 notice of appeal timely. Eyster, supra. Accordingly, the order of March 26, 2019, is vacated. The District Court shall notify the appropriate law enforcement agency of this decision in accordance with G. L. c. 209A, § 7, and shall direct that agency to destroy all record of the vacated order.² ,  ²

So ordered.

Vacated

FOOTNOTES

2.   The defendant's motion also requests vacatur of the initial ex parte order entered against him in this matter. The defendant is “not entitled to appellate review of the ex parte order.” R.S. v. A.P.B., 95 Mass. App. Ct. 372, 372 n.1 (2019).

2.   To the extent that the defendant now seeks broader relief -- such as an order to have the record of any or all of the orders expunged from the Statewide domestic violence registry -- that request is denied. To obtain expungement the defendant would have to meet the heavy burden of showing fraud on the court. See M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 341 (2016). The defendant has not argued, nor has he shown, that the plaintiff obtained the orders by committing fraud on the court.