J.D. v. A.M. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2017 the plaintiff obtained a harassment prevention order under G. L. c. 258E against the defendant. On the defendant's appeal from that order, a panel of this court concluded that the plaintiff failed to prove three qualifying acts of harassment and remanded the case to the District Court with instructions to vacate the c. 258E order and to notify the appropriate law enforcement agency to destroy all records of the order. See J.D. v. A.M., 95 Mass. App. Ct. 1103 (2019) (rule 1:28 decision). The defendant then filed a motion to expunge in the District Court, arguing that she was entitled to such relief based on the rule 1:28 decision. A judge denied the motion, and the defendant appeals from the order denying her motion to expunge.

“[A] judge has the inherent authority to expunge the record of a c. 258E order only ‘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.’ ” J.S.H. v. J.S., 91 Mass. App. Ct. 107, 112 (2017), quoting Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006). Here, we discern no error in the judge's determination that the defendant failed to meet her heavy burden of proving fraud on the court. As the judge observed, the rule 1:28 decision contained no suggestion that the plaintiff procured the c. 258E order through fraud. Rather, the panel concluded that, although the defendant committed at least one serious act of harassment against the plaintiff, one of the other alleged acts was directed at the plaintiff's daughter, rather than the plaintiff herself. That “there was insufficient legal or factual basis for the c. 258E order to have issued” does not entitle the defendant to expungement. J.S.H., supra at 113. Because the defendant failed to make “a clear and convincing showing of fraud on the court,” id., the judge properly denied her motion to expunge.²

Order denying motion to expunge affirmed.

FOOTNOTES

2.   After this appeal entered, the defendant filed a motion in the District Court for an order directing the local police department to destroy all records of the c. 258E order. A different judge commenced a hearing on the motion, but ultimately took no action given the pendency of this appeal. That decision, to the extent the defendant challenges it, is not properly before us. Our disposition here is without prejudice, however, to the defendant's renewing her motion in the District Court after issuance of the decision.