Opinion
20-P-1397
06-28-2022
R.S. v. W.S.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After an adversary hearing, a District Court judge vacated an ex parte G. L. c. 209A restraining order previously issued against the defendant (ex parte order). The defendant nevertheless appeals, because even though the ex parte order was vacated, the judgment did not order expungement of the corresponding record from the Statewide domestic violence record-keeping system (DVRS). The defendant argues that the ex parte order should be considered "nugatory" because it issued despite clear violations of the procedural requirements of G. L. c. 209A, § 5. He contends that under the circumstances, his appeal from the ex parte order is not moot, and the DVRS record of the ex parte order should be expunged.
As we observed in Allen v. Allen, 89 Mass.App.Ct. 403, 405-406 (2016), however, an ex parte order is moot where the judge subsequently held a hearing attended by both parties, vacated the ex parte order, and directed law enforcement to destroy all records of the order. The defendant also cannot obtain expungement of the DVRS record of the ex parte order where, as here, there has been no showing of fraud on the court. We therefore affirm.
Background.
According to police reports in the record before us, on April 9, 2020, police officers were dispatched to a residence in Peabody, where they were told by the plaintiff, an elderly woman, that her son, the defendant, had threatened to come to her home and take her vehicle. The plaintiff also alleged that the defendant had stolen vehicles from her in the past, and described several ongoing property disputes with the defendant. When the defendant arrived, he told the officers that he only planned to tow his mother's car off his adjoining property. An officer moved the car in question without incident, and advised the plaintiff that she "may want to consider a restraining order at some point."
The defendant submitted the police reports as exhibits to his motion to dismiss, vacate, and expunge. Nothing in the appellate record shows what evidence was presented to the judge at the time he granted the ex parte order.
At 6:30 P.M. that evening, the plaintiff and her power of attorney arrived at the police station requesting an emergency abuse prevention order under G. L. c. 209A. With the officer's assistance, they telephoned the on-call judge, who spoke with the plaintiff and then issued the ex parte order against the defendant.
The ex parte order set a subsequent hearing date for April 21, 2020, but the hearing was continued several times due to the COVID-19 pandemic. In July 2020, while awaiting the hearing, the defendant filed in the District Court a motion for leave to file an interlocutory appeal, and a motion to stay pending appeal. The defendant's motions argued that the ex parte order was invalid because the plaintiff had not complied with G. L. c. 209A, § 5; in particular, the ex parte order was granted without the filing of a complaint, yet the plaintiff had failed to "appear in court on the next available business day to file said complaint." G. L. c. 209A, § 5. Indeed, the plaintiff apparently never filed a complaint or supporting affidavit, and there is no record of the basis for granting the ex parte order. The judge denied the motion to stay, and took no action on the motion for leave to file an interlocutory appeal.
He also filed a "Notice of Interlocutory Appeal" on July 21, 2020.
The docket contains entries indicating a complaint and supporting affidavit were filed on April 10, 2020, but no documents in the record are associated with those entries. The defendant asserts in his brief that the plaintiff did not file an affidavit or statement setting forth the grounds for seeking the ex parte order.
Thereafter, but before the adversary hearing took place, the defendant filed a "motion to dismiss . . ., vacate, and expunge" the ex parte order. In the motion, the defendant again argued that procedural violations attended the grant of the ex parte order. The plaintiff opposed the motion, but did not contend that she had filed the required written complaint. The judge held the adversary hearing on August 13, 2020, both parties appeared, and thereafter the judge entered the order vacating the ex parte order. The judge's order also directed law enforcement agencies to "destroy all records of such Order." The defendant then filed the extant notice of appeal.
The defendant did not include a transcript of the August 13, 2020 hearing in the appellate record.
Discussion.
1. Mootness.
The defendant argues that he "has the right to appeal" the ex parte order because he filed a notice of appeal prior to the adversary hearing at which the ex parte order was vacated. Leaving aside the possibility of expungement of the DVRS record, which we discuss in greater detail below, we conclude that this appeal is moot.
This case is controlled by Allen, 89 Mass.App.Ct. 403. In Allen, the judge issued an ex parte order, but thereafter terminated the ex parte order after a hearing attended by both parties. Id. at 404. The defendant nevertheless appealed, seeking to overturn the entry of the ex parte order. See Id. at 403. We held that "the hearing after notice, with its resulting judicial determination that the order should be terminated and not extended, and its directive to law enforcement agencies to destroy all record of it, provided the defendant with the only relief she could obtain." Id. at 405-406. We reasoned that because no additional relief could be obtained "even by means of a successful appeal," the appeal was moot. Id. at 406.
The facts here are not materially distinguishable from Allen. After a hearing attended by both parties, the judge vacated the ex parte order and directed law enforcement to destroy all records of the order. Under the circumstances, "[t]he defendant therefore has obtained all the relief to which he could be entitled, and he no longer has a cognizable interest in whether the order was lawfully issued." Quinn v. Gjoni, 89 Mass.App.Ct. 408, 414 (2016).
"In the context of c. 209A orders, trial courts use 'vacate' and 'terminate' interchangeably." Quinn v. Gjoni, 89 Mass.App.Ct. 408, 414 n.13 (2016).
The fact that the defendant filed a notice of appeal prior to the adversary hearing does not alter our conclusion. It is true that a defendant may seek appellate review of an ex parte order if there has been no subsequent hearing -- for example, if the order expires by its own terms. C,R.S. v. J.M.S., 92 Mass.App.Ct. 561, 565 (2017). However, once such a hearing attended by both parties has occurred, the defendant "does not have . . . the right to relitigate the issuance of the ex parte order itself, because the matter is moot: the ex parte order has been superseded by the order after notice." Id. Our cases hold that, with one narrow exception, there is no further relief to be had.
We note also that the only relief a defendant can achieve through appealing an expired ex parte order is for the judge to vacate the ex parte order and direct law enforcement to destroy their records -- it does not extend to expunging the DVRS. Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 638 (1998).
2. Expungement.
The one narrow exception, where a defendant might obtain further relief, involves the possibility that the defendant can obtain an order of expungement from the DVRS records. In this case the defendant did move in the District Court for expungement of the DVRS record, which the judge did not grant. The defendant accordingly argues that his appeal is not moot.
The defendant is not entitled to expungement, because expungement is only available in the narrow circumstance where the defendant demonstrates that the plaintiff perpetrated fraud on the court in obtaining the 209A order. Commissioner of Probation v. Adams, 65 Mass.App.Ct. 725, 737 (2006). The DVRS is a statutorily-mandated database maintained by the commissioner of probation. G. L. c. 209A, § 7. In Vaccaro v. Vaccaro, 425 Mass. 153, 157 (1997), the Supreme Judicial Court reasoned that "[t]he Legislature's express directive . . . that a computerized record be kept in the system of all orders, inactive as well as active, and the absence of any provision for removal or authority for expungement, reflects a deliberate legislative decision that all records be available for review" by government officials authorized to do so. The Court also noted that "[b]ecause a fair proportion of such vacated orders may include a high level of abuse, inclusion of vacated orders in the system can provide meaningful information, notwithstanding their inactive status and regardless of the reason for termination." Id. at 158 n.5. The Court accordingly held that a DVRS record could not be expunged. Id. at 155, 157.
The DVRS is accessible only by judges and law enforcement officials. Vaccaro, 425 Mass. at 155.
We recognized an exception to this rule in Adams, 65 Mass.App.Ct. at 737, but we were careful to emphasize that it is "rare and limited." In Adams, a judge granted a motion to expunge all records of an abuse prevention order -- including from the DVRS -- after finding that the plaintiff had made numerous false statements under oath when obtaining that order. Id. at 726 & n.2. Although G. L. c. 209A, § 7 generally does not authorize expungement of DVRS records, we concluded that judges have inherent powers "to prevent fraud on the court, because allowing the court to be manipulated by fraud poses a danger to [the court's] authority." Id. at 729-730. Therefore, a judge may order expungement of a DVRS record "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." Id. at 737.
Here, the defendant did not present any evidence or argument that the plaintiff committed fraud in procuring the ex parte order. Rather, the defendant argues that expungement should be available to correct alleged collateral consequences (the DVRS record) resulting from a procedurally deficient ex parte order.
Procedural deficiencies, however, do not involve the same concerns posed by fraud on the court that we confronted in Adams. Whereas a fraudulently obtained order does not convey any valuable information to law enforcement, a procedurally deficient abuse prevention order may do so, in the same ways recognized in Vaccaro, 425 Mass. at 157 n.5. See Adams, 65 Mass.App.Ct. at 733-734. See also Silva v. Carmel, 468 Mass. 18, 19 & 25 (2014) (vacating abuse prevention order issued to a non "household member" but rejecting expungement). The procedural deficiencies the defendant identifies are therefore not grounds for expunging the DVRS record.
Conclusion.
The appeal from so much of the August 13, 2020 order that vacated the ex parte G. L. c. 209A order is dismissed as moot. In all other respects, the August 13, 2020 order is affirmed.
So ordered.
Massing, Singh & Englander, JJ.
The panelists are listed in order of seniority.