B.C. v. F.C. (Lawyers Weekly No. 11-134-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1067 Appeals Court B.C. vs. F.C. No. 15-P-1067. Norfolk. June 2, 2016. – September 23, 2016. Present: Kafker, C.J., Hanlon, & Neyman, JJ. Abuse Prevention. Domestic Violence Record Keeping System. Complaint for protection from abuse filed in the Norfolk Division of the Probate and Family Court Department on July 8, 2011. A motion to expunge the record, filed on March 5, 2015, was heard by George F. Phelan, J., and questions of law were reported by him. Natalie L. Lorenti, Special Assistant Attorney General (Sarah M. Joss with her) for Commissioner of Probation. Scott C. Gladstone for B.C. & another. HANLON, J. We are asked by a judge of the Probate and Family Court to answer two questions of law, reported under rule 5 of the Massachusetts Rules of Appellate Procedure,[1] as amended, 378 Mass. 930 (1979), regarding the inherent authority of a trial judge to order the expungement of an abuse prevention order issued pursuant to G. L. c. 209A (order) from the Statewide domestic violence registry system (registry), and to clarify the type of fraud on the court that would warrant expungement. The case was reported after a final disposition in the trial court,[2] and therefore, we consider the report equivalent to a notice of appeal and proceed under our standard appellate procedure; we accept the judge’s designation of the Commissioner of Probation (commissioner) as the appellant.[3] See Mass.R.A.P. 5.[4] Here, although the judge ordered expungement, he did not find by clear and convincing evidence that the order was obtained through a fraud on the court. For this reason, he lacked the authority to override the statutory requirement that a computerized record of any abuse prevention order be maintained in the registry. See Silva v. Carmel, 468 Mass. 18, 24-25 (2014); Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006); Quinn v. Gjoni, 89 Mass. App. Ct. 408, 414, n.14 (2016). As a result, the judge’s order to expunge the order from the registry must be vacated. Background. The judge found the following facts, which the parties do not challenge.[5] On July 8, 2011, the order was issued after the judge found the plaintiff credible based on the “complaint, her affidavit, and her testimony under oath.”[6] At the hearing after notice held on July 14, […]