M.C.D. v. D.E.D. (Lawyers Weekly No. 11-135-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1537 Appeals Court M.C.D. vs. D.E.D. No. 15-P-1537. Essex. June 2, 2016. – September 23, 2016. Present: Kafker, C.J., Hanlon, & Neyman, JJ. Abuse Prevention. Domestic Violence Record Keeping System. Fraud. Practice, Civil, Notice of appeal, Fraud. Complaint for protection from abuse filed in the Essex Division of the Probate and Family Court Department on December 15, 2014. A motion to vacate the abuse prevention order and to expunge the record, filed on March 6, 2015, was heard by Theresa A. Bisenius, J. Natalie L. Lorenti, Special Assistant Attorney General (Sarah M. Joss with her) for Commissioner of Probation. D.E.D., pro se. HANLON, J. In this cross appeal, the Commissioner of Probation (commissioner) appeals from an order of a Probate and Family Court judge to expunge a G. L. c. 209A abuse prevention order (209A order) entered against the defendant. The commissioner challenges the judge’s findings that the plaintiff’s allegations of abuse were knowingly false and constituted a fraud on the court, as explained in Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 729-730 (2006). We agree that the judge’s subsidiary findings were insufficient to support her ultimate finding of fraud on the court, and we vacate the order for expungement.[1] Background. The plaintiff obtained the ex parte 209A order against the defendant on December 15, 2014. She alleged in her affidavit that, on December 3, 2014, the defendant had beaten her and that she was in fear of him. At the ex parte hearing, the plaintiff barely spoke, but her lawyer told the judge that his client had been beaten and that she was extremely reluctant to talk about the incident, but that the people who had treated her medically, as well as members of her family, believed that her injuries could not have been the result of a fall and were, in fact, the result of serious abuse.[2] On December 22, 2014, the day scheduled for the hearing after notice, the plaintiff did not appear and an associate of her lawyer appeared for her. The defendant was represented by counsel, who immediately informed the judge that her client was “an Assistant City Solicitor for [a city in Massachusetts].” She represented that she had “[overwhelming] evidence that . . . this allegation never . . . happened, that [D.E.D.] […]