NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-626
B.G.
vs.
N.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, N.M., appeals from four orders relating to
an abuse prevention order obtained by the plaintiff, B.G.,
pursuant to G. L. c. 209A, § 3: (1) the initial extension of
the abuse prevention order, which occurred on October 3, 2022
(initial extension order); (2) the denial of a motion for
reconsideration of the initial extension order on January 19,
2023; (3) the subsequent extension of the abuse prevention
order, which occurred on April 3, 2023 (subsequent extension
order); and (4) the denial of a motion for expungement of
associated records from the Statewide domestic violence record- keeping system also on April 3, 2023.1 We dismiss the appeal
from the initial extension order as untimely. We affirm the
remaining orders.
Discussion. 1. Initial extension order. As a preliminary
matter, we note that the defendant did not timely appeal from
the initial extension order. Pursuant to Mass. R. A. P.
(4) (a) (1), as appearing in 481 Mass. 1606 (2019), an appeal in
a civil case must be filed within thirty days of the entry of
the appealable order. The filing of a motion "to alter or amend
a judgment under [r]ule 59 or for relief from judgment under
[r]ule 60 (b), however titled," may toll the time period for an
appeal, "but only if either motion is served within [ten] days
after entry of judgment." Mass. R. A. P. 4 (a) (2) (C), as
appearing in 481 Mass. 1606 (2019). "A timely notice of appeal
is a jurisdictional prerequisite to our authority to consider
any matter on appeal." Wells Fargo Bank, N.A. v. Sutton, 103
Mass. App. Ct. 148, 152 (2023), quoting DeLucia v. Kfoury, 93
Mass. App. Ct. 166, 170 (2018).
The defendant filed his motion for reconsideration under
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), on November 2,
2022, which was greater than ten days after the initial
1 The same judge entered the first two orders and a second judge entered the April 3, 2023 orders.
2 extension order.2 Therefore, the motion for reconsideration
failed to toll the time period for an appeal from the initial
extension order; the notice of appeal from the initial extension
order, filed on January 27, 2023, was untimely; and we lack
jurisdiction to consider it.3
2. Motion for reconsideration. With respect to the
initial extension order, our review is limited to the judge's
decision to deny the defendant relief pursuant to rule 60 (b).
See Care & Protection of Georgette, 54 Mass. App. Ct. 778, 788
n.15 (2002), S.C., 439 Mass. 28 (2003) ("the appeal of an order
denying relief under rule 60 [b] raises only the correctness of
2 We recognize that the motion need only be served within the ten-day period. See Mass. R. A. P. 4 (a) (2) (C). However, no certificate of service appears on the motion either in the copy that was included the record appendix or in the copy that we obtained on our own initiative from the District Court. In the absence of a certificate of service for the motion for reconsideration identifying the service date, we treat the motion as having been served on the date it was filed.
3 With respect to the initial extension order, the defendant argues that (1) he "did not receive full due process" because (a) the plaintiff's "falsification of evidence" prevented him from receiving a "fair hearing," and (b) "[t]he defendant did not have a meaningful opportunity to respond to the plaintiff's accusations"; and (2) the judge erred by "failing to equitably apply the law and facts favorable to the defendant, [and] . . . to recognize that the plaintiff's retaliatory order provided an unfair advantage in the 209A proceedings," particularly by the judge's failure to "recognize that the defendant was placed in fear of imminent physical harm from the plaintiff's abuse immediately preceding the moments she described as abusive." For the reasons described, supra, we lack jurisdiction to consider these claims.
3 that denial, and the appellant may not attack the underlying
judgment on a ground which []he might have raised had []he
appealed"). We review the denial of a rule 60 (b) motion for
abuse of discretion. See Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Dep't of Developmental Servs., 492 Mass.
772, 785 (2023). Applying this standard, we do not ask whether
a "reviewing court might have reached a different result; the
standard of review is not substituted judgment" (citation
omitted). Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass.
155, 160 (1987). Instead, we ask whether the judge made a
"clear error of judgment" in applying the relevant law. L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto
v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
The defendant contends that the judge erred in denying the
motion for reconsideration because the initial extension order
was obtained by fraud. See Mass. R. Civ. P. 60 (b) (3) (relief
from judgment available based on "fraud . . . ,
misrepresentation, or other misconduct of an adverse party").
"A party seeking to demonstrate fraud on the court must prove
the most egregious conduct involving a corruption of the
judicial process itself" (citation and quotation omitted).
Sahin v. Sahin, 435 Mass. 396, 406 (2001). To establish fraud
on the court, the defendant must "clearly and convincingly"
demonstrate "that [the plaintiff] has sentiently set in motion
4 some unconscionable scheme calculated to interfere with the
judicial system's ability impartially to adjudicate a matter by
improperly influencing the trier or unfairly hampering the
presentation of the opposing party's claim or defense" (citation
omitted). Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct.
340, 349 (2010). "Clear and convincing proof . . . must be
strong, positive and free from doubt[,] and full, clear and
decisive" (quotations and citations omitted). Callahan v.
Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977).
The defendant asserts that the plaintiff committed fraud on
the court by submitting false and misleading affidavits and
presenting false and misleading testimony in connection with the
initial extension order. In support of his argument, the
defendant first cites Rockdale Mgt. Co. v. Shawmut Bank, N.A.,
418 Mass. 596, 599-600 (1994) (Rockdale), for the proposition
that "fraud on the court has been warranted for creating and
presenting false evidence in support of a claim or defense,
. . .
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NOTICE: 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-626
B.G.
vs.
N.M.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, N.M., appeals from four orders relating to
an abuse prevention order obtained by the plaintiff, B.G.,
pursuant to G. L. c. 209A, § 3: (1) the initial extension of
the abuse prevention order, which occurred on October 3, 2022
(initial extension order); (2) the denial of a motion for
reconsideration of the initial extension order on January 19,
2023; (3) the subsequent extension of the abuse prevention
order, which occurred on April 3, 2023 (subsequent extension
order); and (4) the denial of a motion for expungement of
associated records from the Statewide domestic violence record- keeping system also on April 3, 2023.1 We dismiss the appeal
from the initial extension order as untimely. We affirm the
remaining orders.
Discussion. 1. Initial extension order. As a preliminary
matter, we note that the defendant did not timely appeal from
the initial extension order. Pursuant to Mass. R. A. P.
(4) (a) (1), as appearing in 481 Mass. 1606 (2019), an appeal in
a civil case must be filed within thirty days of the entry of
the appealable order. The filing of a motion "to alter or amend
a judgment under [r]ule 59 or for relief from judgment under
[r]ule 60 (b), however titled," may toll the time period for an
appeal, "but only if either motion is served within [ten] days
after entry of judgment." Mass. R. A. P. 4 (a) (2) (C), as
appearing in 481 Mass. 1606 (2019). "A timely notice of appeal
is a jurisdictional prerequisite to our authority to consider
any matter on appeal." Wells Fargo Bank, N.A. v. Sutton, 103
Mass. App. Ct. 148, 152 (2023), quoting DeLucia v. Kfoury, 93
Mass. App. Ct. 166, 170 (2018).
The defendant filed his motion for reconsideration under
Mass. R. Civ. P. 60 (b), 365 Mass. 828 (1974), on November 2,
2022, which was greater than ten days after the initial
1 The same judge entered the first two orders and a second judge entered the April 3, 2023 orders.
2 extension order.2 Therefore, the motion for reconsideration
failed to toll the time period for an appeal from the initial
extension order; the notice of appeal from the initial extension
order, filed on January 27, 2023, was untimely; and we lack
jurisdiction to consider it.3
2. Motion for reconsideration. With respect to the
initial extension order, our review is limited to the judge's
decision to deny the defendant relief pursuant to rule 60 (b).
See Care & Protection of Georgette, 54 Mass. App. Ct. 778, 788
n.15 (2002), S.C., 439 Mass. 28 (2003) ("the appeal of an order
denying relief under rule 60 [b] raises only the correctness of
2 We recognize that the motion need only be served within the ten-day period. See Mass. R. A. P. 4 (a) (2) (C). However, no certificate of service appears on the motion either in the copy that was included the record appendix or in the copy that we obtained on our own initiative from the District Court. In the absence of a certificate of service for the motion for reconsideration identifying the service date, we treat the motion as having been served on the date it was filed.
3 With respect to the initial extension order, the defendant argues that (1) he "did not receive full due process" because (a) the plaintiff's "falsification of evidence" prevented him from receiving a "fair hearing," and (b) "[t]he defendant did not have a meaningful opportunity to respond to the plaintiff's accusations"; and (2) the judge erred by "failing to equitably apply the law and facts favorable to the defendant, [and] . . . to recognize that the plaintiff's retaliatory order provided an unfair advantage in the 209A proceedings," particularly by the judge's failure to "recognize that the defendant was placed in fear of imminent physical harm from the plaintiff's abuse immediately preceding the moments she described as abusive." For the reasons described, supra, we lack jurisdiction to consider these claims.
3 that denial, and the appellant may not attack the underlying
judgment on a ground which []he might have raised had []he
appealed"). We review the denial of a rule 60 (b) motion for
abuse of discretion. See Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Dep't of Developmental Servs., 492 Mass.
772, 785 (2023). Applying this standard, we do not ask whether
a "reviewing court might have reached a different result; the
standard of review is not substituted judgment" (citation
omitted). Scannell v. Ed. Ferreirinha & Irmao, LDA, 401 Mass.
155, 160 (1987). Instead, we ask whether the judge made a
"clear error of judgment" in applying the relevant law. L.L. v.
Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto
v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
The defendant contends that the judge erred in denying the
motion for reconsideration because the initial extension order
was obtained by fraud. See Mass. R. Civ. P. 60 (b) (3) (relief
from judgment available based on "fraud . . . ,
misrepresentation, or other misconduct of an adverse party").
"A party seeking to demonstrate fraud on the court must prove
the most egregious conduct involving a corruption of the
judicial process itself" (citation and quotation omitted).
Sahin v. Sahin, 435 Mass. 396, 406 (2001). To establish fraud
on the court, the defendant must "clearly and convincingly"
demonstrate "that [the plaintiff] has sentiently set in motion
4 some unconscionable scheme calculated to interfere with the
judicial system's ability impartially to adjudicate a matter by
improperly influencing the trier or unfairly hampering the
presentation of the opposing party's claim or defense" (citation
omitted). Mt. Ivy Press, L.P. v. Defonseca, 78 Mass. App. Ct.
340, 349 (2010). "Clear and convincing proof . . . must be
strong, positive and free from doubt[,] and full, clear and
decisive" (quotations and citations omitted). Callahan v.
Westinghouse Broadcasting Co., 372 Mass. 582, 584 (1977).
The defendant asserts that the plaintiff committed fraud on
the court by submitting false and misleading affidavits and
presenting false and misleading testimony in connection with the
initial extension order. In support of his argument, the
defendant first cites Rockdale Mgt. Co. v. Shawmut Bank, N.A.,
418 Mass. 596, 599-600 (1994) (Rockdale), for the proposition
that "fraud on the court has been warranted for creating and
presenting false evidence in support of a claim or defense,
. . . destroying evidence and otherwise impeding the discovery
process, [and] offering false and misleading testimony."
However, the defendant's reliance on Rockdale is misplaced.
Unlike in Rockdale, where the motion judge dismissed the action
for fraud on the court after discovering that one of the
plaintiffs had "forged a letter . . . in an effort to prove
damages, . . . testified under oath as to the authenticity of
5 the letter, and . . . admitted the forgery only after the
deposition testimony of the nominal author of the letter
revealed the deception," id. at 599, the judge in the present
case made no finding of fraud. See id. at 600 n.2 ("there
exists a significant distinction between fraud on the court
discovered before the entry of a judgment in an action, and
fraud discovered after the entry of a judgment. Our discussion
has [focused] on and is limited to the former"). Therefore, the
discussion in Rockdale is inapplicable to the present case.
Next, the defendant cites Commissioner of Probation v.
Adams, 65 Mass. App. Ct. 725, 730 (2006), for the proposition
that the finding of a pattern of false and perjurious statements
that influences the judge will amount to fraud on the court.
This claim is inaccurate for two reasons. First, the judge in
Adams found not only that the plaintiff had made a series of
false statements, but also that they had engaged in "a larger
pattern of harassment[,] . . . falsely complained of [the
defendant (an attorney)] to the Board of Bar Overseers[, and]
. . . obtained the ex parte order against [the defendant]
'without disclosing that [the defendant] had a restraining order
against [the plaintiff].'" Id. at 729. Second, in Adams, this
court addressed only the judicial response to a finding of fraud
on the court; the underlying finding of fraud was not raised on
appeal. See id. at 725.
6 Here, unlike in Rockdale and Adams, the judge explicitly
found that "no misleading evidence was submitted by an adverse
party, and [that] the court was not misled by the evidence."
Furthermore, the defendant supports his claim of fraud on the
court only with an alleged series of false and misleading
statements and exhibits; the defendant does not argue in his
brief that the plaintiff engaged in conduct that actually had
the effect of interfering with the judicial system's ability to
impartiality adjudicate the matter. See Mt. Ivy Press, L.P., 78
Mass. App. Ct. at 349. See also Wojcicki v. Caragher, 447 Mass.
200, 210 (2006), quoting MacDonald v. MacDonald, 407 Mass. 196,
202 (1990) ("Examples are bribery of judges, employment of
counsel to 'influence' the court, bribery of the jury, and the
involvement of an attorney [an officer of the court] in the
perpetration of fraud"). "[E]ven '[p]erjury does not constitute
"fraud upon the court"' when there is no evidence that the
judicial process itself was corrupted" (citation omitted).
Wojcicki, supra. The judge reasonably could determine that the
defendant failed to establish fraud on the court by clear and
convincing evidence. The judge did not abuse her discretion in
denying the defendant's motion for reconsideration.
3. Subsequent extension order. The defendant contends
that the issuance of the subsequent extension order failed to
comply with G. L. c. 209A, § 3, which states that "[a] court may
7 issue a mutual restraining order . . . only if the court has
made specific written findings of fact." However, this issue is
not properly before us. See Carey v. New England Organ Bank,
446 Mass. 270, 285 (2006), quoting Century Fire & Marine Ins.
Corp. v. Bank of New England-Bristol County, N.A., 405 Mass.
420, 421 n.2 (1989) ("An issue not raised or argued below may
not be argued for the first time on appeal"). Although the
defendant requested findings of fact in connection with the
motion for expungement,4 the defendant did not provide the judge
with legal argument that the absence of specific written
findings of fact statutorily precluded the issuance of the
subsequent extension order. Therefore, we deem this issue
waived.
Next, the defendant claims that he was not provided "a
meaningful opportunity to be heard," see Idris I. v. Hazel H.,
100 Mass. App. Ct. 784, 788 (2022), at the extension hearing on
April 3, 2023, because he was "not afforded an opportunity to
respond to false information" presented during the hearing. We
deem this issue waived as well, as our review of the record
reveals that the defendant has not previously raised the
4 In his motion for expungement, the defendant requested "findings of fact and a ruling of law with the decision," and, in response to the judge's denial of the motion for expungement at the April 3, 2023 hearing, the defendant requested "a ruling of the law as to the finding of facts."
8 argument that he was not provided a meaningful opportunity to be
heard at the April 3, 2023 extension hearing. See Carey, 446
Mass. at 285.
Finally, the defendant claims that the judge erred in
issuing the subsequent extension order because he failed to
"take into account that the [initial extension order] was issued
erroneously." The defendant cites no legal authority in support
of the proposition that a judge, in extending an abuse
prevention order, must inquire into the validity of a prior,
underlying extension order. Under Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), an
appellant's brief must support each contention "with citations
to the authorities . . . on which the appellant relies."
Because the argument is not adequately argued in the defendant's
brief, it too is waived.
4. Motion for expungement. The defendant claims that the
judge erred in denying the motion for expungement, as Adams
"established that expungement of 209A orders from the Statewide
domestic violence registry is appropriate in circumstances where
fraud on the court has been demonstrated through clear and
convincing evidence."
Here, the judge did not find fraud on the court, and as
discussed, supra, she did not abuse her discretion in denying
the motion for reconsideration. Therefore, the judge did not
9 err in denying the defendant's motion for expungement.5 See
Adams, 65 Mass. App. Ct. at 737 ("a judge has the inherent
authority to expunge a record of a 209A order from the Statewide
domestic violence registry system 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").
Conclusion. The appeal from the initial extension order
entered October 3, 2022, is dismissed as untimely. The order
entered January 19, 2023, denying the motion for reconsideration
is affirmed. The subsequent extension order and the order
denying the motion for expungement, both entered April 3, 2023,
are affirmed.
So ordered.
By the Court (Meade, Hershfang & Toone, JJ.6),
Clerk
Entered: October 31, 2024.
5 The plaintiff has requested "just damages and single or double costs" pursuant to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). As a matter of our discretion, we deny the request. We also deny the defendant's request for attorney's fees.
6 The panelists are listed in order of seniority.