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-1202
S.H.
vs.
M.T.M. (and a consolidated case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff obtained abuse prevention orders against the
defendants pursuant to G. L. c. 209A. The following year, a
judge made the orders permanent. The defendants did not appeal
from that decision. Several years later, the defendants moved
to vacate the permanent abuse prevention orders. The judge
denied their motion to vacate. On appeal, the defendants argue
that the judge deprived them of due process of law by precluding
them from presenting evidence that the original abuse prevention
orders were procured by fraud on the court. They also argue
that they lacked notice of the hearing to extend the orders. We
affirm.
1 S.H. vs. D.B. Background. The plaintiff filed a complaint for an
emergency abuse prevention order against each defendant in 2017.
Following a two-party hearing, a judge extended the abuse
prevention orders for one year. The clerk told the parties on
the record that a hearing would be held the following year on
August 14, 2018, to determine whether to further extend the
orders. The clerk advised the parties of the date, time, and
location of the hearing. The clerk stated that a court officer
would serve the defendants with the abuse prevention orders,
which listed the hearing date. The defendants did not appear at
the August 2018 hearing. The plaintiff appeared at the hearing
and submitted an affidavit alleging violations of the abuse
prevention orders. The orders were made permanent. The
defendants did not appeal.
In 2023, the pro se defendants filed a self-styled "Motion
to Modify or Terminate Abuse Prevention Order."2 In it, the
defendants contended that the permanent abuse prevention orders
must be vacated. Although the defendants argued that they
lacked notice of the August 2018 hearing, they focused their
arguments on the allegation that the plaintiff committed a fraud
2 The judge construed the motion as a motion to vacate the permanent abuse prevention orders. The defendants also used the term "motion to vacate" during the hearing.
2 on the court to obtain the abuse prevention orders.
Specifically, the defendants alleged that the plaintiff filed
false police reports alleging that the defendants sexually
abused her and withheld those false police reports from the
court to hide evidence that would have tended to undermine the
basis for the abuse prevention orders. The judge denied their
motion, concluding that the defendants failed to show that the
plaintiff had committed a fraud on the court and that the
defendants failed to meet their burden of showing a significant
change in circumstances to terminate the orders. The defendants
appealed.
Discussion. 1. Lack of notice. The defendants contend
that they lacked notice of the August 2018 hearing. This
argument is without merit. The record indicates that the
defendants had notice of the August 2018 hearing. During the
August 2017 hearing, at which both defendants appeared, the
clerk read the date, time, and location of the August 2018
hearing into the record. Cf. Commonwealth v. Reddy, 85 Mass.
App. Ct. 104, 112 n.7 (2014) (defendant's presence during 209A
order hearing established that defendant had knowledge of
order). Further, the defendants were both served with copies of
the abuse prevention orders, which included the next hearing
date. The defendants' appearance at the 2017 hearing, as well
as the copies of the orders they were served with, both
3 establish that the defendants were given notice of the August
2018 hearing.
2. Fraud on the court. The defendants argue that the judge
deprived them of due process by precluding them from presenting
evidence alleging that the plaintiff obtained the original abuse
prevention orders through fraud on the court. The defendants
contend that the judge applied the wrong legal standard and
thereby failed to consider the defendants' fraud on the court
evidence. In reviewing the judge's decision, "we will not
substitute our judgment for that of the trier of fact. We do,
however, scrutinize without deference the propriety of the legal
criteria employed by the trial judge and the manner in which
those criteria were applied to the facts." Iamele v. Asselin,
444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648,
655 (2004).
The judge instructed the parties to limit their testimony
to whether there had been a significant change in circumstances
since the orders issued. See MacDonald v. Caruso, 467 Mass.
382, 390-391 (2014) (on motion to terminate 209A order,
defendant must show by clear and convincing evidence that there
has been significant change in circumstances such that plaintiff
would no longer reasonably fear imminent serious physical harm
from defendant). He advised the parties that "I'm not going to
get into the merits of the underlying order."
4 Although the defendants' pro se motion was styled as a
motion to terminate, the defendants argued it as a motion to
vacate and the judge construed it accordingly. On a motion to
vacate an abuse prevention order, a defendant must show that the
order never should have issued in the first place. Xarax X. v.
Yale Y., 102 Mass. App. Ct. 699, 703 (2023). The defendants
attempted to meet this standard by alleging that the plaintiff
obtained the original abuse prevention orders through fraud on
the court. A fraud on the court occurs when a party
orchestrates "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."
Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598
(1994), quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118
(1st Cir. 1989). False allegations of abuse are insufficient to
establish fraud on the court absent a showing of a "larger
pattern of harassment" or "unconscionable scheme calculated to
interfere with the judicial system's ability impartially to
adjudicate a matter" (citation omitted). M.C.D. v. D.E.D., 90
Mass. App. Ct. 337, 342 (2016).
Although the judge advised the parties to limit their
evidence to whether circumstances had changed since the orders
issued, he ultimately permitted the defendants to testify and
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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-1202
S.H.
vs.
M.T.M. (and a consolidated case1).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff obtained abuse prevention orders against the
defendants pursuant to G. L. c. 209A. The following year, a
judge made the orders permanent. The defendants did not appeal
from that decision. Several years later, the defendants moved
to vacate the permanent abuse prevention orders. The judge
denied their motion to vacate. On appeal, the defendants argue
that the judge deprived them of due process of law by precluding
them from presenting evidence that the original abuse prevention
orders were procured by fraud on the court. They also argue
that they lacked notice of the hearing to extend the orders. We
affirm.
1 S.H. vs. D.B. Background. The plaintiff filed a complaint for an
emergency abuse prevention order against each defendant in 2017.
Following a two-party hearing, a judge extended the abuse
prevention orders for one year. The clerk told the parties on
the record that a hearing would be held the following year on
August 14, 2018, to determine whether to further extend the
orders. The clerk advised the parties of the date, time, and
location of the hearing. The clerk stated that a court officer
would serve the defendants with the abuse prevention orders,
which listed the hearing date. The defendants did not appear at
the August 2018 hearing. The plaintiff appeared at the hearing
and submitted an affidavit alleging violations of the abuse
prevention orders. The orders were made permanent. The
defendants did not appeal.
In 2023, the pro se defendants filed a self-styled "Motion
to Modify or Terminate Abuse Prevention Order."2 In it, the
defendants contended that the permanent abuse prevention orders
must be vacated. Although the defendants argued that they
lacked notice of the August 2018 hearing, they focused their
arguments on the allegation that the plaintiff committed a fraud
2 The judge construed the motion as a motion to vacate the permanent abuse prevention orders. The defendants also used the term "motion to vacate" during the hearing.
2 on the court to obtain the abuse prevention orders.
Specifically, the defendants alleged that the plaintiff filed
false police reports alleging that the defendants sexually
abused her and withheld those false police reports from the
court to hide evidence that would have tended to undermine the
basis for the abuse prevention orders. The judge denied their
motion, concluding that the defendants failed to show that the
plaintiff had committed a fraud on the court and that the
defendants failed to meet their burden of showing a significant
change in circumstances to terminate the orders. The defendants
appealed.
Discussion. 1. Lack of notice. The defendants contend
that they lacked notice of the August 2018 hearing. This
argument is without merit. The record indicates that the
defendants had notice of the August 2018 hearing. During the
August 2017 hearing, at which both defendants appeared, the
clerk read the date, time, and location of the August 2018
hearing into the record. Cf. Commonwealth v. Reddy, 85 Mass.
App. Ct. 104, 112 n.7 (2014) (defendant's presence during 209A
order hearing established that defendant had knowledge of
order). Further, the defendants were both served with copies of
the abuse prevention orders, which included the next hearing
date. The defendants' appearance at the 2017 hearing, as well
as the copies of the orders they were served with, both
3 establish that the defendants were given notice of the August
2018 hearing.
2. Fraud on the court. The defendants argue that the judge
deprived them of due process by precluding them from presenting
evidence alleging that the plaintiff obtained the original abuse
prevention orders through fraud on the court. The defendants
contend that the judge applied the wrong legal standard and
thereby failed to consider the defendants' fraud on the court
evidence. In reviewing the judge's decision, "we will not
substitute our judgment for that of the trier of fact. We do,
however, scrutinize without deference the propriety of the legal
criteria employed by the trial judge and the manner in which
those criteria were applied to the facts." Iamele v. Asselin,
444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648,
655 (2004).
The judge instructed the parties to limit their testimony
to whether there had been a significant change in circumstances
since the orders issued. See MacDonald v. Caruso, 467 Mass.
382, 390-391 (2014) (on motion to terminate 209A order,
defendant must show by clear and convincing evidence that there
has been significant change in circumstances such that plaintiff
would no longer reasonably fear imminent serious physical harm
from defendant). He advised the parties that "I'm not going to
get into the merits of the underlying order."
4 Although the defendants' pro se motion was styled as a
motion to terminate, the defendants argued it as a motion to
vacate and the judge construed it accordingly. On a motion to
vacate an abuse prevention order, a defendant must show that the
order never should have issued in the first place. Xarax X. v.
Yale Y., 102 Mass. App. Ct. 699, 703 (2023). The defendants
attempted to meet this standard by alleging that the plaintiff
obtained the original abuse prevention orders through fraud on
the court. A fraud on the court occurs when a party
orchestrates "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."
Rockdale Mgt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598
(1994), quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118
(1st Cir. 1989). False allegations of abuse are insufficient to
establish fraud on the court absent a showing of a "larger
pattern of harassment" or "unconscionable scheme calculated to
interfere with the judicial system's ability impartially to
adjudicate a matter" (citation omitted). M.C.D. v. D.E.D., 90
Mass. App. Ct. 337, 342 (2016).
Although the judge advised the parties to limit their
evidence to whether circumstances had changed since the orders
issued, he ultimately permitted the defendants to testify and
5 present evidence alleging that the original orders were obtained
through fraud on the court. The judge's findings, along with
the hearing transcript, show that the judge duly considered the
defendants' allegations of fraud. After hearing the defendants'
evidence, the judge concluded that "[t]he Defendants' fraud on
the court allegation would be more intriguing if there were
credible evidence that there was fraud." The judge did not err
in denying the motion to vacate where the defendants failed to
show by clear and convincing evidence that the plaintiff
perpetrated a fraud on the court. Rockdale Mgt. Co., 418 Mass.
at 600. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass.
501, 509-510 (1997) (on appeal we defer to judge's credibility
determinations).
Regardless of whether we construe the defendants' motion as
a motion to vacate or a motion to terminate, their appeal falls
short. To terminate a restraining order, the defendants must
show by clear and convincing evidence that there has been a
significant change in circumstances since the order issued such
that the plaintiff would no longer have a reasonable fear of
imminent harm from the defendant. MacDonald, 467 Mass. at 390-
391. During the 2023 hearing, the plaintiff testified that the
defendants continued to violate the 209A orders. The judge
concluded that the defendants' evidence fell short of meeting
their burden on the motion to terminate standard. Rather, he
6 found that "[t]he materials presented convince me that such an
order remains necessary." We discern no error of law.
Order denying motion to vacate permanent restraining orders affirmed.
By the Court (Neyman, Singh & Toone, JJ.3),
Clerk
Entered: April 15, 2025.
3 The panelists are listed in order of seniority.