Background
In December 2024, C.T.S. obtained an ex parte abuse prevention order under G. L. c. 209A against A.M. in the District Court, submitting an affidavit and testifying at the ex parte hearing. A two-party extension hearing was scheduled for January 2, 2025, but C.T.S. did not appear, and the 209A order was not extended and terminated that day.
A.M. then moved to expunge the record of the order’s issuance from the Statewide domestic violence record-keeping system (DVRS) maintained by the Commissioner of Probation. A.M. alleged that C.T.S. had perpetrated a fraud on the court in obtaining the order. The same judge who had issued the ex parte order held a hearing, reviewed the parties’ submissions, and listened to a recording of the original ex parte proceeding. The judge denied the motion, finding “the court does not find the order was obtained via a fraud upon the court that would warrant expungement.” A.M. appealed.
The Court’s Holding
A unanimous panel of the Massachusetts Appeals Court (Walsh, Hershfang & D’Angelo, JJ.) affirmed. The court reviewed the judge’s fraud determination for abuse of discretion.
Under Massachusetts law, a defendant is entitled to expungement of a 209A order from the DVRS only in the narrow circumstance where the defendant demonstrates by clear and convincing evidence that the plaintiff perpetrated fraud on the court in obtaining the order. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006). This standard is demanding: even where an ex parte order should not have issued in the first place, expungement is unavailable absent fraud. See Silva v. Carmel, 468 Mass. 18 (2014) (affirming denial of expungement of ex parte order that exceeded the statute’s scope). And where an order terminates by operation of law after a two-party hearing at which the plaintiff fails to appear, any appeal of the ex parte order would itself be dismissed as moot. See Allen v. Allen, 89 Mass. App. Ct. 403 (2016). On the record here, the court found no abuse of discretion in the motion judge’s conclusion that no fraud had occurred.
The court also addressed a procedural wrinkle: C.T.S.’s own appellate brief contained information that arguably supported A.M.’s fraud argument. The court declined to consider it, however, because that information had never been before the motion judge. Under settled appellate principles, “[w]e cannot base our decision on facts not contained in the record.” Love v. Massachusetts Parole Bd., 413 Mass. 766, 768 (1992). The court noted that A.M. could request that the motion judge reconsider the denial based on the new information in C.T.S.’s brief, but took no position on the merits of any such action.
Key Takeaways
- Expungement of a G.L. c. 209A order from the DVRS requires clear and convincing evidence of fraud on the court—a narrow standard not satisfied by showing the order was wrongly issued, subsequently terminated, or that the plaintiff later made inconsistent statements.
- Even where a 209A order terminates automatically because the plaintiff fails to appear at the two-party extension hearing, that fact alone does not support expungement.
- Appellate review of a fraud-on-the-court determination is for abuse of discretion; the motion judge who presided over the original ex parte proceeding receives deference on credibility and factual findings.
- New factual information appearing for the first time in an appellate brief cannot support reversal, but may be presented in a motion for reconsideration before the trial court.
Why It Matters
For Massachusetts domestic relations practitioners, C.T.S. v. A.M. is a useful reminder of the near-impossibility of clearing a DVRS record after an ex parte 209A order has issued. The DVRS retains that record even when the order is never extended and terminates within days—and expungement requires an affirmative showing of fraud, not merely evidence that the order was short-lived or that the plaintiff did not maintain her allegations. Defendants who believe a 209A order was obtained improperly have limited recourse unless they can meet the fraud-on-the-court standard by clear and convincing evidence.
The decision also illustrates an unusual procedural dynamic: when the opposing party’s own appellate brief contains statements that arguably undercut her earlier position before the trial court, the defendant’s remedy runs back to the trial court through a motion for reconsideration—not upward to the Appeals Court. Practitioners in 209A matters should be alert to how an adversary’s appellate filings might open the door to renewed trial court proceedings.