B.G. v. N.M.

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.

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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.

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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

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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

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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.

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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

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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."

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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

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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.

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