S.H. v. M.T.M. (And a Consolidated Case).

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.

7