Xarax X. v. Yale Y.

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

21-P-1031 Appeals Court

XARAX X. vs. YALE Y.1

No. 21-P-1031.

Middlesex. November 29, 2022. – June 8, 2023.

Present: Meade, Singh, & D'Angelo, JJ.

Abuse Prevention. Protective Order. Due Process of Law, Abuse
prevention. Domestic Violence Record Keeping System.
Expungement. Fraud. Moot Question.

Complaint for protection from abuse filed in the Somerville
Division of the District Court Department on January 30, 2001.

A motion to correct and expunge a restraining order, filed
on December 30, 2020, was heard by William M. Fitzpatrick, J.

Yale Y., pro se.
Arthur J. Czugh for Massachusetts Probation Service.

SINGH, J. The defendant appeals from a District Court

judge's denial of his motion to correct and expunge a vacated

abuse prevention order from the Statewide domestic violence

1 We use pseudonyms for the parties' names.
2

record-keeping system (DVRS) maintained by the Commissioner of

Probation.2 The Massachusetts Probation Service (probation)

responded to the defendant's motion as keeper of the record.3 We

dismiss as moot the appeal from so much of the order that

declines to correct the record, and we affirm the order denying

the motion for expungement.

Background. In January 2001, the plaintiff sought an abuse

prevention order against the defendant, with whom she had been

in a dating relationship. The plaintiff alleged in her

complaint and affidavit that the defendant, who was then

incarcerated, had been making numerous unwanted calls to her --

at both her work and her home, that he had sent a threatening

letter to one of her coworkers in an effort to stop a potential

dating relationship, and that the defendant had physically and

mentally abused her in the past. She claimed to be "in fear of

imminent serious physical harm." The District Court granted an

ex parte G. L. c. 209A protective order (209A order), which was

then extended for one year on February 7, 2001, at a hearing

2 The plaintiff did not participate in this appeal.

3 Acknowledging that "the [Department of Probation
(department)] has a cognizable interest because of the duties
imposed on the Commissioner of Probation by St. 1992, c. 188,
§ 7," the Supreme Judicial Court has treated the department as a
party in an expungement matter despite its "failure to file a
formal motion to intervene." Vaccaro v. Vaccaro, 425 Mass. 153,
153 n.1 (1997). We do the same.
3

that was not attended by the defendant. The court served the

defendant with notice of the order on February 13, 2001, well

after the hearing. The defendant appealed. The order was later

extended again for one year in both 2002 and 2003, again without

the presence of the defendant.4

In an unpublished memorandum and order, a panel of this

court vacated the underlying order and its extensions because of

deficiencies in both the evidentiary support for the order as

well as due process. Although the District Court docket

thereafter reflected that the abuse prevention order had been

vacated, the DVRS simply reflected that the order was "closed."

In 2019, in conjunction with the defendant's evaluation at

the Massachusetts Treatment Center (treatment center), a

therapist noted on the defendant's "comprehensive sexual offense

assessment and treatment evaluation," the existence of the

4 After receiving the first post-hearing notice of the
order, the defendant attempted to appear in court for the later
hearings by requesting a writ of habeas corpus, but each request
was denied. See M.M. v. Doucette, 92 Mass. App. Ct. 32, 38
(2017), quoting Guidelines for Judicial Practice: Abuse
Prevention Proceedings § 4:07 commentary (Sept. 2011)
("[i]ncarcerated defendants have the right to be heard on a
requested extension of the ex parte order at a hearing after
notice. The court should take steps to inform them of this
right and to secure their presence in court if requested to do
so"). See also Commonwealth v. Delaney, 425 Mass. 587, 591 n.7
(1997), cert. denied, 522 U.S. 1058 (1998) ("It is clear that
'[d]ue process requires that no [extended abuse prevention]
order be issued against a person without prior notice and the
opportunity to be heard'" [citation omitted]).
4

restraining orders at issue in this case and indicated that

although the clerk of this court had documented that the

restraining orders had been vacated on September 9, 2003, a

recent probation record "still reflects this restraining order."5

Additionally, in 2020, the parole board provided a "commitment

summary" that appears to reference the vacated restraining order

as one of four "expired 209A [orders]."

Subsequently, in December 2020, the defendant filed his

motion to correct, and then expunge the restraining orders from

the DVRS, arguing that he was harmed by the incorrect notation

of "closed" rather than "vacated" in the DVRS. Probation took

no position on whether the motion to expunge should be allowed,

but filed a memorandum contending that the defendant had made no

showing of the fraud upon the court necessary to obtain the

relief of expungement.6 The judge adopted probation's analysis

and denied the motion.7 The defendant brought this appeal.

5 The evaluation further noted that the defendant also had
three restraining orders issued against him in 1993, 1994, and
1995, for the benefit of a different plaintiff.

6 In a separate letter, probation explained that there was,
at that time, no available status code of "vacated" within its
computerized record-keeping system, such that the defendant's
record could not be corrected.

7 The judge did not separately discuss the motion to
correct.
5

Discussion. 1. Motion to correct. On appeal, the

defendant recognizes that probation is charged with maintaining

the DVRS, which includes records of even vacated orders, see

Vaccaro v. Vaccaro, 425 Mass. 153, 156 (1997), and that, to this

point, expungement of information from the DVRS has only been

available in the "rare and limited" circumstance of fraud upon

the court. See Commissioner of Probation v. Adams, 65 Mass.

App. Ct. 725, 737 (2006). His argument, however, is that if

probation cannot maintain accurate information, his only redress

for the harm he suffers, and may continue to suffer, is

expungement of the inaccurate information.

In July 2022, after the parties filed their briefs in this

appeal, probation, the Department of Criminal Justice

Information Services, and the Trial Court's Judicial Information

Services Division introduced three new status code options to

the DVRS: "closed-denied," "closed-expired," and "closed-

vacated." After the implementation of this update, the entries

relating to the defendant's order stated "closed-vacated."

Thus, the status of the defendant's vacated order has been

corrected on the DVRS.

The defendant's appeal of the denial of his motion to

correct is now moot because he has "obtained all the relief to

which he could be entitled." Quinn v. Gjoni, 89 Mass. App. Ct.

408, 414 (2016). See Lynn v. Murrell, 489 Mass. 579, 583 (2022)
6

(where a court's ruling "would offer no additional relief and

would not alter either party's legal position," appeal is moot);

Lawyers' Comm. For Civ. Rights & Economic Justice v. Court Adm'r

of the Trial Court, 478 Mass. 1010, 1011 (2017) (where "no

further effective relief can be granted," petition is moot);

McCants v. Clerk of Suffolk Superior Court for Criminal

Business, 465 Mass. 1007, 1007-1008 (2013) (where petitioner

received relief sought, petition properly dismissed as moot);

Layne v. Superintendent, Mass. Correctional Inst., Cedar

Junction, 406 Mass. 156, 160 (1989) (where alleged

constitutional violations had been cured by time plaintiffs

sought to present case on merits, matter was moot as to any

continuing wrong).8

2. Motion to expunge. In 1992, the Legislature, by St.

1992, c. 188, § 7, directed the Commissioner of Probation to

8 At oral argument, the defendant raised another issue with
regard to a support payment order, listed under a separate 209A
order involving a different individual, which is not before us
on appeal. In his original motion, in a final parenthetical,
the defendant first raised an issue with regard to this separate
order, stating that "there was only one (1) restraining order
issued . . . and yearly extensions, not separate orders." As
stated, neither of these issues pertains to the 209A order -- or
even to the same plaintiff -- before us currently. Therefore,
the defendant's contentions do not rise to the level of
appellate argument we need consider. See Commonwealth v.
Norman, 87 Mass. App. Ct. 344, 347 n.6 (2015) (single
unsupported sentence in appellant's brief "does not rise to
appellate argument that we need consider").
7

create and maintain a computerized Statewide domestic violence

record-keeping system for all restraining orders. In Vaccaro,

425 Mass. at 156, the Supreme Judicial Court held that "[t]here

is nothing in St. 1992, c. 188, § 7, or in G. L. c. 209A, that

permits a record to be removed or that authorizes the entry of a

judicial order directing expungement of a record from the

system." See M.C.D. v. D.E.D., 90 Mass. App. Ct. 337, 343

(2016). As the court noted in Vaccaro, "the absence of any

provision for removal or authority for expungement . . .

reflects a deliberate legislative decision that all records be

available for review by a judge who is considering an

application for a restraining or protective order and by other

authorized agencies that have a legitimate need to see the

record." Vaccaro, supra at 157. Cf. Matter of Expungement, 489

Mass. 67, 74-76 (2022) (judge had no discretion to expunge

criminal record in "interests of justice," where statute did not

provide such authority).

The court reasoned in Vaccaro that, in alleged abuse cases,

it is crucial that judges and law enforcement officials have as

much information as possible, including "all orders, inactive as

well as active" to determine potential dangerousness. Vaccaro,

supra at 157. "Because a fair proportion of such vacated orders

may include a high level of abuse, inclusion of vacated orders

in the system can provide meaningful information,
8

notwithstanding their inactive status and regardless of the

reason for termination." Id. at 158 n.5. Such is the case

here, where the allegations, while not considered immediately

threatening under the statute, could nonetheless provide such

meaningful information as the DVRS was designed to make

available.

That the instant order was vacated by this court,

indicating that the order never should have issued in the first

place, is of no consequence. In Silva v. Carmel, 468 Mass. 18,

24-25 (2014), the Supreme Judicial Court denied the defendant's

request for expungement, even though the initial ex parte order

should not have issued because the parties were not household

members. See Allen v. Allen, 89 Mass. App. Ct. 403, 406-407

(2016) (where ex parte order was terminated by subsequent order

after notice, appeal of ex parte order dismissed as moot because

defendant would not be entitled to any further relief,

specifically expungement, even after successful appeal).

Likewise, in B.C. v. F.C., 90 Mass. App. Ct. 345, 350-351

(2016), where both parties jointly requested expungement where

they agreed that the order was premised on "fantastical

representations from a plaintiff then suffering a psychotic

episode with delusions," expungement was not an available

remedy. Cf. Commonwealth v. Boe, 456 Mass. 337, 339 (2010)

(court had no inherent power to expunge criminal record, even
9

where Commonwealth and defendant jointly moved for expungement

on basis that "the complaint should not have issued in the first

instance").

As noted above, a narrow exception to this rule allows for

judicial expungement "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." Adams, 65

Mass. App. Ct. at 737. See M.C.D., 90 Mass. App. Ct. at 342,

quoting Adams, supra at 729-730 (false allegation of abuse or

false testimony alone insufficient to constitute fraud on court

absent showing that it contributed to "'larger pattern of

harassment' or 'unconscionable scheme calculated to interfere

with the judicial system's ability impartially to adjudicate a

matter'"). The defendant acknowledges in his brief that the

judge correctly concluded that the defendant did not present any

evidence that the plaintiff's application for the 209A order (i)

contained anything untruthful or (ii) that the order was the

product of "fraud or a deceptive scheme." The defendant

conceded that he cannot meet the standard for this narrow

exception.

Pivoting away from any claim based on fraud, the defendant

instead claims that he has been prejudiced by the inaccurate

information in the DVRS. He contends that the treatment center

therapists at Bridgewater State Hospital and the parole board
10

have used the vacated 209A orders against him in their

assessment and evaluation of him. The record on appeal,

however, does not bear out this claim.9 In any event, the

previous designation of the orders as "closed" has been changed

to "vacated." Going forward, law enforcement and judges will

view accurate information regarding the status of the abuse

prevention order. Contrast Adams, 65 Mass. App. Ct. at 735

(court noted that failure to expunge order obtained through

fraud on court would result in "incorrect information" being

provided to law enforcement). Cf. Boe, 456 Mass. at 348 (that

defendant "should not have been charged with a crime in the

first place does not render the information in the record

[showing that a complaint issued but was ultimately dismissed]

inaccurate or misleading").

In the circumstances of this case, the current law does not

authorize an order of expungement. "If [that] is unwise, it is

not for us to say so; the remedy lies with the Legislature."

Murphy v. Police Comm'r of Boston, 369 Mass. 469, 471 (1976).

See Commonwealth v. Vickey, 381 Mass. 762, 767 (1980) ("[W]hen

9 A Department of Correction file, which was part of the
therapists' assessment, indicates that the order at issue was
vacated. The parole board record provided by the defendant
mentions four "expired 209A[s]," but a large portion of the
document is obscured and text is blocked which prevents any
determination of whether the 209A orders caused the defendant
any harm.
11

the statute appears not to provide for an eventuality, there is

no justification for judicial legislation").

Insofar as the appeal seeks review of the order on the

motion to correct, it is dismissed as moot; insofar as it seeks

review of the order on the motion to expunge, the order is

affirmed.

So ordered.
D'ANGELO, J. (concurring). I concur with the majority that

G. L. c. 209A and St. 1992, c. 188, § 7, presently do not

authorize expungement of an order entered into the Statewide

domestic violence record-keeping system (DVRS) in the

circumstances presented.1 I write separately because I do not

believe that an order which has been vacated by an appellate

court because there was insufficient evidence for it to ever

have been issued "provide[s] meaningful information" to judges

or law enforcement personnel.2 Vaccaro v. Vaccaro, 425 Mass.

153, 158 n.5 (1997). For this reason, I urge the Legislature to

amend the statutory scheme to authorize automatic expungement

from the DVRS when an appellate court finds that there was

insufficient evidence for the order to ever have been issued so

that restraining orders issued in error are never used against a

1 As the majority notes, this court created a judicial
exception, despite there being no statutory reference, in the
narrow circumstance where the defendant demonstrates that the
plaintiff perpetrated fraud on the court in obtaining the G. L.
c. 209A protective order. See Commissioner of Probation v.
Adams, 65 Mass. App. Ct. 725, 737 (2006).
2 Here, the order was not vacated due to a mere procedural
defect; this court held that there was an absence of evidentiary
support in addition to due process violations. Cf. Silva v.
Carmel, 468 Mass. 18, 24 n.9 (2014) (court never reached issue
whether there was sufficient evidence for issuance of
restraining order).
2

defendant in any way whatsoever, aligning with the purpose of

the statute and supporting the fair administration of justice.3

General Laws c. 209A lays out the civil proceedings by

which a plaintiff may obtain an abuse prevention order, commonly

referred to as a restraining order. See Commonwealth v.

Dufresne, 489 Mass. 195, 197-198 (2022). After the plaintiff

files a civil complaint and a supportive affidavit, a judge

holds a hearing, may obtain additional evidence from the

plaintiff, and then grants or denies the request for a

restraining order. The judge may issue an ex parte restraining

order and schedule a two-party hearing within ten business days

or the judge may deny the plaintiff's request and not issue an

ex parte restraining order. See G. L. c. 209A, § 4. When a

judge denies the request for an ex parte restraining order,

nothing ever appears in the DVRS. On the other hand, if the

judge does issue an ex parte restraining order, the fact that an

order has issued is entered into the DVRS and is forevermore

available to judges and law enforcement. See Vaccaro, 425 Mass.

at 155-156 & n.3.

3Section 7 of St. 1992, c. 188, also requires that the
information contained in the DVRS "be made available to law
enforcement agencies through the criminal justice information
system maintained by the executive office of public safety."
Accordingly, amendment of the statutory scheme also should
authorize automatic expungement from the criminal justice
information system where an abuse prevention order has been
vacated due to insufficient evidence.
3

At the two-party hearing, a judge may extend the previously

issued ex parte restraining order for a period not to exceed one

year, or the judge may terminate the ex parte restraining order.4

If the ex parte restraining order is terminated, the DVRS will

indicate this by the code "closed-denied." If a plaintiff does

not appear for the two-party hearing, the ex parte restraining

order expires and the DVRS will indicate "closed-terminated."

Restraining orders "for the protection of those abused may

be granted under G. L. c. 209A, §§ 3, 4, and 5, and are enforced

under G. L. c. 209A, § 7. By St. 1992, c. 188, § 7, the

Legislature authorized and directed the Commissioner of

Probation . . . to develop and implement the [DVRS], which is to

contain a computerized record of the issuance and violation of

any restraining or protective order. Section 7 . . .

restrict[s] access to the records in the system to judges and

law enforcement agencies." Vaccaro, 425 Mass. at 155. The DVRS

is a statutorily-mandated database maintained by the

Commissioner of Probation and there is no statute that permits a

4 Although the terminology "vacate" and "terminate" has been
used interchangeably, see Quinn v. Gjoni, 89 Mass. App. Ct. 408,
414 n.13 (2016), there is a difference between an order that has
been "vacated" by an appellate court and an order that has been
"closed" or "terminated" in the trial court. An order that has
been terminated or closed in the trial court is not a judicial
finding that the initial order was improperly issued. It
typically means that the initial order simply is no longer
active.
4

record to be removed or that authorizes the entry of a judicial

order directing expungement of a record from the system. Id. at

156. The Supreme Judicial Court has explained that "[t]he

Legislature's express directive . . . that a computerized record

be kept in the system of all orders, inactive as well as active,

and the absence of any provision for removal or authority for

expungement, reflects a deliberate legislative decision that all

records be available for review" by judges and law enforcement

officials. Id. at 157.

Nevertheless, as the majority notes, this court has held

that a defendant is entitled to expungement only in the narrow

circumstance where the defendant demonstrates that the plaintiff

perpetrated fraud on the court in obtaining the G. L. c. 209A

protective order (209A order). See Commissioner of Probation v.

Adams, 65 Mass. App. Ct. 725, 737 (2006). In recognizing this

exception, we emphasized that "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," expungement was appropriate. Id. We justified

recognizing this exception on judges' inherent power to expunge

DVRS records, notwithstanding G. L. c. 209A, § 7, as long as

"the government's interest in maintaining the record does not

outweigh the harms suffered by the maintenance of the record."

Id. at 735.
5

I agree with the majority that the Legislature has not left

room in the statute for judges to expunge a defendant's vacated

record; the information provided in the DVRS is not technically

"incorrect," like it was in Adams. However, that the statutory

scheme does not authorize expungement in this situation reveals

a fundamental flaw in the scheme as it stands. Prohibiting

expungement in this case offends the rationale of G. L. c. 209A,

§ 7, and Vaccaro because the government's interest in

maintaining a record of the defendant's 209A order does not

outweigh the harm to the defendant. The government's interest

in maintaining the DVRS is "to ensure that abusers [are] easily

identifiable by law enforcement officials when they either

violate[] 209A orders or commit[] other crimes in the

future. . . . The Legislature specifically omitted an

expungement provision in the statute because it did not want

vacated 209A orders to go unnoticed. . . . [A]lthough many 209A

orders would likely be vacated, the Legislature determined that

records of such orders would still provide valuable information

to law enforcement officials" (emphases added). Adams, 65 Mass.

App. Ct. at 733-734. As was stated by the Supreme Judicial

Court in Vaccaro, restraining orders are often vacated,

terminated, or closed "because the plaintiff has chosen not to

pursue the order. The dynamics of this choice are complex and

can involve the plaintiff's self-esteem, financial and family
6

pressures, a desire for reconciliation, coercion, intimidation,

or the heightened sense of danger that accompanies a

separation. . . . Because a fair proportion of such vacated[,

terminated, or closed] orders may include a high level of abuse,

inclusion of vacated[, terminated, or closed] orders in the

system can provide meaningful information, notwithstanding their

inactive status and regardless of the reason for termination"

(emphasis added). Vaccaro, 425 Mass. at 158 n.5.5 In the

situation where a prior restraining order is closed or

terminated, the precepts of G. L. c. 209A, § 7, and Vaccaro are

logical. There is still a benefit for judges and law

enforcement to be aware of the lawfully issued orders whether

they are active or not.

These "strong policy reasons" for limiting judicial

expungement, B.C. v. F.C., 90 Mass. App. Ct. 345, 350 (2016),

disappear, however, where the initial order was improperly

issued and ultimately vacated due to insufficient evidence.

There is no policy reason to distinguish between complaints for

abuse prevention orders that are denied at the outset, and those

that are vacated because they should have been denied at the

5 It should be noted that in Vaccaro, the Supreme Judicial
Court reviewed the affidavit submitted by the plaintiff and
found that the information provided to the court "was sufficient
to allow the court to conclude she had been placed in fear of
'imminent serious physical harm.'" Vaccaro, 425 Mass. at 154
n.2.
7

outset due to insufficient evidence. In this case, the

improperly issued order serves no legitimate informational

purpose. Because the order should never have issued, the

existence of the vacated restraining order "is unhelpful . . .

[and] impedes the fair administration of justice." Adams, 65

Mass. App. Ct. at 736.

On the other hand, the resulting harm to the defendant in

the maintenance and dissemination of the improperly issued

restraining order in the DVRS and court activity record

information is substantial and no different than it was in

Adams. It seems illogical that where this court has deemed that

there was insufficient evidence for the order to have been

issued, the court is nonetheless required by the statute to

allow the collateral consequences of the record to continue to

appear in the DVRS. "[W]ithout expungement, [the defendant]

will suffer from a blemish on [his] record for the rest of [his]

life. . . . The existence of a record can adversely affect

[him] if [he] is involved in any future 209A proceeding . . .

[or] during future bail proceedings." Adams, 65 Mass. App. Ct.

at 736. Unlike in Adams where the potential harm was

hypothetical, in this case, the defendant has had adverse

consequences because of the improperly issued order remaining in

the DVRS. It has been referenced by the parole board and the
8

Department of Correction in decisions that have affected the

defendant.

Revising the statutory scheme to allow expungement of the

order from the DVRS and the criminal justice information system

would remedy any harm suffered to the defendant as a result of

the trial court's error. In essence, expunging the defendant's

record from the DVRS and the criminal justice information system

would put the defendant back into the same position he was in

prior to the improperly issued restraining order. I therefore

urge the Legislature to amend the statutory scheme to make clear

that in the rare circumstance where an appellate court finds

that a restraining order was issued in error because of

insufficient evidence, expungement of the order from the DVRS

and the criminal justice information system is appropriate and

supports the "fair administration of justice." Adams, 65 Mass.

App. Ct. at 736.