PATRYCJA SIMONEAU v. MARK SIMONEAU (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (father) brought a complaint for contempt against his ex-wife, the defendant (mother), alleging violations of their divorce judgment. After a hearing, a Probate and Family Court judge found the mother not in contempt. The father appeals from the judgment on the contempt complaint and the order denying his motion for relief from judgment. We affirm.

“We review the judge's ultimate finding of [no] contempt for abuse of discretion, but we review underlying conclusions of law de novo and underlying findings of fact for clear error” (citation omitted). Jones v. Jones, 101 Mass. App. Ct. 673, 688 (2022). To prove contempt, the father bore the burden of showing, by clear and convincing evidence, see Smith v. Smith, 93 Mass. App. Ct. 361, 363 (2018), that the mother acted in “clear and undoubted disobedience of a clear and unequivocal [order]” of the court (citation omitted). Birchall, petitioner, 454 Mass. 837, 852 (2009). “In assessing whether that has occurred, we ‘look[ ] to the precise words of the order itself.’ ” Linardon v. United States Dep't of Hous. & Urban Dev., 485 Mass. 1005, 1006 (2020), quoting Parker v. Commonwealth, 448 Mass. 1021, 1022 (2007).

We perceive no abuse of discretion in the judge's finding that the father did not prove that the mother denied the father's parenting time in November 2024. The judge stated that the father's evidence regarding his allegation that the mother had willfully denied parenting time on November 8 to 12, and 22 to 25, 2024, was not credible.¹ The record reflects that while the parties had disagreements during transitions in parenting time, including concerning the children's belongings, the children returning to the house while the father was waiting, one child refusing to leave with the father, and whether some exchanges should occur at the police department, we agree with the judge that this evidence fell short of proving by clear and convincing evidence that the mother disobeyed a court order.

Regarding the father's claim that the mother deprived him of parenting time in October 2024, we discern no error in the judge's finding that the father failed to prove that the mother's conduct was a violation of a clear and unequivocal order. The father's contention was based on an alleged violation of a mutually agreed-on alteration to parenting time made between the parents. On the evidence presented to the judge, whether the parties had “mutually agreed” on modifying parenting time during the alleged time period -- or had yet to “swap” back parenting time owed -- was unclear. Given the equivocal posture of the evidence on this point, the judge correctly found that no violation had been proven. Birchall, petitioner, 454 Mass. at 852 (“Where the order is ambiguous or the disobedience is doubtful, there cannot be a finding of contempt” [citation omitted]).

We reach the same conclusion regarding the judge's findings that the father's remaining bases for contempt, namely, that the mother refused to pay for food therapy expenses and had disparaged the father to the children, were not founded on a clear and unequivocal court order. The judge's finding that it was not clear that food costs fell within the provision of the agreement that the father and the mother would equally share uninsured therapeutic costs is not clear error. Whether groceries were included within the parties’ definition of uninsured medical expenses was not sufficiently spelled out in the agreement to constitute a clear and unequivocal court order. See Birchall, petitioner, 454 Mass. at 852.

The allegation that the mother violated the parents’ mutual respect agreement is much the same. The judge did not err in finding that the mother's moving of the father's trash from their kitchen to his doorway does not clearly illustrate hampering the children's respect for the father. We agree with the judge's analysis that these allegations do not sufficiently connect any of the mother's actions to a court order or establish a violation of one.

The judge also properly denied the father's motion for relief from judgment based on newly discovered evidence or misrepresentation under Mass. R. Dom. Rel. P. 60(b)(2), (3) (rule 60[b]). See Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admin. & Fin., 369 Mass. 562, 565 (1976) (order on rule 60[b] motion reviewed for abuse of discretion). In denying the father's rule 60(b) motion, the judge had the father's and the mother's submissions from the contempt hearing as well as the father's submissions in support of his rule 60(b) motion. The judge nevertheless found that, even considering the new submissions, the father still had not “demonstrate[d] a clear and undoubted disobedience of a clear and unequivocal order.” Having reviewed the father's rule 60(b) motion and attachments, we discern no abuse of discretion in the judge's denial of his motion.

Judgment dated March 5, 2025, on complaint for contempt affirmed.

Order dated August 20, 2025, denying motion for relief from judgment affirmed.

FOOTNOTES

1.   Father's submissions at the contempt hearing are contained in exhibit F to the father's motion for relief from judgment under Mass. R. Dom. Rel. P. 60(b)(2) and (3), and the mother's submissions at the contempt hearing are contained in exhibit J of the father's rule 60(b) motion.