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
24-P-671
DEVON SUSANNE SMITH1
vs.
AARON ALFRED SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Devon Susanne Smith (mother), the former spouse of Aaron
Alfred Smith (father), appeals from a Probate and Family Court
judgment (contempt judgment) finding the mother guilty of
contempt for violating (1) the parenting plan provision of the
parties' separation agreement, which was incorporated into the
judgment of divorce nisi (divorce judgment); and (2) a temporary
order requiring the mother to facilitate the father's continuing
access to their teenage child's location using the Life360
application (Life360 order).2 The mother contends that the first
1As is our custom, we use the names appearing on the joint petition for divorce, notwithstanding that the mother subsequently changed her surname.
2 Life360 is a location-sharing application. finding of contempt was erroneous because the parenting plan
provision was not sufficiently clear and unequivocal to warrant
a contempt finding. As for the second finding of contempt, the
mother contends that it was erroneous because she complied with
the obligations outlined in the Life360 order. We affirm.
Background. On August 26, 2019, the parties filed a joint
petition for divorce. In their separation agreement, which was
incorporated into the October 23, 2019 divorce judgment, the
parties agreed to have shared physical custody of the child.
The agreement included a parenting plan provision stating that
the child would be in each parent's care on alternating weeks,
which the parties described as a "week on/week off" schedule.
The parenting plan provision further provided that the parties
had a "common goal of creating a stable and secure environment
for their child." At the time, the child was eleven years old.
In August 2021, a breakdown of the relationship between the
child and the father occurred. The mother exacerbated this rift
by failing to effectuate the "week on/week off" parenting
schedule. On November 1, 2021, after a hearing on the father's
complaint for contempt, a judge of the Probate and Family Court
(first contempt judge) found the mother to be in contempt of the
divorce judgment based on her failure to "ensure[] the
[f]ather's parenting time." After a hearing on another
complaint for contempt filed by the father, the first contempt
2 judge again found the mother in contempt of the divorce
judgment, on the same grounds, on April 7, 2022.
When the child began consistently running away from the
father's house during the father's designated parenting weeks, a
different judge, who later presided over the contempt
proceedings at issue here (second contempt judge), issued the
Life360 order on April 25, 2023, requiring (1) "the parties [to]
work together to ensure that the parties, and only the parties,
always have unrestricted access to the child's location"; and
(2) the mother to create a Life360 account for the family (so
that both parents could track the child's location through his
cell phone), and create a password to prevent the child from
disabling the location settings.
The father then filed another complaint for contempt on
August 28, 2023, which is at issue in this appeal. After an
evidentiary hearing before the second contempt judge, the mother
was adjudicated guilty of contempt of both the parenting plan
provision of the divorce judgment and the Life360 order.
Finally, the second contempt judge ordered the mother to pay for
the father's reasonable attorney's fees and costs, in the amount
of $18,945.43. The mother timely appealed from the resulting
contempt judgment.
Facts. We summarize the facts as found by the second
contempt judge, supplementing them with undisputed facts in the
3 record, after an evidentiary hearing on the present complaint
for contempt. In April 2023, the parties attempted to resume
the "week on/week off" parenting schedule. The child was
resistant to spending time at the father's house and routinely
shut himself in his room and ignored the father altogether. The
child would leave the father's home early in the morning and not
return until late at night. As a result, for long stretches of
his parenting time, the father did not know the child's
location. The mother did not have the same issues during her
parenting time.
After the second contempt judge issued the Life360 order,
the child continued leaving the father's house early and coming
home late, but also began leaving his phone at a set location
during the day in order to avoid being tracked via the Life360
application. Specifically, the application showed that the
child left his phone at Mount Holyoke College. The mother was
employed by Mount Holyoke College, but she did not have an
office space there, so she worked in the campus library when she
was not working from home. The father reported to the mother
that the application showed the location of the child's phone in
the campus library.
The child also avoided being tracked by simply turning off
his phone during the father's parenting weeks. The mother and
her husband maintained a spare cell phone under their family
4 phone plan. The child used this phone at least once while in
the mother's home. The mother claimed that the spare phone was
password-protected, and that the child did not know the
password, which the second contempt judge did not find credible.
Beginning on August 1, 2023, the child stopped going to the
father's house during his scheduled parenting time and instead
began spending that time at the home of the mother's friend.
The mother would drop the child off at the end of the father's
driveway every other Sunday. The mother would then drive away,
ostensibly to prevent the child from getting back into her car.
The mother never walked the child to the door of the father's
house. The mother never stayed to watch the child go into the
father's house. The father repeatedly notified the mother that
the child had not come inside his house and was not staying
there.
The second contempt judge found that the mother knew that
the child was staying with her friend during the father's
parenting time.3 The child continued spending the father's
3 The mother testified that she did not know the child's location during the father's parenting weeks from August 1 to September 12, 2023.
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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
24-P-671
DEVON SUSANNE SMITH1
vs.
AARON ALFRED SMITH.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Devon Susanne Smith (mother), the former spouse of Aaron
Alfred Smith (father), appeals from a Probate and Family Court
judgment (contempt judgment) finding the mother guilty of
contempt for violating (1) the parenting plan provision of the
parties' separation agreement, which was incorporated into the
judgment of divorce nisi (divorce judgment); and (2) a temporary
order requiring the mother to facilitate the father's continuing
access to their teenage child's location using the Life360
application (Life360 order).2 The mother contends that the first
1As is our custom, we use the names appearing on the joint petition for divorce, notwithstanding that the mother subsequently changed her surname.
2 Life360 is a location-sharing application. finding of contempt was erroneous because the parenting plan
provision was not sufficiently clear and unequivocal to warrant
a contempt finding. As for the second finding of contempt, the
mother contends that it was erroneous because she complied with
the obligations outlined in the Life360 order. We affirm.
Background. On August 26, 2019, the parties filed a joint
petition for divorce. In their separation agreement, which was
incorporated into the October 23, 2019 divorce judgment, the
parties agreed to have shared physical custody of the child.
The agreement included a parenting plan provision stating that
the child would be in each parent's care on alternating weeks,
which the parties described as a "week on/week off" schedule.
The parenting plan provision further provided that the parties
had a "common goal of creating a stable and secure environment
for their child." At the time, the child was eleven years old.
In August 2021, a breakdown of the relationship between the
child and the father occurred. The mother exacerbated this rift
by failing to effectuate the "week on/week off" parenting
schedule. On November 1, 2021, after a hearing on the father's
complaint for contempt, a judge of the Probate and Family Court
(first contempt judge) found the mother to be in contempt of the
divorce judgment based on her failure to "ensure[] the
[f]ather's parenting time." After a hearing on another
complaint for contempt filed by the father, the first contempt
2 judge again found the mother in contempt of the divorce
judgment, on the same grounds, on April 7, 2022.
When the child began consistently running away from the
father's house during the father's designated parenting weeks, a
different judge, who later presided over the contempt
proceedings at issue here (second contempt judge), issued the
Life360 order on April 25, 2023, requiring (1) "the parties [to]
work together to ensure that the parties, and only the parties,
always have unrestricted access to the child's location"; and
(2) the mother to create a Life360 account for the family (so
that both parents could track the child's location through his
cell phone), and create a password to prevent the child from
disabling the location settings.
The father then filed another complaint for contempt on
August 28, 2023, which is at issue in this appeal. After an
evidentiary hearing before the second contempt judge, the mother
was adjudicated guilty of contempt of both the parenting plan
provision of the divorce judgment and the Life360 order.
Finally, the second contempt judge ordered the mother to pay for
the father's reasonable attorney's fees and costs, in the amount
of $18,945.43. The mother timely appealed from the resulting
contempt judgment.
Facts. We summarize the facts as found by the second
contempt judge, supplementing them with undisputed facts in the
3 record, after an evidentiary hearing on the present complaint
for contempt. In April 2023, the parties attempted to resume
the "week on/week off" parenting schedule. The child was
resistant to spending time at the father's house and routinely
shut himself in his room and ignored the father altogether. The
child would leave the father's home early in the morning and not
return until late at night. As a result, for long stretches of
his parenting time, the father did not know the child's
location. The mother did not have the same issues during her
parenting time.
After the second contempt judge issued the Life360 order,
the child continued leaving the father's house early and coming
home late, but also began leaving his phone at a set location
during the day in order to avoid being tracked via the Life360
application. Specifically, the application showed that the
child left his phone at Mount Holyoke College. The mother was
employed by Mount Holyoke College, but she did not have an
office space there, so she worked in the campus library when she
was not working from home. The father reported to the mother
that the application showed the location of the child's phone in
the campus library.
The child also avoided being tracked by simply turning off
his phone during the father's parenting weeks. The mother and
her husband maintained a spare cell phone under their family
4 phone plan. The child used this phone at least once while in
the mother's home. The mother claimed that the spare phone was
password-protected, and that the child did not know the
password, which the second contempt judge did not find credible.
Beginning on August 1, 2023, the child stopped going to the
father's house during his scheduled parenting time and instead
began spending that time at the home of the mother's friend.
The mother would drop the child off at the end of the father's
driveway every other Sunday. The mother would then drive away,
ostensibly to prevent the child from getting back into her car.
The mother never walked the child to the door of the father's
house. The mother never stayed to watch the child go into the
father's house. The father repeatedly notified the mother that
the child had not come inside his house and was not staying
there.
The second contempt judge found that the mother knew that
the child was staying with her friend during the father's
parenting time.3 The child continued spending the father's
3 The mother testified that she did not know the child's location during the father's parenting weeks from August 1 to September 12, 2023. The second contempt judge did not credit this testimony and instead found that "the [m]other has consistently known of [the child's] location [at her friend's residence] and how he arrives at [her friend's] residence." The second contempt judge also found that "the [m]other . . . was consistently aware of [the child's] safety with [her friend]." The mother admitted that she was aware that the child was staying with her friend as of September 12, 2023.
5 designated parenting weeks at the mother's friend's home for at
least six months. The father asked for the mother's help
locating the child, but the mother refused. The father did not
know where the child was staying during his designated parenting
weeks until the mother told him in October 2023. And even after
informing the father that the child was staying with the
mother's friend, the mother did not provide the father with her
friend's address.
Discussion. 1. Standard of review. We review a contempt
finding for an abuse of discretion. Smith v. Smith, 93 Mass.
App. Ct. 361, 363 (2018). A civil contempt finding requires
"clear and convincing evidence of disobedience of a clear and
unequivocal command." Birchall, petitioner, 454 Mass. 837, 853
(2009) (Birchall).4 The judge shall consider "the totality of
the circumstances" (citation omitted). Smith, supra.
2. Contempt of divorce judgment. For the first time on
appeal, the mother argues that the second contempt judge erred
in finding her guilty of contempt for violating the parenting
4 The second contempt judge and the mother both mistakenly cite to the now-superseded "clear and undoubted disobedience of a clear and unequivocal command" (emphasis added) standard that the Supreme Judicial Court expressly rejected in Birchall, 454 Mass. at 853. In Birchall, the Supreme Judicial Court raised the standard of proof from a preponderance of the evidence to clear and convincing evidence and also clarified that "the disobedience must be clear, but need not be beyond doubt." Id.
6 plan provision of the divorce judgment because it did not
constitute a clear and unequivocal order. The father asserts
that this argument is waived. We agree with the father that the
issue is waived.
"An issue not raised at the trial court is not entitled to
review here." Edgar v. Edgar, 406 Mass. 628, 629 (1990).
Because the mother did not challenge the parenting plan
provision's clarity in the contempt hearing, she did not
preserve that issue for appellate review, and it is therefore
waived. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997)
("Objections, issues, or claims -- however meritorious -- that
have not been raised at the trial level are deemed generally to
have been waived on appeal"). Accordingly, we do not consider
it. See Carey v. New England Organ Bank, 446 Mass. 270, 285
(2006).5
3. Contempt of Life360 order. The mother argues that she
complied with the plain language of the Life360 order and
asserts that there was no clear and convincing evidence that she
5If we were to reach the merits of this issue, we note that this was the mother's third finding of contempt for failing to facilitate the father's parenting time. That procedural history provides strong evidence that the mother had fair notice that her failure to take reasonable steps to share any information about the child's location with the father during his parenting time would constitute contempt of a court order.
7 restricted the father's access to the child's location. We
disagree.6
The mother argues that she adhered to the express language
of the Life360 order, specifically by creating a Life360 account
for the family and protecting it with a password to prevent the
child from disabling the location settings. But the record
supports the second contempt judge's finding that the mother
knew that the child was staying with her friend during the
father's parenting time for six months beginning in August 2023,
and that she failed to inform the father of the child's location
when she knew it and he asked her directly. The record also
supports the second contempt judge's finding that this was a
clear violation of the order's language that "[t]he parties
shall work together to ensure that the parties, and only the
parties, always have unrestricted access to the child's
location."7 The fact that the mother's restriction of the
father's knowledge of the child's location was by verbal
6 The mother does not dispute that the Life360 order was clear and unequivocal. Therefore, we do not address that issue.
7 The second contempt judge also found that the mother had given the child her family's spare cell phone during the father's parenting time to circumvent the father's ability to track the child with the Life360 application. Nothing in the record shows that this finding of fact was clearly erroneous.
8 omission, rather than via the Life360 application, is not a
material distinction.
We discern no abuse of discretion in the second contempt
judge's finding that the mother was in contempt for violation of
the Life360 order.8 See Smith, 93 Mass. App. Ct. at 363.
Judgment dated March 5, 2024, affirmed.
By the Court (Sacks, Smyth & Wood, JJ.9),
Clerk
Entered: October 24, 2025.
8 The mother's request for appellate counsel fees is denied.
9 The panelists are listed in order of seniority.