Faythe Helen Petrin v. Timothy William Petrin.

• Court: Massachusetts Appeals Court
• Decided: June 1, 2026
• Docket: 25-P-1229
• Status: Unpublished

Opinion

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

25-P-1229

FAYTHE HELEN PETRIN1

vs.

TIMOTHY WILLIAM PETRIN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The wife appeals from an order issued by a Probate and

Family Court judge denying her motion to reinstate her

underlying appeal, which the register of probate (register)

administratively dismissed for lack of prosecution pursuant to

Rule 30 of the Supplemental Rules of the Probate and Family

Court (2019) (Rule 30). We affirm.

Background. The wife's underlying appeal was from various

contempt judgments and a modification judgment issued by the

judge in February 2024. In the underlying proceedings, the wife

sought to hold the husband in contempt for failing to pay fifty

1As is our custom, we set forth the parties' names as they appear on the joint petition for divorce, notwithstanding that the wife subsequently changed her surname. percent of their children's extracurricular expenses and

uninsured healthcare expenses, which he was ordered to do by a

prior contempt judgment from 2021. The judge concluded that

there was no clear and convincing evidence of the husband's

disobedience of the 2021 contempt judgment with respect to the

payment of certain extracurricular expenses. The husband and

the wife disagreed on the total amount of money that the husband

owed for those expenses, and the judge found the actual amount

to be different than the amounts asserted by the parties. The

judge therefore did not find the husband in contempt with

respect to those expenses. However, the judge reviewed the

evidence related to the children's expenses and ordered the

husband to pay the wife $3,674.50, which was offset by a

judgment of contempt issued simultaneously that found the wife

to owe the husband $3,378.94, which resulted in an order that

the husband shall pay the wife the difference of $295.56 on or

before April 1, 2024. The wife filed a timely notice of appeal

on March 21, 2024.

On May 23, 2024, the wife filed a statement certifying that

she ordered the transcript of the underlying proceedings.2

Pursuant to Rule 30, the wife was supposed to file the

2 The wife did not timely file the certification. See Mass. R. A. P. 9 (d) (2) (B), as appearing in 481 Mass. 1615 (2019) (appellant must file certification that transcript has been ordered within 14 days of filing notice of appeal).

2 transcript within six months of filing the certification that

the transcript had been ordered. See Rule 30 of the

Supplemental Rules of the Probate and Family Court (2019). She

did not. On February 18, 2025, the register sent a written

notice of intent to dismiss the wife's appeal for lack of

prosecution, from which the wife had fourteen days to file a

motion to enlarge the time to file the transcript. See Rule 30

of the Supplemental Rules of the Probate and Family Court

(2019). She did not. After an additional ten days, the

register administratively dismissed her appeal on March 14,

2025. The wife filed a motion to reinstate the appeal, which

the judge denied after a hearing. On appeal, the wife argues

that her failure to file a motion to enlarge the time to produce

a transcript was excusable because her attorney never received

the register's notice of intent to dismiss the underlying

appeal.

Discussion. As an initial matter, we assume without

deciding that the Probate and Family Court judge had the

authority to deny the wife's motion to reinstate. Compare

Caccia v. Caccia, 40 Mass. App. Ct. 376, 378-379 (1996) (Appeals

Court reviewed merits of Probate and Family Court judge's denial

of wife's motion to reinstate appeal), with Maciuca v. Papit, 31

Mass. App. Ct. 540, 545 (1991) ("The appropriate forum . . . for

the [appellant's] attempt to undo the dismissal under rule 30 is

3 an appellate court, not the Probate and Family Court").

Regardless, we ultimately have discretion to consider or dismiss

the wife's underlying appeal. See Mass. R. A. P. 3 (a) (1), as

appearing in 481 Mass. 1603 (2019) ("Failure of an appellant to

take any step other than the timely filing of a notice of appeal

shall not affect the validity of the appeal, but shall be ground

only for such action as the appellate court deems appropriate,

which may include dismissal of the appeal").

To reinstate a civil appeal, an appellant "must show

(1) that the delay was caused by excusable neglect and (2) a

meritorious case on appeal (except where the delay was caused by

a lack of notice)." Howard v. Boston Water & Sewer Comm'n, 96

Mass. App. Ct. 119, 123 (2019). "[E]xcusable neglect is meant

to apply to circumstances that are unique or extraordinary, not

to any 'garden-variety oversight.'" Shaev v. Alvord, 66 Mass.

App. Ct. 910, 911 (2006), quoting Feltch v. General Rental Co.,

383 Mass. 603, 613-614 (1981).

Here, the wife has not demonstrated that her failure to

comply with Rule 30 was justified by excusable neglect. Rule 30

requires the register to send a notice of intent to dismiss the

appeal if the appellant "fail[s] to file the transcript of the

proceedings or the designated portion thereof within six (6)

months of filing the statement of certification" that the

transcript was ordered. Rule 30 of the Supplemental Rules of

4 the Probate and Family Court (2019). Thus, when the wife filed

her certification on May 23, 2024, she was already on notice

that she needed to file the transcript of the underlying

proceedings within six months of that date (in November 2024).3

The wife ultimately benefitted from additional time to file

because the register did not send the notice of intent to

dismiss the underlying appeal until February 2025.

Regardless of whether the wife's attorney ever received the

register's notice of intent to dismiss the underlying appeal,

the wife and her attorney had an obligation to monitor the

docket. See BJ's Wholesale Club, Inc. v. City Council of

Fitchburg, 52 Mass. App. Ct. 585, 588 (2001) (no excusable

neglect in "simple case of reliance by the parties on the

clerk's duty to send notice of orders where they had neglected

their obligation to check the docket entries periodically"

[quotation and citation omitted]); Samuels v. SUFA Corp., 38

Mass. App. Ct. 922, 923 (1995) ("an omission or neglect of the

clerk's office does not absolve appellant's counsel of his

responsibility 'to monitor the progress' of the pending appeal"

3 In light of our conclusion that the wife was on notice of the requirements of Rule 30, the wife's argument that a lack of notice deprived her of due process fails.

5 [citation omitted]). Thus, the failure to timely file a motion

to enlarge was not a result of excusable neglect.4

Order denying motion to reinstate appeal affirmed.

By the Court (Vuono, Henry & Singh, JJ.5),

Clerk

Entered: June 1, 2026.

4 The husband's request for attorney's fees is denied. See Avery v. Steele, 414 Mass. 450, 455 (1993) ("Unpersuasive arguments do not necessarily render an appeal frivolous").

5 The panelists are listed in order of seniority.