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-513
FRANKLIN CARABALLO
vs.
ANNY HOLGUIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Franklin Caraballo (father), appeals from a
February 27, 2025, judgment of the Probate and Family Court that
adjudicated his contempt complaint in favor of the defendant,
Anny Holguin (mother). The complaint alleged that the mother
violated the explicit terms of a stipulated judgment by failing
to timely disclose the contact information for the parties'
child's medical providers, and by failing to facilitate weekly
video communications between the father and the child. The
judge found that the mother was not in contempt, but ordered
that the father be given two makeup sessions of video
communications with the child. The father argues that the judge abused her discretion in declining to hold the mother in
contempt. We affirm.
Background. The parties were divorced in 2020, and the
mother was granted sole legal custody and primary physical
custody of the child. The parties agreed to a stipulation,
which entered as a judgment on June 28, 2024, permitting the
mother to permanently remove the child from Massachusetts to New
York. The stipulated judgment provided, among other things,
that: (1) within thirty days of relocation, the mother "shall
provide the father with the name, address, and contact
information of all schools, doctors, dentists, and therapists
where [the child] will be affiliated"; and (2) "[t]he father
shall have video communication with the minor child every
Saturday at 10 A.M. for at least 30 minutes." The mother and
the child moved to New York on July 15, 2024.
On October 29, 2024, the father filed the complaint for
contempt, alleging that the mother failed to provide him with
contact information for the child's new medical providers within
thirty days of the move. The complaint also alleged that on one
occasion the mother denied his attempt to communicate with the
child, and on another occasion the father was limited to a
three-minute call with the child instead of the required thirty
minutes. The father subsequently filed motions for additional
parenting time.
2 The contempt complaint was tried on February 26, 2025.
After considering evidence including the testimony of both
parents, the judge concluded that the father had not met his
burden to prove that the mother was in contempt of a court
order. Even so, the judge granted the father two additional
makeup video communications with the child. The father appeals.
Discussion. 1. Contempt. As the plaintiff in the
contempt action, the father bore the burden to prove by clear
and convincing evidence that the mother acted in "clear and
undoubted disobedience of a clear and unequivocal command"
(citation omitted). Birchall, petitioner, 454 Mass. 837, 853
(2009). In determining whether the father met that burden, the
judge was required to consider "the totality of the
circumstances." Voorhis v. Relle, 97 Mass. App. Ct. 46, 54
(2020), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844
(2009). We review for an abuse of discretion the judge's ruling
that the mother was not guilty of contempt. See L.F. v. L.J.,
71 Mass. App. Ct. 813, 821 (2008).
As the judge found, the stipulated judgment required that
"[t]he mother shall provide the father . . . in writing within
30 days of relocation" "the name, address, and contact
information of all schools, doctors, dentists, and therapists
where [the child] will be affiliated." The judge credited the
mother's testimony that the child's doctor and dentist were
3 still the ones the child had seen in Massachusetts, because the
child had not yet seen a doctor or dentist in New York. The
judge found that the father "has not shown that [the child] has
any new provider in New York for whom [the m]other should have
provided" him with contact information. Especially given the
somewhat ambiguous nature of the order requiring the mother to
provide information "within 30 days" of the move for care
providers with whom the child "will be affiliated," we discern
no abuse of discretion in the judge's finding that the father
had not met his burden to prove that the mother had clearly and
undoubtedly disobeyed a clear and unequivocal command. See
Birchall, petitioner, 454 Mass. at 852-853. Contrast Jones v.
Jones, 101 Mass. App. Ct. 673, 688 (2022) (wife's failing to
tell husband that children applied to and enrolled in private
school clearly and undoubtedly disobeyed parties' separation
agreement).
As for the father's video communications with the child,
the judge found that the stipulated judgment provides that the
father "shall have video communication with the minor child
every Saturday at 10 A.M. for at least 30 minutes." However,
the judge noted, the stipulated judgment "does not specify who
is to initiate the communications nor the mode of
communications." The judge found that in July 2024, the tablet
computer that the mother had ordered for the child to use for
4 video visits had not yet arrived, and so the mother offered that
the father could call the child on the maternal grandmother's
telephone, an alternative that the mother knew might be
unacceptable to the father because he and the maternal
grandmother had a strained relationship. On another occasion,
the father was having trouble reaching the child, and text
messages between the parties indicated that the child had
disabled the computer tablet by repeatedly inputting the wrong
passcode. The mother then offered to have the child call the
father on the mother's cell phone. The judge found that because
the mother "offered an alternative for the communications to
occur," but the father "did not offer another solution for the
communications," the father had not proven that the mother
clearly and undoubtedly disobeyed the video communication
provision of the stipulated judgment.
We discern no abuse of discretion in the judge's
conclusion. The lack of abuse of discretion is further shown by
the fact that, despite finding the mother not in contempt, the
judge provided to the father two additional video communications
with the child. See Pare v. Pare, 409 Mass. 292, 298-299 (1991)
(noting probate judges possess broad discretion to fashion
judgments that protect interests of children). As for the
father's argument that the judge should not have credited the
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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
25-P-513
FRANKLIN CARABALLO
vs.
ANNY HOLGUIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Franklin Caraballo (father), appeals from a
February 27, 2025, judgment of the Probate and Family Court that
adjudicated his contempt complaint in favor of the defendant,
Anny Holguin (mother). The complaint alleged that the mother
violated the explicit terms of a stipulated judgment by failing
to timely disclose the contact information for the parties'
child's medical providers, and by failing to facilitate weekly
video communications between the father and the child. The
judge found that the mother was not in contempt, but ordered
that the father be given two makeup sessions of video
communications with the child. The father argues that the judge abused her discretion in declining to hold the mother in
contempt. We affirm.
Background. The parties were divorced in 2020, and the
mother was granted sole legal custody and primary physical
custody of the child. The parties agreed to a stipulation,
which entered as a judgment on June 28, 2024, permitting the
mother to permanently remove the child from Massachusetts to New
York. The stipulated judgment provided, among other things,
that: (1) within thirty days of relocation, the mother "shall
provide the father with the name, address, and contact
information of all schools, doctors, dentists, and therapists
where [the child] will be affiliated"; and (2) "[t]he father
shall have video communication with the minor child every
Saturday at 10 A.M. for at least 30 minutes." The mother and
the child moved to New York on July 15, 2024.
On October 29, 2024, the father filed the complaint for
contempt, alleging that the mother failed to provide him with
contact information for the child's new medical providers within
thirty days of the move. The complaint also alleged that on one
occasion the mother denied his attempt to communicate with the
child, and on another occasion the father was limited to a
three-minute call with the child instead of the required thirty
minutes. The father subsequently filed motions for additional
parenting time.
2 The contempt complaint was tried on February 26, 2025.
After considering evidence including the testimony of both
parents, the judge concluded that the father had not met his
burden to prove that the mother was in contempt of a court
order. Even so, the judge granted the father two additional
makeup video communications with the child. The father appeals.
Discussion. 1. Contempt. As the plaintiff in the
contempt action, the father bore the burden to prove by clear
and convincing evidence that the mother acted in "clear and
undoubted disobedience of a clear and unequivocal command"
(citation omitted). Birchall, petitioner, 454 Mass. 837, 853
(2009). In determining whether the father met that burden, the
judge was required to consider "the totality of the
circumstances." Voorhis v. Relle, 97 Mass. App. Ct. 46, 54
(2020), quoting Wooters v. Wooters, 74 Mass. App. Ct. 839, 844
(2009). We review for an abuse of discretion the judge's ruling
that the mother was not guilty of contempt. See L.F. v. L.J.,
71 Mass. App. Ct. 813, 821 (2008).
As the judge found, the stipulated judgment required that
"[t]he mother shall provide the father . . . in writing within
30 days of relocation" "the name, address, and contact
information of all schools, doctors, dentists, and therapists
where [the child] will be affiliated." The judge credited the
mother's testimony that the child's doctor and dentist were
3 still the ones the child had seen in Massachusetts, because the
child had not yet seen a doctor or dentist in New York. The
judge found that the father "has not shown that [the child] has
any new provider in New York for whom [the m]other should have
provided" him with contact information. Especially given the
somewhat ambiguous nature of the order requiring the mother to
provide information "within 30 days" of the move for care
providers with whom the child "will be affiliated," we discern
no abuse of discretion in the judge's finding that the father
had not met his burden to prove that the mother had clearly and
undoubtedly disobeyed a clear and unequivocal command. See
Birchall, petitioner, 454 Mass. at 852-853. Contrast Jones v.
Jones, 101 Mass. App. Ct. 673, 688 (2022) (wife's failing to
tell husband that children applied to and enrolled in private
school clearly and undoubtedly disobeyed parties' separation
agreement).
As for the father's video communications with the child,
the judge found that the stipulated judgment provides that the
father "shall have video communication with the minor child
every Saturday at 10 A.M. for at least 30 minutes." However,
the judge noted, the stipulated judgment "does not specify who
is to initiate the communications nor the mode of
communications." The judge found that in July 2024, the tablet
computer that the mother had ordered for the child to use for
4 video visits had not yet arrived, and so the mother offered that
the father could call the child on the maternal grandmother's
telephone, an alternative that the mother knew might be
unacceptable to the father because he and the maternal
grandmother had a strained relationship. On another occasion,
the father was having trouble reaching the child, and text
messages between the parties indicated that the child had
disabled the computer tablet by repeatedly inputting the wrong
passcode. The mother then offered to have the child call the
father on the mother's cell phone. The judge found that because
the mother "offered an alternative for the communications to
occur," but the father "did not offer another solution for the
communications," the father had not proven that the mother
clearly and undoubtedly disobeyed the video communication
provision of the stipulated judgment.
We discern no abuse of discretion in the judge's
conclusion. The lack of abuse of discretion is further shown by
the fact that, despite finding the mother not in contempt, the
judge provided to the father two additional video communications
with the child. See Pare v. Pare, 409 Mass. 292, 298-299 (1991)
(noting probate judges possess broad discretion to fashion
judgments that protect interests of children). As for the
father's argument that the judge should not have credited the
mother's testimony, we accord substantial deference to the
5 credibility determinations by "the judge who saw the witnesses
and heard the evidence." Pierce v. Pierce, 455 Mass. 286, 293
(2009).
2. Motion for recusal. The father next asserts that the
motion judge did not appropriately consider his motion and
should have recused herself for a variety of reasons. Just
before the contempt trial, the father filed a motion for recusal
of the judge, "due to the appearance of partiality and failure
to respond to motions within the required time frame." After
the judge explained that if she recused herself, the case would
be assigned to a different judge on another date, the father
withdrew the motion for recusal. The father told the judge, "I
prefer that you stay with me" and "I decide to continue with
you." Thus, the father withdrew his recusal motion, and we do
not consider the issue further.
3. Motions for additional parenting time. The father also
argues that his due process rights were violated in various
ways. After careful review of the appellate record, we conclude
that the judge appropriately protected the father's
constitutional rights during the contempt hearing.
In particular, the father argues that the judge was
required to allow his motions for additional parenting time. At
the contempt hearing, the judge explained that, to obtain that
relief, the father needed to file a complaint for modification
6 in New York, because the child had lived there for more than six
months as of that date.1 See Guardianship of Minor Children, 97
Mass. App. Ct. 316, 321 (2020) (Massachusetts court had no
jurisdiction where children had lived in California for at least
six consecutive months before date father's petitions were filed
and California was their home State). The judge was not
required to allow motions that she believed should be presented
to a court having jurisdiction. On the record before us, we
cannot conclude that she abused her discretion.2
Judgment dated February 27, 2025, affirmed.
By the Court (Rubin, Grant & Hodgens, JJ.3),
Clerk
Entered: February 10, 2026.
1 The father argued that he had filed his motions for more parenting time within six months of the child's move to New York. The father has not argued, in the trial court or in this court, that the judge was required to treat those motions as a complaint for modification.
2 The father's request for "legal costs" is denied. Any arguments raised by the father but not mentioned in this decision "have not been overlooked. We find nothing in them that requires discussion." Commonwealth v. Sosa, 493 Mass. 104, 124 n.12 (2023), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
3 The panelists are listed in order of seniority.