Guardianship of Kelvin

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24-P-377 Appeals Court

GUARDIANSHIP OF KELVIN.1

No. 24-P-377.

Essex. October 2, 2025. - April 21, 2026.

Present: Hand, Hodgens, & Tan, JJ.

Guardian. Minor, Guardian ad litem. Parent and Child, Custody
of minor. Probate Court, Guardian. Practice, Civil,
Appointment of guardian, Contempt. Contempt. Due Process
of Law, Hearing.

Petition for appointment of a guardian for a minor filed in
the Essex Division of the Probate and Family Court Department on
March 16, 2012.

Complaints for contempt, filed on March 10 and 30, 2023,
were heard by Jennifer M.R. Ulwick, J., and a hearing to review
compliance with a decree was had before Michael D. Anderson, J.

Jennifer R. DeFeo for the guardian.
Jeanne M. Kaiser for the child.
Michael S. Penta for the mother.

HODGENS, J. Following a trial on two contempt complaints,

a judge of the Probate and Family Court concluded that the

1 A pseudonym.
2

guardian of Kelvin "is not currently adjudged in contempt." Two

months later, a second judge adjudicated the guardian in

contempt purportedly under the first of the two complaints.

Concluding that the proceedings before the second judge did not

comport with due process, we vacate the judgment of contempt by

the second judge on the first complaint.

Background. After a parenting-time decree, dated February

4, 2023, entered, the mother of Kelvin filed two contempt

complaints against her child's guardian. In the first complaint

(filed March 10, 2023), the mother claimed the guardian violated

the decree by failing to cooperate with parenting time on

February 19 and March 6, and in the second complaint (filed

March 30, 2023), the mother claimed that the guardian failed to

communicate with the mother to arrange telephone or electronic

communications between the mother and the child and failed to

provide privacy during the communications.

On April 26, 2023, as to both complaints, the first judge

heard testimony from the mother, the guardian, and a social

worker. Applying the standard for civil contempt under

Birchall, petitioner, 454 Mass. 837, 852-853 (2009), the judge

issued an eleven-page decision on July 7, 2023, and concluded

that the mother proved by "clear and convincing evidence . . .

that the [d]ecree granting her parenting time is clear and

unequivocal and that her parenting time did not occur as
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scheduled." The judge further concluded that the guardian had

"ignored" the mother despite knowing that he had been ordered

"to help facilitate the parenting time." The judge found,

however, that "the [g]uardian is not currently adjudged in

contempt." Additionally, the judge ordered the parties to

"immediately comply" with the decree, modified the terms of the

decree, and set a "compliance review hearing" for September 28,

2023.

On the compliance review hearing date, a second judge held

a nonevidentiary hearing where counsel provided updates on

parenting time since July 7. After patiently hearing extensive

updates, the second judge asked the mother's counsel, "So,

again, what are you asking me to do today? You want me to go to

judgment and find [the guardian] . . . ." Counsel interjected,

"Guardian in contempt, absolutely, and again, sanctions." The

judge said, "I'll take the contempts under advisement." In a

four-page decision dated September 29, 2023, the second judge

found the guardian in contempt as to the first complaint,

declined to impose financial sanctions, and issued further

orders. As to the second complaint, the second judge concluded:

"As far as the telephonic and/or electronic communication, [the]

[m]other did not establish when, if ever, these sessions were

denied without explanation and/or justification." The guardian

and the child appeal.
4

Discussion. Although arising from a pending case, a

contempt cause of action requires a "separate proceeding to be

tried apart from the original case, and the requirements of due

process must be met." Crystal, petitioner, 330 Mass. 583, 588

(1953). A "complaint for contempt should be tried on its merits

forthwith." Kelley v. Kelley, 374 Mass. 826, 827 (1978).

Before being adjudged in civil contempt for conduct occurring

outside the presence of a judge, "one is entitled as a matter of

due process to be advised of the charges against him, to have a

reasonable opportunity to respond to the charges, and to retain

private counsel to represent the alleged contemnor at trial, to

testify in his defense at trial, and to call witnesses on his

behalf." See Birchall, petitioner, 454 Mass. at 853–854.

Because the first judge had previously resolved the first

complaint in the guardian's favor through an adjudication, the

hearing before the second judge on the same complaint did not

satisfy the requirements of due process, and the second judge

erred by finding the guardian in contempt. At that hearing, the

second judge heard updates from counsel on parenting time since

July 7. Without any new complaint and without the presentation

of any evidence, the second judge found the guardian in contempt

-- purportedly in connection with the first complaint that had

been previously resolved by the first judge in the guardian's

favor. By failing to advise the guardian of any new charges
5

against him and to provide him with a reasonable opportunity to

respond and present evidence, the summary procedure employed by

the second judge did not comport with the requirements of due

process. See Birchall, petitioner, 454 Mass. at 853–854.

Therefore, the contempt judgment of the second judge as to the

first complaint is vacated.

As the record suggests, the second judge's contempt finding

gently avoided imposing any financial sanction in the hope of

overcoming resistance while still encouraging a spirit of

cooperation. The judge's good intentions, however, cannot carry

the day when due process is lacking. See, e.g., Furtado v.

Furtado, 380 Mass. 137, 140 n.2 (1980) (allegations of

defendant's defiance must be "referred to in the complaint");

Sodones v. Sodones, 366 Mass. 121, 129 (1974) (defendant must be

informed "prior to the beginning of the hearing, where, when, or

in what manner he had violated the order"); Mills v. Mills, 4

Mass. App. Ct. 273, 278 (1976) ("only contempt which has been

charged" in complaint may be considered). While achieving an

intended result is certainly important, the process used to

reach that result is equally important.

We disagree with the mother's contention that the first

judge did not actually render a judgment at all and merely

"deferred adjudicating whether [the] [g]uardian was in contempt"

while various motions were pending and while the second judge,
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who was assigned to the case, was temporarily unavailable. In

support, she points to the docket reference to the first judge's

decision as an "order" rather than a "judgment." The substance

of the record, however, shows that the first judge rendered a

judgment on the two pending March complaints. After hearing

evidence from three witnesses, referencing the two pending

complaints at issue, composing extensive findings of fact, and

applying the standard for contempt as set forth in the case of

Birchall, petitioner, 454 Mass. at 852-853, the first judge

expressly found that "the [g]uardian is not currently adjudged

in contempt." Despite the heading of the judge's decision and

the docket entry referencing an "order" rather than a "judgment"

that may well have misled the second judge into believing that

the complaints had not been adjudicated, the entirety of the

record shows a carefully reasoned and resolute decision by the

first judge rather than an effort to defer taking any action.

See Poras v. Pauling, 70 Mass. App. Ct. 535, 540 (2007)

(reviewing court looks to substance of decision rather than

"[t]he label"). Where a defendant has been adjudicated either

in contempt or not in contempt, a judgment, not an order, should

be entered on the docket.

Moreover, a contempt proceeding is not an open-ended case

that indefinitely tracks an underlying case; instead, a contempt

proceeding is "a separate proceeding to be tried apart from the
7

original case." Crystal, petitioner, 330 Mass. at 588. The

Supreme Judicial Court requires that a "complaint for contempt

should be tried on its merits forthwith." Kelley, 374 Mass. at

827. An expeditious resolution of the contempt complaint is not

only important to the parties involved, but it is also important

to the administration of justice. See Cooke v. United States,

267 U.S. 517, 539 (1925) (power of contempt is indispensable for

"protecting the due and orderly administration of justice, and

in maintaining the authority and dignity of the court").

Delaying contempt decisions indefinitely, as the mother suggests

was done by the first judge, thwarts the remedial purpose sought

by the aggrieved complainants, leaves the alleged contemnors

under the constant dread of sudden sanctions, and fails to

vindicate the authority of the court. The record showing a

full-fledged evidentiary hearing followed by findings of fact

and conclusions of law contradicts the mother's contention that

the first judge simply declined to make a decision and embraced

an indefinite delay.

Based on the foregoing, the judgment dated September 29,

2023, and entered on October 3, 2023, adjudicating the guardian

in contempt on the first complaint is vacated.

So ordered.