Foreword
| Brigid Mitchell will be studying law at Roger Williams University in the fall. |
One of the gifts that we can give as “senior attorneys” or “older attorneys” is to mentor someone who wishes to become a lawyer. I have had the honor of mentoring a young woman who wishes to enter law school this coming fall. Brigid Mitchell is a young woman with much promise. I have watched her grow as a child in the neighborhood and have seen her desire to become a lawyer from an early age. This past year, Brigid has worked in my office as a law clerk and she has assisted me in many ways.
One of the many projects she has worked on is a memorandum for me on restitution, which grew out of the Santagate case cited in this article.
As family law practitioners, we recognize that when all else fails and we are looking to do justice in a case, when there is a lack of a legal remedy, we look to the broad umbrella of equity. Equity claims have been utilized in many areas over the past several years by the Probate Court as a way to address the unusual issues that the court faces in resolving family disputes.
The following is the restitution memo Brigid worked on and a sample complaint that I hope is useful to you in your practice as you face the novel issues that arise in family law cases.
— Denise Squillante
Matters of equity and restitution can be applied to child support and alimony disputes by virtue of General Laws chapter 215, section 6, “The Probate and Family Court department shall have original and concurrent jurisdiction with the Supreme Judicial Court and the Superior Court department of all cases and matters of equity cognizable under the general principles of equity jurisprudence and, with reference thereto, shall be courts of general equity jurisdiction.” The equity powers of the Probate and Family Court are “broad and flexible, and extend to actions necessary to afford any relief in the best interests of a person under their jurisdiction.”1 A claim for restitution under the equity principle stems from “unjust enrichment” in which one party has been “unjustly enriched” at the expense of the other. Unjust enrichment is defined as “retention of money or property of another against fundamental principles of justice or equity and good conscience.”2 An example of how this legal principle can be applied to child support or alimony issues is outlined in the 2005 Appeals Court of Massachusetts case, Santagate v. Tower.3
Mary Jayne Santagate and Leo David Tower were married on June 13, 1964. Mary Jayne gave birth to three children between 1965 and 1968. In May 1972, Leo Tower abandoned his three children and wife unexpectedly. He returned only once several days after his abrupt departure to take his children out and he gave the mother a nominal amount of money. Following the father’s total abandonment of his family, the plaintiff filed a petition for separate support and a motion for temporary orders. The father was served with the petition and the motion by mail to his known address at the time. The father did not attend the hearing, however, and the court ordered him to pay $175 per week in child support. In August 1972, the mother filed a libel for divorce, at this point the father’s address was unknown to the mother and the children. The divorce was finalized in April 1973 by which the court entered a judgement of divorce nisi. However, the divorce decree did not contain a support order as the father’s whereabouts were unknown and no such order could therefore be served upon him. During the course of the divorce, the mother filed a complaint for contempt, citing the father’s failure to pay the $175 a week in child support pursuant to the petition for separate support and the motion for temporary orders. However, the action was terminated due to the fact that the father could not be located.
The mother worked as a licensed nurse practitioner after her 1972 divorce. She remarried in 1973 and stopped working. She resumed work as a nurse practitioner in 1977 after the death of her second husband. She was the sole supporter of her children after her divorce. After marrying a third and fourth time, she still continued to work to support her three children, providing them with medical insurance, housing, food, clothing and educational expenditures. During the period after her divorce to Tower she tried unsuccessfully to locate him. After establishing contact with her former mother-in-law, she was informed that Tower was deceased. However, the mother sought no Social Security benefits on the behalf of herself and her children. Tower also remarried after the divorce in 1973. Prior to this second marriage it has been documented that Tower obtained a copy of his judgment of divorce absolute from the Essex Family and Probate Court. Tower was aware of the 1972 divorce action against him and the subsequent absolution of his first marriage; however, he made no attempt to contact his children and his former wife. He went on to father more children in his second marriage.
The three children born of Santagate and Tower sought the assistance of a private detective in the late 1990s in an effort to locate their father. All three children had long reached majority at this point. The private detective was able to locate the father in Dedham. The discovery of his whereabouts now made it possible for the mother to seek injunctive relief. Mary Jayne Santagate, the plaintiff, filed a complaint seeking relief on four counts, (1) equitable relief for the enforcement of a support order; (2) nunc pro tunc establishment of a support order pursuant to Mass.R.Dom.Rel.P. 60(b)(6); (3) alimony and property assignment pursuant to General Laws chapter 208 section 34; and (4) equitable relief in the form of restitution for her support of the children. The trial court dismissed counts one and three on the father’s motion for summary judgement. The last two counts went to trial where the presiding judge dismissed the claims citing a lack of appropriate discretion. The facts of the case created a legal dilemma in light of the case’s peculiarity. The Appeals Court, however, reversed in part, affirmed in part and remanded in part the findings of the trial court.
The Appeals Court determined that the trial judge did not err in its denial of the Mass.R.Dom.Rel.P. 60(b)(6) motion. Mass.R.Dom.Rel.P. 60(b)(6) states,
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party . . . or (6) any other reason justifying relief from the operation of the judgment.
The contentious issues surrounding the mother’s Mass.R.Dom.Rel.P. 6O(b)(6) argument center on the allegations that the father actively concealed his whereabouts and identity in perpetuating the belief that he was no longer living. The trial court judge cited the mother’s languish in attempting to locate her former husband after her remarriage in 1973 to support the denial of the claim under Mass.R.Dom.Rel.P. 60(b)(6). Additionally, the judge found that the mother’s actions did not comport with the claim that she thought her ex-husband to be dead. The almost 30-year delay in bringing the issue back to court after her children had long reached majority made her claims unsubstantiated due to Mass.R.Dom.Rel.P. 60(b)(6)’s “reasonable time” requirement. Determining “reasonable time” falls within the judge’s discretion to which the Appeals Court found no error.
The Appeals Court did however hear the issue of restitution relative to this case. The Appeals Court invoked the Probate and Family Court’s general equity jurisdiction as outlined in General Laws chapter 215, section 6. The trial court judge, however, did acknowledge the ability to award child support under the broad equity principle, but refused to do so given the circumstances of the case; such as, the terminated support order, the children having had reached majority and the lack of use of child support guidelines at the time of the divorce proceedings. However, the Appeals Court argued that the trial court judge “placed too severe a limitation on the general equity powers of the Probate Court ... and that the mother’s claim was broad enough to encompass a claim of restitution for amounts that she had advanced for the support of the children.”4
It is important to note that laches do not apply in this case, as the Appeals Court reasons. Laches can be defined as “neglect to assert right or claim which, taken together with lapse of time and other circumstances, causes prejudice to adverse party.”5 Citing G.E.B. v S.R.W6 and O’Meara v. Doherty,7 “laches may apply to an action for past due or retroactive support, but only if there is proof that there has been an unjustified, unreasonable, and prejudicial delay in bringing the action.” The Appeals Court reasoned that laches do not apply in this case because the defense was unable to prove prejudice on behalf of the mother’s delay in bringing forth the claim. The Appeals Court, citing an Arizona case of a similar nature, Anonymous Wife v. Anonymous Husband,8 noted that “the natural father not only enjoyed the full use of his unrestricted personal funds, but also sat idly by and watched someone else fulfill his legal and moral obligations to children he knew were his own. In such an instance, the scales of equity greatly favor the claimant and preclude us from holding that the defense of laches is available to the natural father.”9
The Appeals Court acknowledged that no error was present when the trial court judge denied payment of retroactive child support but did establish that “the mother’s claim was broad enough to encompass a claim of restitution for amounts that she had advanced for the support of her children.”10 The Appeals Court further found that the father’s retention of monies that were compensated for by the mother constituted “unjust enrichment,” which is a basis for restitution. The 1997 Massachusetts Appeals Court case, Keller v. O’Brien,11 defined restitution as “an equitable remedy by which a person who has been unjustly enriched at the expense of another is required to repay the injured party. It is appropriate only if the circumstances of its receipt or retention are such that, as between the persons it is unjust for one of them to retain it.” The father disputed the equity claim by arguing that the mother was not fervent enough in her efforts to locate him and demand support. The Appeals Court dismissed this contention on the grounds that such an argument is insufficient in the defense of a father’s complete and total abandonment of his inherent responsibility to support his minor children. The Appeals Court supports its reasoning in this case by emphasizing the father’s deplorable behavior in regards to the abandonment of his first family and of his responsibility to support his children. Given the circumstances of the case and the restitution principle in relation to such a case, the Appeals Court deemed it appropriate to award the mother restitution. Such compensation, however, should be based on the amount of money the mother expended to raise and care for her three children during their minority. The case was remanded to the Essex Probate and Family Court to determine an amount of compensation consistent with the Appeals Court decision.
The Massachusetts Supreme Judicial Court heard a similar case to Santagate in 2000, Taverna v. Pizzi.12 The case involves a support claim in which one party was the sole provider for a minor child. The parties involved conceived a child during their divorce proceedings. The child was born four days after the divorce became final. The plaintiff, Tracey Ann Taverna, filed a complaint in the Middlesex Probate Court seeking “orders establishing paternity and providing for payment of child support.” The defendant acknowledged paternity and the judge entered temporary orders of support. The presiding judge held an evidentiary hearing after which the complaint was dismissed and transferred to the divorce docket. Because the separation agreement of the divorce was incorporated but not merged into the final judgement of divorce, the judgement of divorce, the judge vacated the portion approving the separation agreement and modified the judgement nisi to (a) grant the plaintiff sole legal and physical custody of the child, with the defendant to have visitation as mutually agreed on; (b) determine that the defendant was responsible for paying child support from the date of the child’s birth to the date on which he commenced paying child support pursuant to the temporary order previously entered, in an amount of $200 each week, obtained by wage assignment; (c) order the defendant to acquire a life insurance policy on his life in the amount of $150,000, designating the child as the irrevocable beneficiary thereunder; (d) direct the defendant to establish a college education fund for the child by depositing $50 each week into such account with any unspent principle and interest in the fund to be given outright to the child when she reached 23 years of age; (e) order the defendant to convey to the plaintiff a 50 percent interest in his 401(k); and (f) establish past due child support owed by the defendant in the amount of $50,000, with payment of that sum to be made within five years in the form of monthly payments to the plaintiff made through an interest bearing promissory note secured by the defendant’s interest in a parcel of real estate owned jointly by the defendant and his brother.13 The SJC upheld all of the trial court judge’s orders with the exception of distributing the unspent principle and interest of the college to the child at age 23, and the order giving the plaintiff 50 percent of the defendant’s 401(k).
The defendant argued that the trial court judge had no authority to award retroactive support as part of a modification agreement. The SJC disagreed, and in support of the trial court judge’s decision of ordering retroactive support, stated:
We need not ponder over the precise course of the judge’s authority with respect to the retroactive child support orders. The judge clearly had the power, pursuant to the general equity jurisdiction conferred on the Probate and Family Court Department by G.L. c. 215, § 6, if from no other source, to consider the child a legitimate child of the parties; to order the defendant to make ongoing weekly payments of child support for her; to determine, and order paid by the defendant, past child support; and to provide payment with suitable security for the $50,000 amount computed as the past support owed.14
The SJC reasoned that the general equity jurisdiction of the Probate and Family Court can be applied to award retroactive child support. The issue was later explored and elaborated upon with Santagate in the Appeals Court.
The Santagate case set forth a standard by which Massachusetts courts can look at equity matters regarding child support and alimony. The case opens up a new legal avenue in which to make a claim for support owed. The “unjust enrichment” principle regarding equity and restitution, as cited in the Santagate case, is entirely applicable to such issues of the support of minor children falling solely on one party. The trial court judge’s decision to not award restitution in the Santagate case could perhaps be additionally explained by the lack of an explicit application of such in the language of the statute that refers to child support arrearage, General Laws chapter 208, section 28. However, as the Appeals Court acknowledges, the probate courts have a broad jurisdiction over equity issues regarding guardianship of minors and incompetents.15 This jurisdiction can go beyond the language of the statutes referring to support, nonpayment of and arrearage. This was the first case to be heard by the Appeals Court on the issue of restitution under the broad equity powers of the probate and family courts, which involved a substantial delay in seeking such a claim. However, the broad nature of such equity issues can allow such compensation despite such a significant lapse in time, given that the claim is legitimate. Based on this, restitution claims in similar circumstances can cite the Santagate reasoning in support of the claim.
End notes
1. Matter of Moe, 385 Mass. 555, 561 (1982).[back]
2. Taylor Woodrow Blitman Contr. Corp. v. Southfield Gardens Co., 534 F.Supp 340, 347 (D.Mass. 1982), quoting from 66 Am.Jur.2d Restitution and Implied Contracts
§ 63(1962).[back]
3. 64 Mass. App. Ct. 324 (2005).[back]
4. Santagate v. Tower, 64 Mass. App. Ct. 324 (2005).[back]
5. Black’s Law Dictionary 5th Ed. West Publishing Company, St. Paul, Minnesota, 1979.[back]
6. 422 Mass. 158 (1996).[back]
7. 53 Mass.App.Ct. 599 (2002).[back]
8. 153 Ariz. 577-578, (1987).[back]
9. Anonymous Wife v. Anonymous Husband, l53 Ariz. 577-578 (1987).[back]
10. Santagate, 64 Mass. App. Ct. 324.[back]
11. 425 Mass. 774, 778-779 (1997).[back]
12. 430 Mass. 885 (2000).[back]
13. Taverna v. Pizzi,430 Mass. 885 (2000).[back]
14. Id.[back]
15. Barry M. Feinberg v. Marilyn Diamant, 378 Mass. 131 (1979).[back]