Cox v. Cox, 99-P-1509.

• Decision Date: 31 December 2002
• Docket Number: No. 99-P-1509.,99-P-1509.
• Parties: Nancy L. COX & another<SMALL><SUP>1</SUP></SMALL> v. Richard E. COX.
• Court: Appeals Court of Massachusetts

780 N.E.2d 951

56 Mass. App. Ct. 864

Nancy L. COX & another¹ v. Richard E. COX.

No. 99-P-1509.

Appeals Court of Massachusetts, Essex.

Argued October 9, 2001.

Decided December 31, 2002.

Edward M. Mahlowitz, Belmont (John L. Mason, Jr., with him), pro se.

Lisa Stern Taylor for the defendant.

Present: LENK, COWIN, & McHUGH, JJ.

LENK, J.

Reduced to essentials, the issue before us is whether a Probate Court judge erred in determining that the appellee Richard Cox is entitled to repayment from Edward Mahlowitz, his former wife's lawyer, of counsel fees that Cox had paid to Mr. Mahlowitz pursuant to a judgment that was subsequently reversed on appeal.

I. Factual and procedural background. We distill and summarize such of the somewhat convoluted facts of record as are relevant to the issue on appeal. The plaintiff is Nancy Cox (wife),² the former wife of the defendant-appellee Richard Cox (husband). The wife retained Attorney Edward Mahlowitz — the true appellant here³ — to represent her following the entry of a divorce judgment that was predicated upon a settlement agreement as to which she apparently later had second thoughts. Mr. Mahlowitz thereafter successfully moved on the wife's behalf to vacate the judgment as to the division of marital property, and following trial, a new judgment that was more favorable to the wife in that regard entered. In connection with these and related matters,⁴ as well as certain contempt proceedings against the husband, Mr. Mahlowitz requested, again on the wife's behalf, the award of his counsel fees and costs. The judge ordered, as part of the amended judgment on further division of the marital assets, that the husband pay to Mr. Mahlowitz, as attorney for the wife, presumably pursuant to G.L. c. 208, § 38, and G.L. c. 215, § 34A,⁵ approximately $30,000 in counsel fees, a sum that was less than half of the fee requested.⁶ Thereafter, Mr. Mahlowitz again sought fees and costs specifically in connection with his prosecution of a second complaint for contempt and was awarded $1,075.00, presumably pursuant to G.L. c. 215, § 34A, as requested, and again less than half of the amount sought. The husband ultimately paid Mr. Mahlowitz the fees awarded.

The husband appealed both from the order vacating the judgment of divorce and from the subsequent judgment further dividing the marital assets. The wife retained new counsel to handle the appeal, who apparently elected not to appeal on her behalf from any portion of the judgments adverse to the wife. A panel of this court, in an unpublished memorandum and order issued pursuant to rule 1:28, Cox v. Cox, 44 Mass.App.Ct. 1118, 694 N.E.2d 52 (1998) (our memorandum and order), determined that it was error for the Probate Court judge to have allowed the wife's motion to vacate the judgment, stating:

"It follows that the section 34 hearing, the amended judgment .. that resulted from the hearing, and all orders arising out of the allowance of the motion to vacate and the entry of amended judgment were nullities.

"The allowance of the plaintiff's motion to vacate the divorce judgment is vacated, and the original judgment of divorce is reinstated. The case is remanded to the Probate Court for the purpose of acting upon any application of the defendant to restore the parties to the status quo ante, consistent with this opinion."

In short order thereafter, the husband moved to "restore the parties to status quo ante," the Probate Court judge whose orders had been reversed on appeal abruptly recused himself sua sponte and without explanation, and the wife filed for bankruptcy. Despite the suggestion of bankruptcy and motion to continue filed on the wife's behalf, a different Probate Court judge (the motion judge) acted on the husband's motion and ordered the wife to take certain actions to restore the husband to his former position. As the husband requested, in addition to nullifying certain qualified domestic relations orders concerning pension benefits, the motion judge ordered the wife to pay the husband the $127,120 previously awarded her, plus interest, and to pay the husband $47,301.43 in counsel fees incurred in connection with the trial and appeal. As particularly relevant here, the order of the motion judge also stated that:

"Nancy L. Cox, and her attorney, Edward Mahlowitz, are hereby ordered to pay to the defendant, Richard E. Cox, the amount of ... $31,075 together with interest at the rate of ... 12% per annum from May 31, 1996 to date of payment, within ... 30 days of this Court's order."

This order as to Mr. Mahlowitz entered despite the fact that he had not been served with the husband's "Motion to Restore Parties to Status Quo Ante Pursuant to Appeals Court Decision" and did not participate in the hearing, just as he had not participated in the appeal. In the motion judge's written rationale for the order, he notes — presumably on the basis of inferences he drew from our memorandum and order — that the equities favored the husband since the wife and Mr. Mahlowitz had been "less than candid with the Court" in bringing the motion pursuant to Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), which was "without substance," "a meritless proceeding," and prosecuted in "bad faith."

Mr. Mahlowitz, upon being notified of the judge's order, successfully moved to stay and vacate the order insofar as it concerned him. Sua sponte, however, the judge joined Mr. Mahlowitz as a party plaintiff and, following an April 1, 1999 limited evidentiary hearing,⁷ ordered him to repay the $31,075. The judge observed that:

"[I]t was he who initiated the [r]ule 60(b) proceeding ... which the Appeals Court found to be without merit. Further, Attorney Mahlowitz was notified by counsel for the husband of the appeal. He knew or should have known that if the appeal were successful, all orders made by the judge including those for attorney's fees, were in jeopardy.

"Inasmuch as the judgment ... is a nullity, it follows that the order to pay legal fees to Attorney Mahlowitz pursuant to that nullified judgment is, in and of itself, a nullity. Only by repayment of the $31,075 can the husband (a party) be restored to the status quo ante [sic] contemplated by the Appeals Court decision ....

"Inasmuch as Attorney Mahlowitz did not receive any interest on any amounts paid to him and there has been no finding of unethical or improper conduct on Attorney Mahlowitz's part (other than the statement in the Appeals Court decision that the allegations in the [r]ule 60(b) motion were "at the very least, inexplicable") in my discretion, I believe it would be inequitable to award interest retroactively."

Mr. Mahlowitz complied with the order and paid the husband, then timely filed this appeal in which the wife did not participate.

II. Discussion. On appeal, Mr. Mahlowitz challenges on numerous grounds the order requiring him to repay counsel fees. He contends, variously, that the Probate Court was without subject matter jurisdiction to make such an order, that the motion judge erred in joining him as a party plaintiff, that the husband did not raise or preserve the counsel fee issue on appeal or give Mr. Mahlowitz timely notice that he was asserting such a claim against him, that the motion judge misinterpreted the scope and effect of this court's memorandum and order, and that his constitutional rights were violated.

In addressing this plethora of claims, we are struck by the fact that neither the husband nor Mr. Mahlowitz denominated the remedy that the husband sought by its proper name — restitution — and that they did not bring either to our attention or to the attention of the motion judge any pertinent cases or authorities on the subject. The resulting misdirection may account for the somewhat scattershot nature of many of the issues raised on appeal, the bulk of which can be disposed of with dispatch. This same misdirection, however, also necessitates a remand to permit consideration anew of the question whether the husband is entitled to a remedy in restitution against Mr. Mahlowitz, this time on the basis of relevant factors that we later outline.

Subject matter jurisdiction. There is no merit in Mr. Mahlowitz's contention that the Probate Court was without jurisdiction to order him to make repayment. While the Probate Court is a court of limited jurisdiction, it has general equity powers. See G.L. c. 215, § 6; Young v. Department of Pub. Welfare, 416 Mass. 629, 624 N.E.2d 110 (1993). "Our Probate Court ... [possesses] inherent powers apart from statutory authorization. These powers are broad and flexible, and extend to actions necessary to afford any relief in the best interests of a person under their jurisdiction." Matter of Moe, 385 Mass. 555, 561, 432 N.E.2d 712 (1982). The court accordingly has the power to correct what has been wrongfully done, such as ordering a restitution of monies obtained under the court's statutory authority after the decision has been overturned. See, e.g., Keller v. O'Brien, 425 Mass. 774, 683 N.E.2d 1026 (1997) (Keller II); Heron v. Heron, 428 Mass. 537, 703 N.E.2d 712 (1998). See also United States v. Morgan, 307 U.S. 183, 197, 59 S.Ct. 795, 83 L.Ed. 1211 (1939) (courts have inherent authority to order restitution).

Joinder. The motion judge sua sponte joined Mr. Mahlowitz as a party plaintiff, citing Edinburg v. Edinburg, 22 Mass.App. Ct. 192, 492 N.E.2d 1159 (1986), and Mass.R.Dom.Rel.P. 19(a). The sua sponte aspect of the joinder is beyond dispute under the rule. However, insofar as the husband maintained in his motion papers that the wife was jointly and severally liable for the counsel fee awarded, Mr. Mahlowitz was not technically a necessary party for joinder purposes. See Mongeau v. Boutelle, 10 Mass.App.Ct. 246, 253, 407 N.E.2d 352 (1980). Nonetheless, we think the point without consequence here since the husband had an independent cause of action in restitution against Mr. Mahlowitz which he could have asserted...