Fazio v. Fazio

• Decision Date: 19 June 1978
• Citation: 375 Mass. 394,378 N.E.2d 951
• Parties: James FAZIO, Sr., et al. v. James FAZIO, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 951

378 N.E.2d 951

375 Mass. 394

James FAZIO, Sr., et al. v. James FAZIO, Jr.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 7, 1977.

Decided June 19, 1978.

Jeanne Baker, Cambridge (Philander S. Ratzkoff, Boston, with her), for James C. Fazio, Sr.

Richard L. Neumeier, Boston, for James Fazio, Sr., & another.

William J. O'Neil, Ellen Davis and Kathleen Haley, Boston, for Mental Health Legal Advisors Committee, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, WILKINS and LIACOS, JJ.

QUIRICO, Justice.

These are two appeals by James Fazio, Jr. (James) from decrees entered in the Probate Court for Middlesex County, one placing him under guardianship pursuant to G.L. c. 201, § 6, as appearing in St.1956, c. 314, § 2, ¹ and a second appointing a temporary guardian for him pursuant to G.L. c. 201, § 14, as appearing in St.1956, c. 314, § 7. ² For the reasons stated below we vacate both decrees.

The procedural background of the case is as follows. On January 22, 1970, James Fazio, Sr., and John A. Fazio (plaintiffs), the father and younger brother of James, filed a petition in the Probate Court for Middlesex County seeking appointment of a guardian for the then thirty year old James, pursuant to G.L. c. 201, § 6. The petition alleged that James was a "mentally ill person, and incapable of taking care of himself." The action was consolidated for hearing with an action for separate support brought by Minnie Fazio, the mother of James, against James Fazio, Sr. The consolidated hearing was commenced on April 13, 1971, and the judge entered a decree on June 8, 1972, appointing a guardian. James seasonably appealed from that decree. On October 11, 1972, the plaintiffs petitioned under G.L. c. 201, § 14, for the appointment of a temporary guardian for James pending resolution of the appeal and that petition was allowed on the same date. James also seasonably appealed from that decree.

On November 22, 1972, James requested a report of the material facts, which the judge filed on April 11, 1974. On December 5, 1974, a motion was filed for the appointment of a guardian ad litem to determine whether James should be permitted to pursue his appeals, and it was allowed on January 7, 1975. On July 8, 1975, the guardian ad litem filed a report in which he assented to the prior claims of appeal by James, stating in part, "I am unable to say that an appeal would be frivolous and I believe it would be in James' best interest and emotional stability that it be done."

On May 5, 1977, the parties filed a joint application for direct appellate review, and on May 31, 1977, we granted the application. G.L. c. 211A, § 10(A).

We summarize the material facts concerning James's personal and psychological history as found and reported by the judge. James was one of two sons of James, Sr., and Minnie Fazio, a couple who had lived all of their married lives in Medford, Massachusetts. During his years in grammar and high school, James was a brilliant student. As a result he apparently had an opportunity to attend Yale University, but because his mother did not wish him to be so far away from home, he instead enrolled at Tufts University in Medford. He attended Tufts for only two months, after which time he dropped out and joined the United States Navy without the consent of his parents. However, due to deep emotional stress, he was unable to go through basic training and was sent by the Navy to Philadelphia for treatment. At that time, James was suffering from an obsession of contamination and was found to be in need of further treatment. When James was discharged from the Navy on March 7, 1960, he did not go home, but instead spent six weeks living at the Essex Hotel in Boston.

James developed a neurosis about contamination. When once again living at home, he would spend all of his time cleaning such things as his automobile, the kitchen stove, and the refrigerator, due to his feelings that people would become infected. His cleaning of the kitchen stove, which he ultimately dismantled and threw away, delayed the sale of the family house for some time. James would remonstrate and fight with his brother, John, for contaminating the refrigerator, as a result of which there was much dissension between the two brothers. In one incident, James objected to his father's washing of the windows of the family house because he thought the cloth being used had termite poison on it.

As James's condition seemed to worsen, his father begged him to see a psychiatrist. James refused and his mother supported such a refusal. James had always shown an intense hate for his father, and for the years involved, his mother had been overly protective of him, not allowing him to follow his father's advice. Finally, after further encouragement, James did see Dr. Tillotson, a psychiatrist from Belmont. ³ A long history of James's condition, and of his actions at home and in the Navy hospital, was given to Dr. Tillotson. James was treated three to four times a week in 1961-1962, and was diagnosed at the time as having a definite mental illness, psychoneurosis and schizophrenic personality. Dr. Tillotson recommended that James be treated in a hospital because he had a phobia and obsession concerning contamination. Subsequently, the doctor stated that without hospital treatment further private treatment in the office was hopeless.

During this time period, James's father had suggested on several occasions that James come to work with him. However, James would not work, and on February 18, 1965, Dr. Tillotson gave James a certificate stating that he was unable to work due to mental illness. On December 8, 1970, Dr. Tillotson once again diagnosed James as having a schizophrenic personality, an obsession about contamination, and a definite mental illness. At the hearing on the petition for the appointment of a guardian, Dr. Tillotson recommended that a guardian be appointed to take care of James and his belongings.

The judge concluded his report of the material facts by stating "I observed James very closely on the stand and at the hearing. He showed an intense hate for his father. I feel he is in need of a guardian due to mental illness."

James raises a number of issues on appeal. He contends that (1)(a) the appointment of a permanent guardian was error because the judge did not specifically find that James was "incapable of taking care of himself by reason of mental illness" as required by G.L. c. 201, § 6, and (b) the appointment of a temporary guardian was error because the judge did not find, as prescribed by G.L. c. 201, § 14, that James's "welfare" required the "immediate" imposition of a temporary guardian; (2) the appointment of both a permanent and temporary guardian was error because, on the examination of the record as a whole, there is insufficient evidence to permit either of the findings required by G.L. c. 201, §§ 6 and 14; and (3) G.L. c. 201, §§ 6 and 14, on their face and as applied, unconstitutionally deprive him of the rights of due process and equal protection, secured by the Fourteenth Amendment to the United States Constitution, and by arts. 1, 10, and 12 of the Declaration of Rights of the Constitution of Massachusetts. We consider these issues below.

1. (a) The pertinent provisions of G.L. c. 201, § 6, in force at the time of the hearing and decision in this case, provide that if, after a petition is filed in the Probate Court seeking the appointment of a permanent guardian, notice is given and a hearing held, "the court finds that (a person) is incapable of taking care of himself by reason of mental illness, it shall appoint a guardian of his person and estate." James contends that because the judge did not specifically find that he was "incapable of taking care of himself by reason of mental illness," the ultimate finding that he was in need of a guardian, and the subsequent appointment of such a guardian was error. We agree.

On appellate review of this proceeding, where a report of the material facts has been filed pursuant to the requirement of G.L. c. 214, § 23, repealed by St.1973, c. 1114, § 62, we will not disturb the findings made by the judge below unless they are plainly wrong. However, inasmuch as we have the duty to examine all of the evidence, we can find facts not expressly found by the judge, and can reverse the judge's conclusion if it is tainted by some error of law. See Commonwealth v. DeCotis, 366 Mass. 234, 236, 316 N.E.2d 748 (1974); All Stainless, Inc. v. Colby, 364 Mass. 773, 776, 308 N.E.2d 481 (1974); Richmond Bros. v. Westinghouse Broadcasting Co., 357 Mass. 106, 109, 256 N.E.2d 304 (1970); Willett v. Willett, 333 Mass. 323, 324, 130 N.E.2d 582 (1955).

Here, we need not look further than the face of the reported facts to determine the presence of error. General Laws c. 201, § 6, is explicit as to the nature of the finding required for the appointment of a permanent guardian. The prerequisite finding is two-fold: a person (1) must be found incapable of taking care of himself, (2) by reason of mental illness. ⁴ See Russell v. Russell, 336 Mass. 762, 763, 147 N.E.2d 154 (1958); Willett v. Willett, supra, 333 Mass. at 330, 130 N.E.2d 582; Bashaw v. Willett, 327 Mass. 369, 370, 99 N.E.2d 42 (1951). A finding of mental illness alone, or, as here, a finding that a person is in need of a guardian "due to mental illness," is not sufficient. Clearly, the requirement that a mentally ill person be found incapable of taking care of himself lies at the very heart of a guardianship proceeding. As this court stated long ago, "the (guardianship) decree fixes the Status of the ward . . .. The necessary effect of the decree is that the ward is in law . . . incapable of taking care of himself, as to all the world" (emphasis in original). Leggate v. Clark, 111 Mass. 308, 310 (1873). See Boyd v. Registrars of Voters of Belchertown, 368 Mass. 631, 636, 334 N.E.2d 629 (1...