Hamilton v. Pappalardo

• Decision Date: 22 May 1997
• Docket Number: No. 95-P-794,95-P-794
• Citation: 677 N.E.2d 1176,42 Mass.App.Ct. 471
• Parties: Nancy Lee HAMILTON 1 v. Salvatore PAPPALARDO, Jr.
• Court: Appeals Court of Massachusetts

Page 1176

677 N.E.2d 1176

42 Mass.App.Ct. 471

Nancy Lee HAMILTON ¹ v. Salvatore PAPPALARDO, Jr.

No. 95-P-794.

Appeals Court of Massachusetts,

Bristol.

Argued Oct. 15, 1996.

Decided April 11, 1997.

Further Appellate Review Denied May 22, 1997.

Max Volterra, Attleboro, for plaintiff.

John F.D. Jacobi, III, Attleboro, for defendant.

Before DREBEN, GILLERMAN and JACOBS, JJ.

JACOBS, Justice.

The separation agreement of the parties was incorporated and merged in their 1980 divorce judgment. It provided that the plaintiff was to have custody of the two children of the parties, Steven, then six years old, and Alison, then three years old, and that the husband pay weekly support of forty-five dollars per child. Among its other provisions were the following:

"The Wife shall keep the Husband informed of all matters affecting the children's health and including the results of all consultations with doctors."

"The parties have intentionally omitted any description of further liability for the education, tuition, room, boarding, and books of their children. The parties stipulate that in the absence of their future agreement on that matter, the Court having appropriate jurisdiction shall adjudicate said liability at the appropriate time and in view of the law then appropriate."

On June 19, 1990, the plaintiff filed a "complaint for modification" alleging changes in circumstances in the form of an increased need for child support and as a result of Steven having been diagnosed "on or about July 24, 1987," as being moderately to severely learning disabled, necessitating private schooling for the two prior years at a cost of approximately $27,950 per year. She requested that the divorce judgment be modified by increasing child support from $45 to $135 per week per child and ordering the defendant "to contribute ... to the cost of the special education" of Steven.

After a trial, a judge of the Probate and Family Court, on September 9, 1994, made findings of fact, none of which is contested and which establish the following: Steven is "a special needs child" with motor, speech, and thought process deficiencies. He attended the Norton public schools through the seventh grade, receiving special needs services pursuant to an Individual Education Plan (IEP). In 1987, the plaintiff was notified by the Norton school system that Steven was not doing well and that intervention was required. She sought advice and assistance from various officials and professionals. As a result, she retained the service of a qualified educational consultant who carried out an extensive investigation and concluded that Steven "was being poorly served at the Norton school system and that he needed totally different services." When the Norton school system refused to modify its plan for Steven, the plaintiff placed him in the Landmark School in accordance with the recommendation of the consultant. The consultant's advice later was confirmed by a hearing officer of the Bureau of Special Education Appeals. The judge made the following findings as to the defendant's involvement in these events:

"However, at no time prior to August 1988, did the plaintiff ever inform the defendant of the IEP proposed for Steven's 1988-89 school year by the Town of Norton; that she had hired an educational consultant; that she had inquired as to availability of private special needs schools for Steven; that she had applied to Landmark School for Steven; the cost of same; or that she had rejected Norton's proposed IEPs.

"At that time, she handed to the defendant a copy of the acceptance letter (which plaintiff had signed July 25, 1988) and a copy of a monthly budget plan document from Manufacturers Hanover Educational Services Corporation, The Tuition Plan of New England, Inc. showing budget payments of $2,400 per month due from June 1, 1988 through March 1, 1989 (totalling $24,000.00). At that time, the plaintiff stated to the defendant 'Steven is going to Landmark School. Your share of the cost is $1,500 per month'.

"At that time, the defendant stated that he knew nothing about this, and would not make any such payments, and Steven would stay in the Norton Schools."

The parties did not thereafter discuss the fact or cost of Steven's education at the Landmark School until the plaintiff filed her complaint for modification.

Steven attended the Landmark School during the school years of 1988-1989, 1989-1990, and 1990-1991. The total expenses related to that attendance during those years was $83,651.72, $60,582.64 having been expended during the first two years and $23,069.08 during the third year. When the town of Norton refused to reimburse the plaintiff for the expenses incurred by her in behalf of Steven at the Landmark School, she brought a law suit against the town which she settled in 1993 for $80,000. She used $63,845.26 of the proceeds to pay legal and consulting fees. ² At the time of the judge's decision, the plaintiff was earning $37,000 a year from her occupation as a school librarian, and the defendant $47,450 per year from his occupations as a teacher and as an officer in the United States Army Reserve. The judge determined that Steven was not emancipated and principally dependent upon the plaintiff, entitling her to child support from the defendant.

The judge further found that a material change of circumstances had occurred since the time of the divorce as a result of the plaintiff's increased needs for child support and Steven's having been diagnosed with a "severe learning disability" which "created the need for private schooling for him." He ordered that a judgment enter on the complaint for modification containing, among other provisions, ³ an order that the defendant pay to the plaintiff, $10,425 "representing his share of the education expense, legal fees and consulting fees incurred by the plaintiff for Steven ... for the 1990-1991 school year."

The judge concluded as follows:

"The defendant owes the plaintiff nothing with respect to the expenses for attendance of Steven ... at the Landmark School prior to the 1990-1991 school year on grounds as follows:

(a) Modification actions may only work prospectively from filing of the Modification, and two of the three school years had already passed and been paid for by the plaintiff prior to the filing of the Complaint for Modification in June, 1990 ...

(b) The plaintiff never made demand upon or requested that the defendant pay any portion of the costs of Landmark School until the filing of the Complaint in June, 1990 ⁴;

(c) The plaintiff never consulted with the defendant nor obtained his assent to the choice of schooling for Steven ..., or the medical evaluations;

"The defendant does owe the plaintiff for a pro-rata portion of legal and consulting fees incurred by the plaintiff, even though much of these fees were incurred prior to the 1990-1991 school year. The incurring of these fees was necessary for the prosecution and settlement of the lawsuit, which yielded monies toward reimbursement for the '90-'91 school year. The amount of the defendant's contribution toward these fees is included in the $10,425 owed.

"While the legalities of this situation preclude this Court from ordering reimbursement to the plaintiff for monies expended for Steven's benefit prior to the '90-'91 school year, the court recognizes the sacrifice and devotion that the plaintiff showed...