Keller v. O'Brien

Decision Date21 August 1997
Citation683 N.E.2d 1026,425 Mass. 774
PartiesAnthony J. KELLER v. Helen M. O'BRIEN.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Seymour Weinstein, Worcester (Barbara S. Liftman, Foxboro, with him), for plaintiff.

Craig T. Ornell, Worcester, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY, FRIED and MARSHALL, JJ.

MARSHALL, Justice.

Anthony J. Keller appeals from a judgment of the Worcester Probate and Family Court, entered after rescript from this court, Keller v. O'Brien, 420 Mass. 820, 652 N.E.2d 589 (1995) (Keller I ), that terminated Keller's alimony obligation to his former wife, Helen M. O'Brien, but denied Keller's request for restitution of alimony payments made to O'Brien after her remarriage. Keller had sought restitution for all payments made after June, 1992, the date that he first applied to modify his alimony obligation. We transferred the case to this court on our own motion and conclude that, in the circumstances of this case, the judge was correct. We affirm the judgment of the Probate and Family Court.

I

After twenty-six years of marriage, Keller and O'Brien were divorced in November, 1990. The judgment of divorce nisi required Keller to pay O'Brien $800 a week, $500 of which was alimony. 1 The judgment was silent as to whether alimony would terminate in the event of O'Brien's remarriage, and there was no surviving agreement between the parties. 2

O'Brien remarried on May 17, 1992. One month later, on June 17, 1992, Keller filed a complaint for modification pursuant to G.L. c. 208, § 37, seeking to terminate alimony, claiming that O'Brien's remarriage constituted a material change of circumstances. He filed an amended complaint in November, 1992, making the same claim. After an evidentiary hearing in December, 1993, a probate judge concluded that O'Brien's remarriage was a change in circumstances allowing for the introduction of evidence relative to the need for continued support, citing Southworth v. Treadwell, 168 Mass. 511, 47 N.E. 93 (1897). She determined, however, that O'Brien was still in need of support, that Keller was still able to pay support, and that O'Brien's remarriage did not constitute a material change in her economic circumstances sufficient to warrant a modification of the divorce judgment. 3 Accordingly, on February 15, 1994, the judge issued a judgment dismissing Keller's complaint. Keller appealed, and we granted his application for direct appellate review.

On July 24, 1995, we issued our opinion, Keller I, holding that, in the absence of an agreement to the contrary, remarriage is a prima facie change of circumstances, and concluding for the first time that remarriage terminates alimony "absent proof of some extraordinary circumstances, established by the recipient spouse, warranting its continuation." Id. at 827, 652 N.E.2d 589. We declined to establish a rule that remarriage automatically terminates alimony, but described the "general principle that alimony should terminate on the recipient spouse's remarriage," and that "alimony would survive remarriage only in those rare situations which involve an on-going and legitimate need for continuation of alimony payments." Id. Noting that it was not apparent from the record that O'Brien had satisfied her burden of showing the "extraordinary" circumstances that would warrant continuation of the alimony payments, we vacated the Probate Court's dismissal of Keller's complaint for modification and remanded the matter to the Probate Court. 4 Keller then moved for entry of judgment and, for the first time, sought restitution of alimony payments made after the date on which he filed his original complaint for modification, June 9, 1992. 5 On August 29, 1995, after a further hearing, the probate judge terminated Keller's alimony obligation but denied his claim for restitution.

II

Keller I resolved an issue that had been unsettled in Massachusetts for more than a century. Previously we had recognized that remarriage was a change of circumstances allowing one "a right to look for support from the new spouse," O'Brien v. O'Brien, 416 Mass. 477, 481, 623 N.E.2d 485 (1993), and that "either party could offer evidence" as to whether the continuation of alimony to the remarried spouse was warranted. Southworth, supra at 512, 47 N.E. 93.

Our decision in Southworth suggested, but did not state, that the recipient spouse had the burden of proving that continued alimony after remarriage was warranted. Id. at 513, 47 N.E. 93. However, in the one hundred years since Southworth, our courts have required the party seeking modification, the alimony-paying spouse, to meet the burden of proving that upon remarriage a change of financial circumstances has occurred sufficient to justify modification of the alimony obligation. See, e.g., Ziegler v. McKinlay, 318 Mass. 765, 767, 64 N.E.2d 15 (1945) (upholding finding that judge not "satisfied on the evidence that the [support-paying spouse] had sustained the burden of proving that such a change in [his] circumstances had occurred since the entry of the [divorce] decree as would justify the modification") 6; Gallerani v. Gallerani, 24 Mass.App.Ct. 927, 928 n. 5, 508 N.E.2d 111 (1987) (in the absence of an agreement, remarriage does not terminate alimony where the "husband makes no argument that he is unable to pay the alimony called for in the agreement"). See also Gottsegen v. Gottsegen, 397 Mass. 617, 625, 492 N.E.2d 1133 (1986) ("the court may later modify the original judgment if the petitioner demonstrates a material change of circumstances"). 7

Our decision in Keller I changed this standard in two important respects. First, we held that, in the event of remarriage, the burden of proof rests squarely on the recipient spouse to justify the continuation of alimony. Id. at 826-827, 652 N.E.2d 589. In addition, we increased significantly the weight of this burden: the recipient spouse now must prove that "extraordinary" circumstances warrant the continuation of alimony. Id. We said that we would not "speculate" about what circumstances might be sufficiently "extraordinary" to warrant the continuation of alimony after remarriage, but our opinion spoke of these as "rare situations," making clear that the burden is indeed a heavy one. Keller I, supra at 827 & n. 13, 652 N.E.2d 589.

III

Restitution is an equitable remedy by which a person who has been unjustly enriched at the expense of another is required to repay the injured party. Salamon v. Terra, 394 Mass. 857, 859, 477 N.E.2d 1029 (1985), quoting Restatement of Restitution § 1 (1937). Jones v. Swift, 300 Mass. 177, 185, 15 N.E.2d 274 (1938). The fact that a person has benefitted from another "is not of itself sufficient to require the other to make restitution therefor." Restatement of Restitution, supra at § 1 comment c. Restitution is appropriate "only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for [her] to retain it." Id. 8 See National Shawmut Bank v. Fidelity Mut. Life Ins. Co., 318 Mass. 142, 146, 61 N.E.2d 18 (1945). Applying these principles, we must decide whether, as between O'Brien and Keller, it is unjust for O'Brien to retain any of the alimony payments that she received after her remarriage in May, 1992. Because we have never addressed the issue--as far as we can discern the question of restitution of alimony payments made prior to the modification of a divorce decree has not arisen 9--we consider first how the relevant principles of restitution have been applied generally in Massachusetts.

We have awarded restitution on a number of occasions, but in circumstances that we conclude are not applicable to Keller's claim made here. We have, for example, awarded restitution in those cases where a party has been unjustly enriched because of the breach of some duty, a violation of trust, bad faith, or fraud. 10 There is no claim here of any bad faith or fraudulent conduct by O'Brien. We are aware of instances in which restitution has been awarded by courts in other States where such conduct on the part of the alimony-recipient spouse has been proven: in each such case a statute or judicial rule plainly provided that alimony would terminate upon remarriage, and in each case the recipient spouse sought to conceal her marriage from her former husband. 11 No such rule existed in Massachusetts, and O'Brien never sought to conceal her remarriage from Keller. See also Schneider v. Schneider, 204 Misc. 918, 919, 125 N.Y.S.2d 739 (N.Y.Sup.Ct.1953) ("reasons for which restitution is generally directed do not apply either to temporary or permanent alimony"). 12

Keller's most pointed argument for restitution is his claim that the initial judgment of the Probate Court dismissing his complaint to modify the divorce judgment was an error of law, and that after rescript the judge did not decide the issue "with an appropriate view of the law to be applied." He claims that he should be put in the position that we "intended him to be in following his former wife's remarriage." We conclude that the judge below did not misinterpret our decision in Keller I; contrary to Keller's claim, we neither addressed the issue of restitution, nor did we direct the probate judge to do so. On our review of the entire record we determine that the equities do not support his claim for restitution.

First, it was not until after our decision in Keller I that Keller made any claim for restitution. His initial complaint for modification (June, 1992) and his amended complaint for modification (November, 1992) sought only relief from paying alimony (no mention is made of restitution), even though by November he had made at least six months of alimony payments to his former wife since her remarriage. At the evidentiary hearing on his complaint (December, 1993), Keller never raised the issue, although by then he had made...

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