Santagate v. Tower

• Citation: 833 N.E.2d 171,64 Mass. App. Ct. 324
• Decision Date: 25 August 2005
• Docket Number: No. 03-P-1593.,03-P-1593.
• Parties: Mary Jayne SANTAGATE v. Leo David TOWER.
• Court: United States State Supreme Judicial Court of Massachusetts

Page 171

833 N.E.2d 171

64 Mass. App. Ct. 324

Mary Jayne SANTAGATE v. Leo David TOWER.

No. 03-P-1593.

Appeals Court of Massachusetts, Essex.

Argued September 20, 2004.

Decided August 25, 2005.

COPYRIGHT MATERIAL OMITTED

John S. Legasey, Salem, for the plaintiff.

James D. Takacs, Boston, for the defendant.

Present: GELINAS, SMITH, & COWIN, JJ.

GELINAS, J.

We consider in this appeal whether a judge in the Probate and Family Court abused her discretion in denying the mother's two claims: (1) a claim under Mass.R.Dom.Rel.P. 60(b)(6) (1975), to modify a divorce decree, and (2) a claim for equitable restitution from the father for amounts she paid in support of their children during their minority. We affirm in part and reverse in part.

The uncontested facts presented at trial are these: Mary Jayne Santagate (mother), and Leo David Tower (father), were married on June 13, 1964. Between 1965 and 1968, the couple had three children. In May, 1972, the father deserted the mother and the three children, ages six, five, and four.

The father returned only once, several days after his departure, to take the children to the beach and to give a small amount of money to the mother. Following this visit, the father had no further contact with the mother or the children, until he was located some twenty-seven years later by a private investigator hired by his then adult children.

On June 8, 1972, within a few weeks of the abandonment, the mother filed a petition for separate support, together with a motion for temporary orders. The petition and motion were served upon the father by mail, at Gregory Island Road in Essex, Massachusetts. The father did not attend the hearing, held on June 12, 1972, and the court ordered him to pay $175 per week in child support.

The mother filed a libel for divorce in August, 1972. The libel was amended in October, 1972, to substitute for the father's street address the words "now of parts unknown." Notice of the libel, as amended, was made by publication. On April 3, 1973, the court entered a decree of divorce nisi. The decree contained no order of support, as the court did not have personal service upon the father. At or around the time the mother filed her libel for divorce, she also filed a complaint for contempt, citing the father's failure to pay temporary support. Due to her inability to locate the father, this action terminated.

In late 1973, the mother married the attorney who represented her in her divorce. He died in 1977. She was briefly married again, for less than a year, in 1978, and married her current husband in 1983. The mother began working as a licensed nurse practitioner after the father left in 1972. She stopped working after her 1973 marriage, but returned to nursing after the death of her second husband in 1977. She continued to work full time to support her children throughout her third and fourth marriages, providing housing, food, health insurance and education for them.

The mother initially attempted to locate the father through friends, neighbors, his past employers, and his colleagues. These attempts were unsuccessful. Although she initially had intermittent contact with the father's parents, that contact ended within a year of the couple's separation, and the mother was informed by her in-laws that the father was dead. At no point did the mother seek death benefits through the Social Security Administration on behalf of herself or the children.

After leaving his family, the father met Maureen Cusack in the summer of 1972. They were married in October, 1973. The father obtained a copy of the judgment of divorce absolute from the Probate Court prior to his marriage to Cusack. At that time, he informed her that he had three children from a previous marriage.

As noted, in 1999, the children, now well into majority, sought assistance from a private detective in locating the father. Within a short time, the detective located the father living in Dedham.

In April, 2001, the mother filed a complaint seeking relief on four separate counts: (1) equitable relief for the enforcement of a separate support order; (2) nunc pro tunc establishment of a support order pursuant Mass.R.Dom.Rel.P. 60(b)(6); (3) alimony and property assignment pursuant to G.L. c. 208, § 34; and (4) equitable relief in the form of restitution for her support of the children. Counts one and three were dismissed on the father's motion for summary judgment. Counts two and four proceeded to trial, subsequent to which the judge entered a judgment of dismissal on both counts, from which the mother now appeals. The mother claims that the trial judge erred in refusing to modify the thirty year old judgment of divorce on her Mass.R.Dom.Rel.P. 60(b)(6) claim, and in failing to enter an order for restitution.

Denial of claim under rule 60(b)(6). We will not reverse a judge's denial of a rule 60(b)(6) motion unless we find a clear abuse of discretion. See Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565, 341 N.E.2d 662 (1976). See also Care & Protection of Georgette, 439 Mass. 28, 33 n. 6, 785 N.E.2d 356 (2003).

The weight of the evidence supports the judge's decision to deny the mother's claim under rule 60(b); the decision falls well within her discretion. The mother's case centers on her contention that the father actively hid from her and changed his identity, and that she believed he was dead. The judge did not credit the mother's testimony on these points, finding that the mother cut short her efforts to locate the father following her remarriage to her divorce attorney less than one year after the father's departure. The judge additionally found that the mother's actions did not support her claim that she believed the father was dead. Moreover, the twenty-nine-year delay in bringing the action, and the fact that the youngest child was emancipated approximately fifteen years before the action was initiated, further support the judge's determination that the delay in bringing the motion exceeds the "reasonable time" requirement outlined by the rule. See Rezendes v. Rezendes, 46 Mass.App.Ct. 438, 440, 707 N.E.2d 368 (1999) (the determination of what constitutes a reasonable time to bring a rule 60[b] motion falls solely to the discretion of the trial judge). There was no error.

Restitution. The mother also claimed equitable relief, asking that father be ordered "to pay a fair share of the cost of caring [for] and maintaining the minor children during their minority." We read this as a claim for restitution, invoking the Probate Court's general equity jurisdiction pursuant to G.L. c. 215, § 6.¹ The mother argues in effect that the father has been unjustly enriched at her expense by his failure to pay support for the children during the period prior to their emancipation. While we conclude that her claims for amounts to which she would have been entitled under the terminated support order, or under other possible orders of support in the divorce proceeding, must fail, we also hold that, insofar as her claim relates to reimbursement for amounts she expended, or at least some portion thereof, it has validity under general theories of restitution.

Under G.L. c. 215, § 6, as amended by St.1981, c. 616, the Probate and Family Court is granted "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."² 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." Matter of Moe, 385 Mass. 555, 561, 432 N.E.2d 712 (1982).

In her memorandum of decision, the judge recognized the ability of the Probate Court, in certain circumstances, to award child support under these broad equity powers. See Feinberg v. Diamant, 378 Mass. 131, 136-137, 389 N.E.2d 998 (1979) (Probate Court may order support for incompetent adult child through equity powers); Taverna v. Pizzi, 430 Mass. 882, 885, 724 N.E.2d 704 (2000) (court may use equity power to provide for retroactive child support); Doe v. Roe, 23 Mass.App.Ct. 590, 595, 504 N.E.2d 659 (1987) (through its equity power court may order support for nonmarital child over age eighteen entitled to support); Pearson v. Pearson, 52 Mass.App.Ct. 156, 162 n. 8, 751 N.E.2d 921 (2001) (noting the use of equity power in Feinberg). The judge, however, expressed reservations about ordering support in this case. First, she noted that the children had reached majority and would not benefit from the order. She also concluded that restitution could not be based on the support order, as the request seemed predicated on the original order of temporary support that was terminated, and that the father, in any event, would not have had to pay while the order was in force because of his financial circumstances. Finally, she concluded that, as the current child support guidelines were not in effect during the period when the father had a duty to support the children, the guidelines could not provide a basis for equitable relief. The trial judge also suggested that laches would apply, given the mother's lack of pursuit of the father, and the time that had elapsed prior to her bringing the suit.

We think the judge's ruling places too severe a limitation on the general equity powers of the Probate Court, and that, while she was correct in her denial of retroactive child support in this case, and in rejecting the suggested measures of what that support might be, 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. Prescinding from the question whether the broad language of G.L. c. 215, § 6, establishing equity power in the probate court, except in matters of injunctive relief stemming from a labor...