Vaida v. Vaida , 86 Mass. App. Ct. 601 ( 2014 )

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13-P-1827 Appeals Court
NANCY C. VAIDA vs. GEORGE A. VAIDA.
No. 13-P-1827.
Norfolk. May 7, 2014. - November 6, 2014.
Present: Cypher, Kafker, & Hanlon, JJ.
Divorce and Separation, Child support, Attorney's fees. Parent
and Child, Child support. Jurisdiction, Equitable.
Probate Court, General equity power.
Complaint in equity filed in the Norfolk Division of the
Probate and Family Court Department on February 16, 2011.
The case was heard by Jennifer M.R. Ulwick, J., on a motion
for summary judgment.
David E. Cherny (Laura E. Ruzzo with him) for the
plaintiff.
Steven J. Ryan for the defendant.
CYPHER, J. The plaintiff, Nancy C. Vaida (mother), appeals
from an order for summary judgment on her complaint seeking that
the defendant, George A. Vaida (father), pay postminority
support for his physically disabled son. We affirm.
2
1. Factual and procedural background. The parties were
married in 1977, filed for divorce in 1993, and were divorced by
a judgment of divorce nisi dated August 22, 1996, as amended
September 24, 1996, and further amended December 2, 1996
(judgment of divorce). There are three children born of the
marriage: Allison, Justin, and Evan. At the time of the
divorce, the children were sixteen, fourteen, and eight years
old, respectively.
On April 22, 1995, while the parties were separated and
divorce proceedings were pending, the father took Evan and
Justin on vacation in Truro. While they were on vacation, the
father took Evan and Justin for a ride on the front bumper of
his vehicle. Evan and Justin fell off the bumper and were
accidentally run over by the vehicle driven by the father. As a
result of the accident, Evan became a partial quadriplegic. He
is confined to a wheelchair and paralyzed from the chest down.
Justin was also injured in the accident, but not as severely as
Evan. The father was wholly responsible for the injuries Evan
and Justin sustained.
On November 7, 1995, the mother, individually and as a
parent and next friend of Evan and Justin, filed a civil lawsuit
(civil suit) against the father seeking monetary damages from
him for herself, Justin, and Evan.
3
While the civil suit was pending, the divorce trial took
place, and on August 22, 1998, the court entered a judgment of
divorce. Pursuant to that judgment, the father and the mother
were granted joint legal custody of Allison, who resided
primarily with the father. The mother was granted sole legal
and physical custody of both Evan and Justin. The divorce
judgment also required the father to pay the mother alimony of
$5,500 per month until either the father or the mother died or
the mother remarried, as well as $5,500 per month in child
support for Evan and Justin. The father's child support
payments would be reduced by fifty percent after Justin's
emancipation, and child support would be terminated after both
sons were emancipated. The divorce judgment defined
"emancipated" as the earliest of the following:
"a child's attaining age 18 or his graduation from high
school, whichever is first except that if a child is
enrolled in college as a full-time student, emancipation
shall not be deemed to have occurred until the age of 23 so
long as the child so remains, so enrolled;
"a child's ceasing to reside primarily with the mother;
"marriage of a child;
"entry by a child into military service of the United
States;
"death of a child."
The father was also ordered to maintain and pay for health
insurance for the mother and each of the children as well as to
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pay for all of the children's reasonable and necessary uninsured
expenses.
On February 28, 1997, the mother, individually and as
parent and next friend of Justin and Evan, settled the claims
against the father for a total sum of $3.5 million, and also
entered into a "Settlement Agreement and Release" with the
father and his insurers. The settlement agreement and release
contained a "Release and Discharge" provision and a "General
Release" provision whereby the mother, on behalf of herself and
as parent and next friend of Justin and Evan, released the
father from any and all future claims of any kind on account of
or growing out of the April 22, 1995, accident.1 The release and
1
The release and discharge provision of the settlement
agreement and release stated as follows:
"1. Release and Discharge. In consideration of the
payments called for herein, the Plaintiffs completely
release and forever discharge the Defendant . . . of and
from any and all past, present or future claims, demands,
obligations, actions, causes of action, wrongful death
claims, rights damages, costs, losses of services, expenses
and compensation of any nature whatsoever, whether based on
a tort, contract, or other theory of recovery, and whether
for compensation or punitive damages, which the Plaintiffs
now have, or which may hereafter accrue or otherwise be
acquired, on account of, or in any way growing out of, an
accident alleged to have occurred on or about April 22,
1995 at or near Truro, Massachusetts, which are the subject
of the Complaint (and all related pleadings), including,
without limitation, any and all known or unknown claims for
bodily and personal injuries (including claims for loss of
consortium and claims for negligent and/or intentional
infliction of emotional distress) to the Plaintiffs, or any
future wrongful death claim of Plaintiff's representative,
5
discharge also explicitly stated that it would not operate as a
release on any rights that the mother may have against the
father from the divorce judgment. The mother received a lump
sum of $225,000 from the settlement. She also received
$64,666.84 for the benefit of Justin. For the benefit of Evan,
$600,000 was paid into the Evan A. Vaida Irrevocable Trust
which have resulted or may result from the alleged acts or
omissions of the Defendant. This release, on the part of
the Plaintiffs, shall be a fully binding and complete
settlement between the Plaintiffs, the Defendant, and the
Insurers . . . . Nothing contained in this Agreement,
however, shall constitute or be construed in any way to
operate as a release of any and all rights Plaintiffs may
have against the Defendant arising out of a Judgment of
Divorce entered by the Norfolk Probate and Family Court in
the case of Nancy C. Vaida v. George A. Vaida, Docket No.
93D-1621-01, as same exists or as may be amended."
The general release provision of the settlement agreement
and release stated as follows:
"7. General Release. The Plaintiffs hereby acknowledge
and agree that the Release set forth in paragraph 1 hereof
is a general release relating to the alleged negligent acts
and omissions of the Defendant as contained in Norfolk
Superior Court Civil Action No. 95-02417, and they further
expressly waive and assume the risk of any and all claims
for damages which exist as of this date but of which the
Plaintiffs do not know or suspect to exist, whether through
ignorance, oversight, error, negligence, or otherwise, and
which, if known, would materially affect Plaintiffs'
decision to enter into, this Settlement Agreement. The
Plaintiffs further agree that they have accepted payment of
the sums specified herein as a complete compromise of
matters involving disputed issues of law and fact and they
assume the risk that the facts or laws may be otherwise
than they believe. It is understood and agreed by the
Parties that this settlement is a compromise of a doubtful
and disputed claim, and the payments are not to be
construed as an admission of liability on the part of the
Defendant, by whom liability is expressly denied. . . ."
6
(trust). An annuity was also purchased for Evan's benefit,
which made periodic payments into the trust:
"$7,500 payable quarterly for a period of 5 years until
January 1, 2002;
"$12,000 payable quarterly for a period of 5 years until
January 7, 2007; and
"$7,9[8]0.13 payable monthly for the life of Evan,
guaranteed for 30 years, beginning on April 1, 2007, and
increasing at a rate of 2% per year."
The remaining funds from the settlement were for the mother's
legal fees.
The father and his insurers have made all of the lump sum
payments due under the settlement agreement and release, and
have purchased an annuity that fulfils their obligation to make
periodic payments. Currently, with the annual two percent
increase, the annuity makes monthly payments to the trust of
approximately $8,810 per month. The annuity paid the trust
approximately $105,383 in calendar year 2012, and $94,678.11 in
2011. In 2011, the trust received $143,580.84 from the annuity
payments combined with medical reimbursements, insurance
refunds, and automobile insurance settlements. Evan also
receives Supplemental Security Income of $552.92 per month, and
has been approved for benefits under MassHealth. As stipulated
by the court order, the father maintains medical insurance for
Evan to cover medical expenses not paid for by MassHealth.
7
On February 6, 2011, Evan turned twenty-three years old, at
which time he became "emancipated" as per the divorce judgment
and G. L. c. 208, § 28. Evan has significant physical and
medical needs as a partial quadriplegic confined to a
wheelchair. However, Evan is not an "incapacitated person" as
defined by G. L. c. 190B, § 5-101(9), inserted by St. 2008,
c. 521, § 9, and has not been appointed a guardian or
conservator. No other protective order was entered on Evan's
behalf pursuant to Article V of the Massachusetts Uniform
Probate Code (MUPC), G. L. c. 190B, §§ 1-101 et seq. Evan
recently attended and graduated from Boston College.
On or about February 16, 2011, the mother filed a complaint
for modification of the divorce judgment, seeking an increase in
the father's alimony obligation. She also filed a complaint in
equity seeking an order requiring the father to pay postminority
child support for Evan, maintain Evan's health insurance, and
pay all of Evan's uninsured medical expenses.
After the complaint in equity survived a motion to dismiss
pursuant to Mass.R.Dom.Rel.P. 12(b)(6) (1975), for failure to
state a claim upon which relief can be granted, the judge
ordered that Evan be appointed an attorney as independent
counsel. Evan's attorney was instructed to file a motion to
have Evan added as a coplaintiff in the complaint in equity if
the attorney deemed it appropriate. No motion was filed to add
8
Evan as a coplaintiff. The attorney appeared before the court
seeking to withdraw because Evan did not lack the capacity to
retain counsel of his own choosing. With approval of the court,
the attorney withdrew his appearance in this matter.
On or about November 9, 2012, the father filed a motion for
summary judgment on the complaint in equity on two grounds:
"(1) No action based in equity for post-minority support for
Evan pursuant to [G. L.] c. 215, § 6, is recognizable
under Massachusetts law, absent a finding of incapacity
by the court pursuant to [G. L.] c. 190B, § 5-101; and
"(2) The Settlement Agreement and Release . . . entered into
by [the mother] on behalf of herself and as parent and
next friend of Evan . . . specifically bars the relief
requested by [the mother] in her equity complaint."
The judge allowed the father's motion for summary judgment.
From this judgment, the mother appeals, and the father requests
an award of attorney's fees and costs in accordance with G. L.
c. 208, § 38.
2. Discussion. a. The mother's complaint for
postminority support. The mother argues that G. L. c. 208,
§ 28, does not expressly prohibit an order allowing postminority
child support for an emancipated child, and that the court can
use its equity jurisdiction under G. L. c. 215, § 6, to allow
such an order.
The statutory system governing child support in
Massachusetts is a complete system, and there is no nonstatutory
right to relief under the common law. Orlandella v. Orlandella,
9
370 Mass. 225, 227 (1976). Therefore, we must look to G. L.
c. 208, § 28, which addresses circumstances under which
postminority child support is allowed.2 In essence, the statute
allows for postminority child support up to the age of twenty-
three, provided that the conditions outlined in the statute are
met. Evan's circumstances met the requirements of the statute
and postminority child support was provided for Evan until he
reached the age of twenty-three. Since Evan has reached the age
of twenty-three, he no longer meets the requirements of the
statute to allow for postminority child support, and is,
therefore, categorically ineligible for support under G. L.
c. 208, § 28.
The mother looks to the equity jurisdiction conferred upon
the court under G. L. c. 215, § 6, as the basis for her argument
that the court can order postminority support for Evan. Section
6 does allow the court powers of equity jurisdiction in certain
circumstances, which are outlined in that statute. There are at
2
"The court may make appropriate orders of maintenance,
support and education of any child who has attained age eighteen
but who has not attained age twenty-one and who is domiciled in
the home of a parent, and is principally dependent upon said
parent for maintenance. The court may make appropriate orders
of maintenance, support and education for any child who has
attained age twenty-one but who has not attained age twenty-
three, if such child is domiciled in the home of a parent, and
is principally dependent upon said parent for maintenance due to
the enrollment of such child in an educational program,
excluding educational costs beyond an undergraduate degree."
G. L. c. 208, § 28, inserted by St. 1991, c. 173, § 1.
10
least two cases where the court used this authority to order
postminority support. See Feinberg v. Diamant, 378 Mass. 131
(1979); Eccleston v. Bankosky, 438 Mass. 428 (2003). In each of
these cases the adult child had been placed under a guardianship
as defined by the statute in effect at that time. The statutory
scheme prior to 2009, under G. L. c. 201, §§ 6, 6A, and 6B,
allowed for the appointment of a guardian for persons who were
"mentally ill," "mentally retarded," or "persons unable to make
or communicate informed decisions due to physical incapacity or
illness" (emphasis supplied). The 2009 adoption of the MUPC
replaced the terms "mentally ill," "mentally retarded," and
"physical incapacity" with the term "incapacitated person" and
provided for a limited guardianship in addition to what has
traditionally been a plenary guardianship. The MUPC defines
"incapacitated person" as:
"an individual who for reasons other than advanced age or
minority, has a clinically diagnosed condition that results
in an inability to receive and evaluate information or make
or communicate decisions to such an extent that the
individual lacks the ability to meet essential requirements
for physical health, safety, or self-care, even with
appropriate technological assistance."
G. L. c. 190B, § 5-101(9), inserted by St. 2008, c. 521, § 9.
In Eccleston, the court allowed postminority support for a
child who was under a guardianship because the child was under
the age of twenty-three, could not domicile with either of her
parents, was not financially independent from her guardian, and
11
otherwise would have met the requirements for postminority
support under G. L. c. 208, § 28, up to age twenty-three. 438
Mass. at 438. In Eccleston, the court used its equity powers to
"close an unintended gap in the comprehensive legislative scheme
providing postminority support to children of disrupted families
that is consistent with the Legislature's directive to construe
child support statutes 'liberally' to secure the welfare of
children." Id. at 437.
In Feinberg, the court allowed postminority child support
for an adult child who had a "mental or physical infirmity,"
which was at that time in line with the statutory scheme for a
guardianship. 378 Mass. at 134. Since this case, the statutory
scheme for a guardianship, G. L. c. 190B, § 5-306(b)(6), only
allows an appointment of a guardian for those who are
"incapacitated persons" as defined by G. L. c. 190B, § 5-101(9),
and thus only for people who are unable to "receive and evaluate
information or make or communicate decisions."
A third case addresses the necessity for a guardianship
before a court could use its equity jurisdiction to order
postminority support for an adult child. Saia v. Saia, 58 Mass.
App. Ct. 135 (2003). In Saia, the adult child was suffering
from "depression and bulimia," but did not meet any of the
requirements for postminority support under G. L. c. 208, § 28.
Saia v. Saia, supra at 136. The court affirmed the rationale
12
that postminority support could not be ordered because the adult
child did not meet the requirements of G. L. c. 208, § 28, and
had not been placed under a guardianship. Saia v. Saia, supra
at 138.
The statute conferring equity jurisdiction provides for the
court to use its authority in situations like those in Eccleston
and Feinberg, where the adult child has been placed under a
guardianship. The facts in this case are distinguishable from
Eccleston because Evan is not and has not ever been subject to a
guardianship and is disqualified from receiving postminority
support under G. L. c. 208, § 28, because he is past the age of
twenty-three. The facts of this case do not meet the
requirements of Feinberg because the current statutory language
only allows a guardianship for "incapacitated persons" and Evan
does not meet the definition of an incapacitated person. The
facts show that Evan is not able to provide for his own physical
needs and is physically disabled; however, there are no facts
demonstrating that Evan is in any way unable to communicate, or
receive and evaluate information to such an extent that he
cannot meet essential requirements for physical health, safety,
or self-care with appropriate technological assistance. No
evidence has been presented that even raises the inference that
Evan is unable to receive and evaluate information, or make or
communicate decisions for himself, or that he is unable to
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support himself financially through his educational
accomplishments, the receipt of funds from the trust, and Social
Security.
While the court does have equity jurisdiction, it is
limited to the provisions outlined in the statute, which do not
address situations where the adult child is not an incapacitated
person and has not been placed under a guardianship. "The
equity powers conferred by the Legislature on the Probate and
Family Court are intended to enable that court to provide
remedies to enforce existing obligations; they are not intended
to empower the court to create new obligations." T.F. v. B.L.,
442 Mass. 522, 532 (2004). Evan does not meet the definition of
an incapacitated person and cannot be placed under a
guardianship for those reasons, and as such does not meet any of
the criteria to open the door to the court's use of equity
jurisdiction to provide for postminority child support.
The mother also claims that, assuming Evan did need to be
placed under a guardianship to be eligible for postminority
support, the adoption of the MUPC in 2009 left an unintended gap
in the legislative scheme for physically incapacitated persons
to be appointed a guardian. However, review of the pre-2009
statute indicates that the statute allows for the appointment of
a guardian in situations where a person, due to physical
incapacity, is either unable to make or communicate informed
14
decisions or properly care for his or her property.3 As already
discussed, there are no facts to support the idea that Evan is
not unable to make or communicate informed decisions or properly
care for his own property, given that he is able to financially
support himself through the trust funds and Social Security.
Under either regulatory scheme, Evan does not meet the
requirements for a guardianship.
Plaintiff's last claim is that this action is not barred by
the release provision of the settlement agreement and release
because it arises out of the divorce judgment. However, for the
reasons described above, there are no remedies available under
current law to permit an amendment to the divorce judgment. The
only other avenue under which to pursue relief would be a tort
action, which is expressly barred by the release provisions of
the settlement agreement and release. There is no factual
dispute to as to the terms of the settlement agreement and
release, which is exhaustive and complete. The mother executed
3
"The probate court may, if it appears necessary or
convenient, appoint guardians of minors, mentally ill persons,
mentally retarded persons, persons unable to make or communicate
informed decisions due to physical incapacity or illness, and
spendthrifts and conservators of the property of persons by
reason of mental weakness, mental retardation or, physical
incapacity unable to properly care for their property, who are
inhabitants of or residents in the county or who reside out of
the commonwealth and have estate within the county." G. L.
c. 201, § 1 (repealed effective July 1, 2009, by St. 2008,
c. 521, § 21).
15
the settlement agreement and release as parent and next friend
of Evan knowingly, voluntarily, and with the advice of counsel.
Since there is no cause of action arising out of the divorce
judgment and the claim thereby falls outside of the sole
exception to the settlement agreement and release, the mother's
claim is barred by the settlement agreement and release, and she
is precluded from pursuing the requested relief.
b. The father's request for fees. The father requests
attorney's fees and costs in accordance with G. L. c. 208, § 38.
The matter appears to have been pursued in good faith. The
unique facts of this case and the complexity of the issues
underlying this matter amply substantiate that this complaint
was not a frivolous claim, or a claim brought for the sake of
being litigious and dragging a defendant into court. The
father's request for fees is denied.
3. Conclusion. Postminority support is not available to
adult children who are not incapacitated persons placed under
guardianship. The settlement agreement and release bars any
other avenues through which the mother may pursue recovery. The
father's request for attorney's fees is denied.
Judgment affirmed.