We consider in this appeal whether a judge in the Probate and Family Court abused her discretion in denying the
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 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. 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
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 tune 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 rule 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 the Stigmatine Fathers, Inc.
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,
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 and Family Court’s general equity jurisdiction pursuant to G. L. c. 215, § 6.
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.”
In her memorandum of decision, the judge recognized the ability of a probate judge, in certain circumstances, to award child support under these broad equity powers. See Feinberg v. Diamant,
We think the judge’s ruling places too severe a limitation on the general equity powers of a probate judge, 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 a probate judge, except in matters of injunctive relief stemming from a labor dispute as defined by G. L. c. 149, § 20(c), was meant to confer additional jurisdiction to hear equity matters not related to the Probate and Family Court’s traditional jurisdiction, we conclude that here, as the question arises out of the father and mother’s relative obligations to support their children, the matter is well within the purview of the probate judge. Amounts retained by the father, to the extent that the mother provided his share of support, constituted unjust enrichment.
Unjust enrichment is defined as “retention of money or property of another against the fundamental principles of justice or equity and good conscience.” Taylor Woodrow Blitman Constr. Corp. v. Southfield Gardens Co.,
“Restitution is an equitable remedy by which a person who
The Restatement of Restitution § 76 (1937) provides: “A person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.” Section 76, comment b, specifically recognizes a wife’s right to restitution for payments of child support which a husband has the statutory duty to make. It states: “In State X a husband is under a duty to supply necessaries to his wife and minor children and a wife is entitled to maintain an action against her husband. A wrongfully refuses to supply necessaries for his wife and minor child. The wife secures a position and provides herself and the child with necessaries. She is entitled to reimbursement from her husband for the value of the necessaries.” Id,, at § 76 comment b, illus. 5. See Restatement of Restitution § 113 comment i (1937) (“Where the person who performs the duty is also under a duty to perform it, the rules stated in §§ 76-85 are applicable. Thus the mother of a child who has supported it in accordance with a statutory duty of support would be entitled to restitution from the father who was under the primary duty to support it”).
Other jurisdictions have allowed an independent action by the wife, or others, to recover monies advanced to fulfil a husband’s obligation of child support. See Barrett v. Barrett,
A parent has a duty to support his or her minor children, a duty that in recent years has been enhanced. See L.W.K. v. E.R.C.,
In Taverna v. Pizzi,
Here, the father unquestionably had a duty to support his minor children after the separation and divorce. It is not sufficient for him to argue that the mother was not assiduous in seeking him out to try to make him provide that support. He
Laches. Citing to G.E.B. v. S.R.W.,
A defense of loches exists upon a factual finding that there has been unjustified, unreasonable, and prejudicial delay in raising a claim. Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass. App. Ct. 45, 49 (1990). Here, the burden of proof with respect to loches rests with the father. G.E.B. v. S.R.W., supra at 166. The father argues that the mother’s delay in bringing the proceedings might well be characterized as unjustified and unreasonable, where she was less than assiduous in seeking to learn his whereabouts, especially given that he continued to reside in her area for a period of time, he never left the Commonwealth, he never attempted to conceal his name or address, he remarried, and he had children and purchased real estate.
The father, however, presented no evidence of prejudice, and the judge made no finding that the mother’s delay operated to
Moreover, the father does not approach the argument devoid of blame. He abandoned his wife and three children, remarried, established a new life and purchased real estate, making no attempt ever to see the children of his first marriage or to provide for their welfare. Having obtained a copy of his divorce decree prior to his second marriage, he had actual knowledge of the divorce. The father’s abandonment was complete; he never attempted to contact the family or, on this record, to seek information concerning their condition. Here, “the natural father not only enjoyed the full use of his unrestricted personal funds, but also sat idly by and watched someone else fulfill his legal and moral obligations to [children] he knew [were] his own. In such an instance, the scales of equity greatly favor the [claimant] and preclude us from holding that the defense of loches is available to the natural father.” Anonymous Wife v. Anonymous Husband,
In these circumstances we conclude that a claim of loches, an equitable defense, is not available to the father. “[He] who comes into equity must come with clean hands.” Fidelity Mgmt. & Research Co. v. Ostrander,
We are aware of the need to exercise caution in applying the maxim, so that the father is not “deprived of civil justice merely because he has sinned in the past; his wrongdoing must have been related directly to the present situation to justify his being barred.” Scattaretico v. Puglisi,
Determining amount of restitution. In the area of marital support, we have only awarded restitution in conjunction with the interpretation and enforcement of alimony and support orders. See, e.g., Keller v. O'Brien,
Further, the court is not free to employ restitution as a form of damages. Rather, an order of restitution must rectify the father’s unjust enrichment. “[Rjestitution is not damages; restitution is a restoration required to prevent unjust enrichment” (emphasis omitted). 1 Dobbs, Law of Remedies § 4.1(1), at 557 (2d ed. 1993). “The fundamental substantive basis for restitution is that the defendant has been unjustly enriched by receiving something, tangible or intangible, that properly belongs to the plaintiff. Restitution rectifies unjust enrichment by forcing restoration to the plaintiff.” Id. at § 4.1(2), at 557. “Unjust enrichment, as a basis for restitution, requires more than benefit. The benefit must be unjust, a quality that turns on the reasonable expectations of the parties.” (Emphasis in original.) Community Builders, Inc. v. Indian Motocycle Assocs.,
Fundamental to the calculation of restitution here is a determination of the amounts actually expended by the mother for the support of the children. Any calculation must also take into account the relative financial condition of both parties in each year of the children’s minority. The number of minor children entitled to support in each year must be considered as well. We are persuaded that, although difficult, the calculations required to determine the amount by which father was unjustly enriched are not impossible; the parties have already provided much of the financial information necessary to the equation for the periods in question.
The circumstances of this case are such that the remedy of restitution for the mother is appropriate. Any measure of recovery, however, must be based not on amounts that the father should have paid in support of the children, but on amounts the mother expended on his behalf during the period prior to the children’s emancipation.
The case is remanded to the Probate and Family Court for further proceedings consistent with this opinion.
So ordered.
Notes
The first paragraph of G. L. c. 215, § 6, as amended by St. 1981, c. 616, provides in pertinent part: “The probate and family court department shall have 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 and, with reference thereto, shall be courts of general equity jurisdiction.”
The statute excludes from this jurisdiction cases in which injunctive relief is sought in a matter stemming from a labor dispute as defined by G. L. c. 149, § 20(c).