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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
                                                                   4


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
                                                                  13


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.
