MARY E. MACDONALD vs. RICHARD G. MACDONALD.

LYNCH, J. The plaintiff filed a complaint for contempt in the Probate Court alleging the defendant's arrearages in alimony and support payments under an order of September 13, 1982, totalling $5,908.31. On September 26, 1983, a probate judge authorized an attachment of certain of the defendant's

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real estate, which was recorded that day. The following day, September 27, 1983, the defendant sold the real estate. [Note 1] The purchasers gave a mortgage on the property to the Crescent Credit Union (credit union). The credit union's attorney failed to discover the plaintiff's attachment. Upon learning of his error, the attorney filed a motion in the contempt case to dissolve the attachment. No motion to intervene was made, and no separate petition to dissolve the attachment was filed. The judge allowed the motion on the day it was filed without prior notice, although the plaintiff apparently was present and given an opportunity to be heard. The plaintiff then moved for reconsideration and stay pending appeal, but these motions were denied. The plaintiff thereupon appealed. A single justice of the Appeals Court allowed the credit union's motion to file an amicus brief, but did not allow the credit union to argue. Mass. R. A. P. 17, 365 Mass. 864 (1974). We took the case on our own motion.

We assume, without deciding, that the Massachusetts Rules of Domestic Relations Procedure govern the credit union's motion. [Note 2] Under those rules, "A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than 3 days before the time specified for the hearing. . . ." Mass. R. Dom. Rel. P. 6 (c). No such prior notice was given; indeed, the plaintiff's only notice came on the day of the hearing itself.

Even if there had been adequate notice, we doubt whether the probate judge could properly dissolve the attachment under G. L. c. 223, Sections 106 and 108 (1986 ed.), on the grounds urged by the credit union. Those provisions permit dissolution of an attachment upon a finding that all or part of the amount demanded in the original action was "not justly due." The probate

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judge made no such finding nor does the record disclose that evidence was introduced to support such a finding.

Furthermore, decisions interpreting earlier statutes containing analogous provisions make clear that Sections 106 and 108 provide a remedy against attachments which are invalid or fraudulent. [Note 3] Williams v. East Wareham, Onset Bay, and Point Independence St. Ry., 171 Mass. 61 (1898) (execution creditor could proceed at law to try validity of attachment); Deyo v. Jennison, 10 Allen 410 (1865) (attachment procured by fraud); Felton v. Wadsworth, 7 Cush. 587 (1851) (fraudulent attachment); Baird v. Williams, 19 Pick. 381, 385-386 (1837) (invalid attachment due to invalidity of underlying obligation; petitioner must show that "debt was not justly due and owing"); Adams v. Paige, 7 Pick. 542 (1829) (collusion of attaching creditors); Spear v. Hubbard, 4 Pick. 143 (1826) (fraudulent attachment); Hammatt v. Bassett, 2 Pick. 564 (1824) (same). In the instant case, there was no allegation that the plaintiff's attachment was fraudulent or invalid within the meaning of the statute and in fact the judge made no finding to that effect.

We can understand the judge's concern that the defendant not be unjustly enriched by the unfortunate error of the credit union's attorney. However, the question of the attorney's error was one which the credit union had "no right to [raise] in this form of proceeding. It does not show that the debt was not justly due and owing, or that it was not then payable; and, therefore, they show no sufficient ground for vacating the attachment, on petition, by force of this statute." Baird v. Williams, supra at 385-386 (construing predecessor statute). Therefore, the order dissolving the attachment is vacated, and the attachment is to be effective on the date it was originally recorded.

So ordered.