KATHLEEN A. ECCLESTON VS. PAUL E. BANKOSKY

MARSHALL, C.J. We consider in this case the novel question whether G. L. c. 208, s. 28, [Note 1] authorizes a Probate and Family

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Court judge to order a divorced father to pay postminority support (support payable after a child's eighteenth birthday) to a third party appointed as his child's guardian and with whom his child is domiciled. It does not. A Probate and Family Court judge, however, does have authority pursuant to equity powers vested by the Legislature under G. L. c. 215, s. 6, to determine whether the father should be required to support his daughter financially beyond her eighteenth birthday. [Note 2] We vacate the modification judgment and remand this case for entry of a support order under G. L. c. 215, s. 6, consistent with this opinion.

1. Background. We summarize the relevant factual and procedural history from the judge's memoranda and orders and from the undisputed facts. Cailyn Bankosky (Cailyn), born on May 13, 1983, is the only child of the marriage of Paul Bankosky (father) and Kathryn Mulroy (mother). Pursuant to their divorce in 1990, the mother was awarded physical custody of Cailyn and the father was ordered to pay child support in the

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amount of $171.31 each week. When Cailyn was eleven years of age, she was placed in the custody of the Department of Social Services (department) as a result of her parents' unfitness to care for her, specifically, the mother's alcohol abuse and the father's "inappropriate touch[ing]" of her. See G. L. c. 119, s. 23. The department first placed Cailyn in a foster home and then with maternal relatives, but by December, 1995, it had returned Cailyn to her mother's home. On March 13, 1997, the department petitioned to restore custody of Cailyn, then thirteen years old, to the mother, and a Probate and Family Court judge granted the petition.

But Cailyn's situation remained precarious. In December of that year, the plaintiff, Kathleen Eccleston, on behalf of herself and her husband, Joseph Bell, successfully moved for immediate appointment of temporary guardianship of Cailyn on the ground that the mother's behavior put Cailyn at risk for neglect. [Note 3] See G. L. c. 201, s. 14. In March, 1998, over the mother's objection, a judge made the guardianship permanent. [Note 4] See G. L. c. 201, s. 2. The judge transferred the father's child support obligation, which had previously been reduced to $75 each week, from the mother to the guardian and further ordered the mother to pay $50 each month in child support to the guardian. [Note 5] The judge also prohibited the mother and the father from contacting Cailyn. Several months later, Cailyn's guardian filed a pro se complaint against the father for modification, seeking an upward adjustment of child support consistent with the child support guidelines. A modification judgment dated January 8,

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1999, ordered the father to pay $125 each week to the guardian in child support, payable by wage assignment through the department of revenue, pursuant to G. L. c. 208, s. 28, the first reference to that statute. [Note 6] The judgment did not specify a date for termination of support. [Note 7] The father did not appeal.

In April, 2001, approximately one month prior to Cailyn's eighteenth birthday, her guardian filed a second pro se modification complaint requesting continuation of the existing child support order beyond Cailyn's eighteenth birthday. [Note 8] In his answer and his motion to dismiss, the father argued that, once Cailyn reached her eighteenth birthday, the guardianship ended as a matter of law, [Note 9] Eccleston lacked standing to pursue the modification complaint, and the judge lacked jurisdiction under G. L. c. 208, s. 28, to order postminority child support because Cailyn did not "reside with a parent." The father also sought leave to counterclaim for termination of his support obligation as of the date Cailyn graduated from high school (about one month after her eighteenth birthday) and for a "credit" toward arrearages for any child support paid to the guardian after Cailyn's high school graduation.

The case proceeded expeditiously. On July 20, 2001, following a brief trial, the judge issued an order and memorandum

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granting the guardian's modification complaint. He also allowed the father's motion to file a counterclaim, but denied the father's motion to dismiss and his counterclaim. The judge reasoned that the guardian had standing to pursue the modification complaint on Cailyn's behalf because the complaint, filed prior to Cailyn's eighteenth birthday, "tolled" the operation of G. L. c. 201, s. 4. Alternatively, he concluded, the guardian could proceed with the case as Cailyn's "next friend." See note 1, supra. The judge ruled that the guardian had proved a "material and substantial change in circumstances" and that modification would be in Cailyn's best interests, see id., by showing that, without her father's continued financial assistance, Cailyn, an unemancipated child, would experience a "deficit in support" that would have a "negative[] impact[]" on her welfare. [Note 10] Finally, the judge held that the guardian was entitled to child support as Cailyn's "de facto parent," see Youmans v. Ramos, 429 Mass. 774, 776 & n.3 (1999), and ordered the father to continue to pay $125 a week in child support to Cailyn's guardian.

The father filed two posttrial motions, one for reconsideration and the other for a new trial on the ground, inter alia, of allegedly newly discovered evidence that Cailyn was no longer living with the guardian. [Note 11] After a hearing on the matter, the judge denied both motions in an order and memorandum dated September 14, 2001. The father appeals from the judge's decisions granting the guardian's requested relief and denying his

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motions to dismiss, for reconsideration, and for a new trial. We granted the father's application for direct appellate review.

2. Modification. On appeal, the father does not contest the judge's conclusions that Cailyn's welfare win suffer without his continued financial support and that his continued support would be in Cailyn's best interests. Nor does he seriously contest that he has the ability to pay continued support in the amount of $125 a week. [Note 12] Rather, the essence of the father's argument is that, because the guardianship was statutorily terminated when Cailyn became eighteen years of age, and because she did not reside with either of her parents as required by the postminority support provisions of G. L. c. 208, s. 28, see note 1, supra, she was an "adult child" over whom the Probate and Family Court lacked further jurisdiction.

We agree that the judge erred in ordering the father to pay postminority child support to Eccleston pursuant to G. L. c. 208, s. 28, the divorce modification statute. Eccleston is not Cailyn's "parent," and Cailyn therefore does not meet the statutory prerequisite that she be "domiciled in the home of a parent."

Nor could such an award be predicated on G. L. c. 201, s. 40, which allows a support award to a guardian. The Legislature has specified that guardianship of a minor must end when "the minor attains the age of eighteen years." See note 9, supra. The statutory reference to an actual age precludes judicial discretion. See Leibovich v. Antonellis, 410 Mass. 568, 576 (1991) (no question of statutory construction where Legislature's intentions expressly stated).

Nor may this statutory end date be extended, or "tolled," as the judge held, by reference to general procedural rules regarding the commencement of actions, Mass. R. Civ. P. 3, as amended, 385 Mass. 1215 (1982), and Mass. R. Dom. Rel. P. 3 (2001) (same). See Risk Mgt. Found. of the Harvard Med Insts., Inc. v. Commissioner of Ins., 407 Mass. 498, 505 (1990) ("general statutory language must yield to that which is more specific"). Because her legal relationship with Cailyn ended as

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a matter of law on Cailyn's eighteenth birthday, Eccleston had no cognizable claim, as guardian, to receive support for Cailyn's care and maintenance, and, insofar as the judge ordered the father to pay postminority child support to her in that capacity, this was error.

3. Postminority support. However, the fact that the judge lacked authority under either G. L. c. 208, s. 28, or G. L. c. 201, s. 40, to order the father to pay postminority support to the former guardian for Cailyn's benefit does not, in our view, compel the conclusion that Cailyn was emancipated as a matter of law for all purposes when the guardianship ended on her eighteenth birthday, or that, as the dissent asserts, the father was then beyond the reach of the Probate and Family Court's jurisdiction in the matter of her continued support. The Legislature did not intend that emancipation "automatically occur on reaching the age of majority" in all circumstances. Larson v. Larson, 30 Mass. App. Ct. 418, 420 n.3 (1991), citing Turner v. McCune, 4 Mass. App. Ct. 864, 865 (1976). [Note 13] To the contrary, since lowering the presumptive age of majority from twenty-one to eighteen, see St. 1973, c. 925 ("An act establishing the age of majority for certain legal purposes as eighteen years of age"), [Note 14] the Legislature has acted repeatedly to clarify and reinforce its intent that a child's attaining eighteen years

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does not, of itself, terminate the support obligations of a noncustodial parent. In 1975, for example, the Legislature amended G. L. c. 208, s. 28, to grant Probate Court judges the authority to issue "orders of maintenance" for "any child who has attained age eighteen years but who has not attained the age of twenty-one years and who is living in the home of a parent, and is principally dependent upon said parent for maintenance." St. 1975, c. 661, s. 1. [Note 15] In 1976, the Legislature further expanded the jurisdiction of Probate Court judges to order postminority support under G. L. c. 208, s. 28, by authorizing a judge to issue orders for payment of "support and education," as well as maintenance for children between eighteen and twenty-one years of age in specified circumstances. St. 1976, c. 279, s. 1. In 1991, the Legislature once more enlarged the Probate and Family Court's authority over child support matters in divorce actions as to "any child who has attained age twenty-one but who has not attained age twenty-three" where the dependent child lives with the custodial parent and is pursuing an undergraduate degree. St. 1991, c. 173, s. 1. See note 1, supra. "The Legislature apparently intended that children meeting the requirements set forth in [G. L. c. 208,] s. 28 continue to be considered 'minors' at least for purposes of support." Stolk v. Stolk, 31 Mass. App. Ct. 903, 904-905 (1991).

The Legislature has not confined the opportunity for postminority support to children whose parents are divorced. In language identical to the postminority support provisions of G. L. c. 208, s. 28, it has given Probate and Family Court judges authority to impose postminority support orders on noncustodial

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parents where the parents have never married each other, or have legally separated. See G. L. c. 209C, s. 9, as amended through St. 1995, c. 38, s. 167, and St. 1996, c. 199 (paternity); and G. L. c. 209, s. 37, as amended by St. 1975, c. 661, s. 2; St. 1976, c. 279, s. 2; and St. 1991, c. 173, s. 2 (separate support). The Legislature has also enacted laws to ensure that children who have "aged out" of foster care on reaching the age of eighteen years receive postminority support to enable them to pursue opportunities for education, rehabilitation, and training. See G. L. c. 119, s. 23 (Department of Social Services may retain responsibility for former foster child to age twenty-one years, with person's agreement, "for the purposes of specific educational or rehabilitative programs"). See also G. L. c. 152, s. 31 (widowed spouse of deceased employee covered by workers' compensation benefits may receive additional payment for each child, including child over age of eighteen years who is "a full time student" and qualified dependent under Internal Revenue Code); G. L. c. 209D, s. 1-101 (Uniform Interstate Family Support Act, defining "[c]hild" as "an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual's parent or who is or is alleged to be the beneficiary of a support order directed to the parent").

In enacting such statutes, the Commonwealth has recognized that merely attaining the age of eighteen years does not by itself endow young people with the ability to be self-sufficient in the adult world. [Note 16] Statutes providing for postminority support advance the Legislature's purposes to maintain children "as

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completely as possible" from parental resources, see G. L. c. 119A, s. 1, to protect minor children of nonintact families from parental "underinvestment," see note 16, supra, and to encourage a skilled, educated workforce.

Yet there is a small category of children of nonintact families whose needs for postminority support the Legislature has not specifically addressed. It is the category to which Cailyn belongs: namely, children who, prior to turning eighteen years old, have become wards of the State because their parents are found unfit to care for them and who, after reaching eighteen years of age, continue to make their domicil with a custodial adult who voluntarily provides for them. As to such children, insofar as they are found to be "unemancipated" (that is, financially dependent), the equity powers granted to Probate and Family Court judges in G. L. c. 215, s. 6, are broad enough to permit a judge to impose a postminority support order on the child's financially able noncustodial parent or parents.

In so holding, we act 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 statues "liberally" to secure the welfare of children. G. L. c. 119A, s. 1. Contrary to the dissent, we do not agree that an interpretation of the Probate Court's statutorily authorized equity jurisdiction that would disadvantage an especially vulnerable class of children is either required or proper under our laws. We have previously recognized that the general equity jurisdiction of the Probate and Family Court, conferred by statute, may be invoked to order a divorced, financially able noncustodial parent to contribute to the support of a mentally or physically incapacitated adult child. See Feinberg v. Diamant, 378 Mass. 131, 134136 (1979). In conferring general equity jurisdiction on the Probate and Family Court, the Legislature intended to "assure that the interests of justice are served," id. at 137, in such

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circumstances as were present in Feinberg and that are present here. Rather than a "dangerous" act of superlegislation, as the dissent claims, post at 440, resort to equity is both explicitly authorized by the Legislature and appropriate as the narrowest ground on which relief can be afforded to Cailyn.

Moreover, the conclusion we reach today is neither forbidden by, nor contrary to, the provisions of any other statute. See id. at 137. The record demonstrates that Cailyn is a child who in every respect would qualify for postminority support from her noncustodial divorced parent pursuant to G. L. c. 208, s. 28, had she a fit parent with whom she could "domicil" during her college years. But the neglectful, or worse, behavior of her mother and father has deprived Cailyn of any opportunity to establish domicil with either of them, not by her own choice but mandated by the Commonwealth for her own safety. It would be inimical to the Legislature's command that Massachusetts courts safeguard "the long-term well being of the child," G. L. c. 119, s. 1, including "dependent" adult children to age twenty-three, to deny relief to a dependent child who is bereft of her parents' custody in the circumstances present here. See also G. L. c. 215, s. 28 ("The supreme judicial court or appeals court may, upon appeal, reverse or affirm, in whole or in part, any judgment, decree or order of the probate court . . . or make any order therein as law and justice may require").

Eccleston, Cailyn's former guardian, has agreed to provide a domicil for Cailyn, although under no legal obligation to do so, and she has performed her caretaking role, as the judge found, in a manner both appropriate and supportive. Having determined that the Commonwealth, for Cailyn's own benefit, prevented Cailyn from maintaining a domicil with either of her parents, that Eccleston continues to provide a domicil for Cailyn, that Cailyn still needs financial support, that Cailyn's father is able to provide that support, and that Cailyn's domicil with Eccleston remains in her best interests, the judge properly could have ordered the father to pay postminority support to Eccleston for Cailyn's benefit under G. L. c. 215, s. 6. He "simply should

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not have done so as a corollary to the decree nisi of divorce." Feinberg v. Diamant, 378 Mass. 131, 136 (1979). [Note 17]

4. Other motions. The father's motions for dismissal, reconsideration, and a new trial largely duplicate arguments we have considered and rejected. To the extent that the father's reconsideration and new trial motions raise factual questions concerning Cailyn's domicil, we note only that, on appeal, the father has addressed this argument peripherally at best, and we therefore need not consider it. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). See Adoption of Sherry, 435 Mass. 331, 339 (2001). In any case, we find nothing in the record that would lead us to disturb the judge's finding on the question of Cailyn's domicil. Bush v. Bush, 402 Mass. 406, 411 (1988).

5. Conclusion. We affirm the judge's denial of the father's motions for dismissal, reconsideration, and a new trial. We vacate the support order entered pursuant to G. L. c. 208, s. 28, and remand this matter to the Probate and Family Court for further proceedings in accordance with this opinion. On remand, the modification complaint should be treated as a complaint by

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Eccleston for equitable relief pursuant to G. L. c. 215, s. 6. The judge should reinstate the support order and "take any other action consistent with general equity jurisprudence to assure that the interests of justice are served." Feinberg v. Diamant, supra at 137.

So ordered.

COWIN, J. (dissenting). The court today holds that a judge of the Probate and Family Court may order the payment of postminority support to the plaintiff through the use of that court's general equity powers, G. L. c. 215, s. 6. It does so despite its conclusion that the applicable statutory remedies, the "comprehensive legislative scheme providing postminority support to children of disrupted families," ante at 437, do not permit a probate judge to issue an identical order. I dissent because a judge may not act in equity in a manner contrary to statute, and because the court, in sanctioning such an action, has created a dangerous precedent.

The court's holding violates one of the oldest tenets of equity jurisprudence: equity must follow the law. 2 Pomeroy, Equity Jurisprudence s. 425 (5th ed. 1941). This centuries-old principle holds that, where the law (either common or statutory) provides a remedy bounded by restrictions (as the court admits G. L. c. 208, s. 28, does here), a court may not act in equity either to extend or to supplement that remedy. See Hedges v. Dixon County, 150 U.S. 182, 192 (1893); Freeman v. Chaplic, 388 Mass. 398, 406 n.15 (1983) ("a grant of equitable powers does not permit a court to disregard statutory requirements"); Heard v. Stanford, 25 Eng. Rep. 723, 723-724 (1736). The rationale behind this restriction is self-evident: if courts had the power to fashion equitable remedies for problems already addressed by legislation, they would be free to ignore any statutory remedies and restrictions that they deem inconvenient. They would become, in short, super-Legislatures.

The court has fallen prey to this temptation before, see Adoption of Vito, 431 Mass. 550, 570-571 (2000) (Cowin, J., concurring), and does so again today. The court makes the following

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holdings: (1) There is a "comprehensive legislative scheme," ante at 437, regulating postminority educational support orders. [Note Dissent-1] (2) The applicable portion of this legislative scheme, G. L. c. 208, s. 28, cannot be interpreted to allow the Probate Court to grant educational support to Eccleston, because the Legislature intended to limit such payments to parents, and Eccleston is not Cailyn's parent. See ante at 433. (3) The Probate Court may, nevertheless, exercise its equitable powers to issue an identical order. See ante at 437. How, given the statutory command limiting postminority educational support to parents, does the court justify this final holding? The inescapable answer is that the court believes that it may ignore statutory restrictions when it acts in equity.

The court apparently is operating in the mistaken assumption that G. L. c. 215, s. 6, allows the Probate and Family Court to fashion equitable remedies that run counter to statute, so long as the Legislature has not explicitly forbidden it to do so. That impression is both wrong and disingenuous. It is wrong because s. 6 states specifically that the Probate and Family Court's equitable powers are limited by the general principles of equitable jurisprudence, and the rule that equity follows the law is one of those principles. See 2 Pomeroy, Equity Jurisprudence, supra at s. 425. It is disingenuous because the court is well aware that the Legislature is not in the habit of prohibiting actions contrary to statute; it presumes that the courts will adhere to the restrictions its statutes impose. The Legislature enacts laws, not suggestions, and it assumes that courts understand this. The court has apparently failed to grasp that to act outside the bounds of a comprehensive legislative scheme is necessarily to act contrary to it: [Note Dissent-2] in holding that a probate judge may award postminority support to a child pursuant to its equitable powers, regardless

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whether that child is domiciled with a parent or principally dependent on that parent, the court essentially eliminates two of the three statutory postminority support requirements contained in G. L. c. 208, s. 28. Nor is there any reason to suppose that the third requirement is safe. Given that the reach of the Probate Court is now constrained only by "the long-term well being of the child," ante at 438, a probate judge could presumably grant a postminority support order to a deserving thirty year old "child" if the judge found justice so to require.

Although the court justifies its action as a means of avoiding "disadvantag[ing] an especially vulnerable class of children," ante at 437, it ignores the fact that in this case Cailyn has been disadvantaged, not by fate, but by statute. Children over the age of twenty-three years, children who do not live with their parents, and children who are independent of their parents (all of whom cannot receive educational support under s. 28) are equally "disadvantaged." Crafting an additional statutory exception for the "vulnerable" is a legislative function; if the Probate and Family Court may fashion such an exception pursuant to its equitable powers, one wonders what purpose the statute itself actually serves.

The court attempts to minimize the import of its misuse of equity by stating that it acts only to "close an unintended gap in the comprehensive legislative scheme providing postminority support" (emphasis added). Ante at 437. The problem, of course, is that the characterization of the gap as "unintended" is inherently subjective. Gaps in legislative schemes do not come with labels, so there is nothing to stop us from classifying as "unintentional," when it suits us, a gap that the Legislature created by design. The rule that equity must follow the law was fashioned specifically to ensure that judges do not rewrite the law in this fashion.

The true import of today's opinion lies not in what it does but in what it portends. From this point forward when the Probate Court acts in equity it may ignore statutory boundaries

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and the gaps that those boundaries produce. The vast opportunities for judicial overreaching thus created are, by themselves, disturbing. The court's inability (or unwillingness) to recognize the problem, however, leads me to believe that future abuses will go uncorrected and become increasingly common. I must, therefore, dissent.