FEINBERG v. DIAMANT
378 Mass. 131 (1979)
389 N.E.2d 998
BARRY M. FEINBERG vs. MARILYN C. DIAMANT.
Supreme Judicial Court of Massachusetts, Suffolk.
May 16, 1979.
Benjamin W. Corey ( Edward Casey with him) for the defendant.
David J. Granovsky for the plaintiff.
Present: HENNESSEY, C.J., QUIRICO, KAPLAN, LIACOS, & ABRAMS, JJ.
In this case we are asked to decide whether a divorced parent can be compelled to contribute to the support of his mentally incapacitated adult child and, if so, whether the Probate Court has jurisdiction to issue the support order pursuant to G.L.c. 208, § 28.
We summarize the facts briefly as follows. The appellant, Marilyn C. Diamant, and the appellee, Barry M. Feinberg, were divorced in 1958. Diamant was awarded custody of their only child, Mark, and Feinberg was ordered to pay $17.50 a week for Mark's support. In 1961, this amount was increased to $25 a week by order of the court.
Mark is mentally retarded and has been a resident of the Walter E. Fernald State School in Waltham, Massachusetts, since 1968. In 1974, shortly after Mark reached the age of majority (as measured by G.L.c. 4, § 7, which as of January 1, 1974, reduced the age of majority to eighteen), a probate judge modified the support order so as to require that a guardianship be filed on Mark's behalf, that Diamant and Mr. Marc Redlich, an attorney, be named as coguardians, and that Feinberg pay them up to $25 a week for "the various personal expenses" stemming from Mark's residency at the Walter E. Fernald State School.
1. It is well settled in this and other jurisdictions that, as a general rule, the common law imposes no obligation on parents to support their adult, emancipated, or married children. See, e.g., Oliveria v. Oliveria, 305 Mass. 297, 299 (1940); Napa State Hosp. v. Flaherty, 134 Cal. 315 (1901); Mercer v. Jackson, 54 Ill. 397 (1870); McCrady v. Pratt, 138 Mich. 203 (1904). Although this court has never squarely faced the issue, a majority of courts which have considered the issue recognize an exception to the rule, which obtains in cases involving adult children who are mentally or physically incapacitated and incapable of self-support. In such situations the parents' obligation to support the child has been held to continue for as long as the child is incapacitated.
Some courts have held that the child's incapacity must exist at the time he or she reaches the age of majority in order for the duty to exist. See, e.g., Mt. Pleasant Overseers v. Wilcox, 2 Pa. Dist. Ct. 628 (1893). Other courts have required that the child continue living in the parents' home. See, e.g., Murrah v. Bailes, 255 Ala. 178 (1951); Pocialik v. Federal Cement Tile Co., 121 Ind.App. 11 (1951). We need not now decide whether we will adopt the former position, as it is clear from the record that Mark's incapacity existed at the time of his coming of age. We decline to adopt the latter as a per se rule, because in our view it works an unjustifiable hardship on the children of divorced or separated parents and children who have been institutionalized. Of course, if a child unwarrantedly refuses to live with the parent and such refusal creates extra and unnecessary expenses, that fact might be relevant in assessing the extent of the parent's duty to support. However, that is not the case here. Accordingly, we hold that a financially able divorced parent may be required to contribute to the support of an adult child who by reason of mental or physical infirmity incurs expenses that he or she is unable to meet.
This court has previously stated that "[t]he statutes governing the wife's right to alimony and child support constitute `a complete statutory system, intended to cover the field of civil liability for maintenance between husband and wife.... There is in this Commonwealth no nonstatutory right to sue for almmony or support.'" Orlandella v. Orlandella, 370 Mass. 225, 227 (1976), quoting from Gediman v. Cameron, 306 Mass. 138, 140 (1940). It is true that in Verdone v. Verdone, 346 Mass. 263, 264 (1963), we upheld a modification of a support decree directing, inter alia, the husband to pay "all expenses for all reasonable psychiatric treatment" of his mentally retarded adult son. However, that case came before the court on the wife's appeal, which challenged the amount awarded in other parts of the decree and the judge's refusal to consider the husband's net worth. Neither party raised the jurisdictional issue, and the court did not consider it. As a result, Verdone is of no precedential value and we will treat the issue as one of first impression.
We cannot ignore the term "minor" in G.L.c. 208, § 28, or construe it as encompassing an adult, incapacitated child. To do either would contravene the plain meaning of the statute. The appellant argues that G.L.c. 208, § 33,
Diamant and Mr. Redlich were appointed as Mark's coguardians in December of 1974, and the modification of support order was issued in contemplation of their appointment. As the Probate Court has jurisdiction over all matters pertaining to guardianships in this Commonwealth, see G.L.c. 215, § 3, that court clearly had the power to issue the order; it simply should not have done so as a corollary to the decree nisi of divorce. Because we think that it would be exalting form over substance to affirm the revocation of the order and require the appellant to institute a separate action with the appropriate claim of jurisdiction, we reverse and remand the case for consideration of the appellee's claim that Mark's guardians incurred excessive and unnecessary expenses. On remand, the appellant's 1974 petition should be deemed amended to make Mark, through his guardians, a party, Mass. R. Civ. P. 15(a), 365 Mass. 761 (1974), and the case should be treated as coming within the Probate Court's general equity powers and powers to decide cases involving
3. The judgment is reversed and the case is remanded to the Probate Court for further proceedings in accordance with this opinion.
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