Eccleston v. Bankosky

Cowin, J.

(dissenting). The court today holds that a judge of the Probate and Family Court may order the payment of post-minority support to the plaintiff through the use of that court’s general equity powers, G. L. c. 215, § 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 § 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, § 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 *441holdings: (1) There is a “comprehensive legislative scheme,” ante at 437, regulating postminority educational support orders.1 (2) The applicable portion of this legislative scheme, G. L. c. 208, § 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, § 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 § 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 § 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:2 in holding that a probate judge may award postminority support to a child pursuant to its equitable powers, regardless *442whether 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, § 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 “disadvantaging] 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 § 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 *443and 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.

The court makes no attempt to suggest that postminority support is an area where the law provides no remedy. It cites, in fact, no less than five statutes that provide for some form of educational support beyond the age of eighteen years. See ante at 435-436.

Feinberg v. Diamant, 378 Mass 131 (1979), on which the court relies as support for its decision, is not to the contrary. There we held that a parent has a common-law obligation to provide support for an incompetent adult child, see id. at 133-134. Because neither the statutory nor common law of the Commonwealth provided a remedy for this right, we authorized the Probate Court to fashion an equitable remedy. See id. at 136-137. The Feinberg case does *442not, however, stand for the proposition that the Probate and Family Court may act in equity where, as here, a legal remedy does exist. See Freeman v. Chaplie, 388 Mass. 398, 406 & n.15 (1983) (Probate Court could not award custody pursuant to equitable powers contrary to statutory requirements).