referencing Section 74 of the Restatement (First) but declining to require restitution of alimony paid pursuant to an order that was reversed in a decision establishing a new rule of law
How later courts described this case
- referencing Section 74 of the Restatement (First) but declining to require restitution of alimony paid pursuant to an order that was reversed in a decision establishing a new rule of law
- following a denial of alimony termination, absent the allowance of a stay, the payor spouse must continue alimony payment pending the appellate court’s decision
- “While we have not done so, some courts have ordered restitution where a judgment has been reversed after a party has been ordered by a court to make payment to another, and the judgment has been paid”
- “restitution is appropriate only if the circumstances of its receipt or retention are such that, as between the two persons, it is unjust for [her] to retain it” [citation omitted]
Written by the judges who cited it.
The opinion
Lynch, J.
(dissenting). In Keller v. O’Brien, 420 Mass. 820 (1995) (Keller I), we held that a recipient spouse’s remarriage makes a prima facie case requiring the court to end alimony absent proof of some extraordinary circumstances established by the recipient warranting its continuation. In so holding, the court recognized that, absent such extraordinary circumstances, it is illogical and unreasonable that a spouse should receive support from a current spouse and a former spouse at the same time. See Keller I, supra at 828, and cases cited. This holding was in accord with the decision in Southworth v. Treadwell, 168 Mass. 511, 513 (1897), where, one hundred years ago, this court held that remarriage is prima facie evidence of a material change of circumstances which would warrant termination of alimony *786 absent proof that support by a new spouse was not adequate to meet all of the recipient spouse’s needs. See Keller I, supra at 823 (discussing holding in Southworth v. Treadwell, supra); O’Brien v. O’Brien, 416 Mass. 477, 481 (1993) (“when a successor spouse is financially able to support the former recipient spouse, the former payor spouse is not obliged to contribute support payments”). Furthermore, the conclusion in Keller I was consistent with the long-standing principle in the Commonwealth that it is inequitable to allow a spouse to receive support from two individuals. Glazer v. Silverman, 354 Mass. 177, 180 (1968). See Bushnell v. Bushnell, 393 Mass. 462, 467 (1984) (“duty of support arises out of the existence of a valid marriage”).
Clearly, then, the conclusion in Keller I cannot fairly be said to have been a decision that was not previously foreshadowed. Thus, the “novelty” of the decision is not a factor that would make it unjust or inequitable for the defendant to return the money paid to her under the erroneous judgment. Restatement of Restitution § 74 (1937) provides: “A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside.” 1
There appears to be no dispute that, at the time of their divorce, there was a fair and equitable division of the marital property between the parties. I, therefore, am at a loss to see how the plaintiff is not entitled to restitution of those alimony payments he made under a judgment based on an erroneous interpretation of the law which created a result that we have declared to be inequitable, illogical, and unreasonable. I respectfully dissent.
Comment c to the Restatement of Restitution § 74 at 305 (1937) provides that restitution may be inequitable if restitution would involve substantial hardship. Where there are no extraordinary circumstances requiring the continued payment of alimony and there does not appear to be a dispute over whether the defendant received a fair settlement at the time of the divorce, I do not believe that the court is entitled to conclude that the repayment of the alimony would create a financial hardship.