Cusack v. Clasby

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18-P-711 Appeals Court

SHEILA A. CUSACK & another1 vs. ANN T. CLASBY, personal
representative.2

No. 18-P-711.

Middlesex. December 10, 2018. - February 6, 2019.

Present: Kinder, Neyman, & Desmond, JJ.

Executor and Administrator, Accounts, Attorney's fees. Probate
Court, Accounts, Attorney's fees.

Petition filed in the Middlesex Division of the Probate and
Family Court Department on October 15, 2014.

The case was heard by Maureen H. Monks, J.

Michael H. Riley for the respondents.
John Foskett for the petitioner.

KINDER, J. In this dispute involving the estate of

Catherine P. Cusack, three of her children, Sheila Cusack, Karen

Cusack-Bouvier, and Thomas Cusack, objected to the final

accounting and settlement of the estate proposed by their sister

1 Karen Cusack-Bouvier.

2 Of the estate of Catherine P. Cusack.
2

and the decedent's personal representative, Ann T. Clasby.3 A

judge of the Probate and Family Court struck the objections,

allowed the petition for complete settlement, discharged Clasby,

and awarded attorney's fees to the estate. On appeal, Sheila

Cusack and Karen Cusack-Bouvier (the objectors) claim that it

was error to allow the petition for settlement before

distributions to the heirs proposed by the petition had been

made. Discerning no error, we affirm the decree and order

allowing the petition.

Background. Catherine P. Cusack died on June 7, 2014, and

is survived by eight children, who are equal heirs of her

estate. On October 15, 2014, Clasby filed a petition for formal

probate. On December 1, 2015, Clasby filed a petition for order

of complete settlement on a preprinted form of the Probate and

Family Court and requested that the judge "[c]onsider the First

and final account(s) and approve said accounting(s),

distribution of assets, and adjudicate a final settlement of the

estate."4 The objectors filed objections, claiming that Clasby's

3 Thomas Cusack eventually withdrew his objections and is
not a party to this appeal.

4 Over time, Clasby filed two amended petitions for order of
complete settlement that reflected the estate's additional
receipts and expenses. The changes are not material to this
appeal.
3

proposed final account represented that distributions to the

heirs had been made, when in fact they had not.

Clasby filed a motion to strike the objections as ones not

permitted under the Massachusetts Uniform Probate Code (MUPC).

The objectors countered with a motion for summary judgment and

for attorney's fees in which they repeated the argument made in

their affidavits of objection. The judge denied the motion for

summary judgment, reasoning that payment could not be made until

the final accounting was approved. The judge stated her

intention to assess attorney's fees against the objectors, and

she further ordered that "[t]he distributions to the heirs as

required in the final Decree shall be made immediately upon the

issuance of that Decree." On January 26, 2017, the judge issued

a written memorandum of decision and order (1) striking the

objections, (2) directing Clasby to file a new motion for

attorney's fees, and (3) ordering Clasby to file a proposed

final decree after the issue of attorney's fees had been

resolved. On March 16, 2017, the judge ordered each of the

objectors to pay $1,237.50 in attorney's fees to the estate.5 On

December 20, 2017, a decree and order entered (1) allowing the

final accounting and complete settlement and the distributions

5 Thomas Cusack was ordered to pay attorney's fees in the
amount of $4,875, based on the judge's assessment that more time
was required to respond to his numerous pleadings and requests
for discovery.
4

stated therein, and (2) discharging the personal representative.

This appeal followed.

Discussion. We review motions to strike objections de

novo, accepting as true the factual allegations contained in the

objecting party's affidavit. See Baxter v. Grasso, 50 Mass.

App. Ct. 692, 694 (2001). The objections in this case present a

question of statutory interpretation which we also review de

novo. Guardianship of B.V.G., 474 Mass. 315, 320 (2016).

Prior to the enactment of the MUPC in 2008, the settlement

of testamentary estates was governed by G. L. c. 206, § 22.

Under the case law interpreting that statute, the personal

representative of an estate could not petition for complete

settlement until all payments had been made by the estate. See

Bell v. Swift, 322 Mass. 145, 149 (1947), citing Grigaliunos v.

Frost, 270 Mass. 455, 458 (1930) ("it is for payments and not

appropriations for payment that an accountant may rightfully

demand allowance"). The objectors claim that this body of law

survived enactment of the MUPC and precluded the judge from

allowing final settlement of the estate and discharging the

personal representative before distributions to the heirs had

been made. We disagree.

General Laws c. 206, § 22, was repealed when the MUPC was

enacted. See St. 2008, c. 521, § 38. While the MUPC did not

replace all common-law principles concerning the affairs of
5

decedents, it replaced those "displaced by [its] particular

provisions." G. L. c. 190B, § 1-103. Under the MUPC, G. L.

c. 190B, § 3-1001, controls the settlement of estates, and,

pursuant to § 3-1001 (a), a personal representative seeking an

order for complete settlement may now "request the court . . .

to consider the final account, [or] compel or approve an

accounting or distribution or both." Thus, the plain language

of the MUPC authorized Clasby to request both the approval of an

accounting and a distribution of the estate. See G. L. c. 190B,

§ 3-107 ("petitions for formal orders of the court may combine

various requests for relief in a single proceeding if the orders

sought may be finally granted without delay"). Likewise, the

court was authorized to "enter an order or orders, on

appropriate conditions, . . . approving settlement and directing

or approving distribution of the estate." G. L. c. 190B, § 3-

1001 (b). As nothing in the MUPC prohibits a personal

representative from requesting, or a judge from ordering, the

simultaneous approval of a proposed final settlement and a

distribution consistent with that proposed settlement, we see no
6

error in the judge's decision.6,7 Our interpretation of G. L.

c. 190B, § 3-1001, is consistent with the legislative purpose of

the MUPC, which is to promote a "speedy and efficient system for

liquidating the estate of the decedent and making distribution

to the decedent's successors." G. L. c. 190B, § 1-102 (b) (3).

The objectors appear to be concerned that Clasby will fail

to comply with the court's order that she make distributions to

the heirs immediately upon the issuance of the decree. Should

that occur, the objectors are not without a remedy. Non-

compliance with a court order is actionable as civil contempt.

See Birchall, petitioner, 454 Mass. 837, 853 (2009) (in all

6 We note that the procedural guide issued by the
Administrative Office of the Probate and Family Court outlines
exactly such a procedure. The guide provides, "In addition to
requesting the approval of a final account to close the estate,
a Petition for Order of Complete Settlement may request that the
court: (1) make a final determination of testacy if not
previously determined; (2) make a final determination of the
decedent's heirs at law, if not previously determined; (3)
determine and approve a proposed distribution; AND/OR (4)
construe the will as proposed" (emphasis added). MUPC Estate
Administration Procedural Guide § 10.6.2 (2d ed. 2016).

7 The objectors attach significance to the fact that Clasby
checked the box requesting approval of the final account and
distribution of assets on the preprinted Probate and Family
Court form, but did not check a separate box compelling
particular distributions. We do not interpret the absence of a
check in the distribution box as controlling, see Leighton v.
Hallstrom, 94 Mass. App Ct. 439, 445-446 (2018) (magistrate's
failure to check box on preprinted form not determinative), and
we think it was clear that Clasby was seeking the court's
authorization for the final settlement of the estate and the
distribution of shares to the heirs, as set forth in the
accompanying final account.
7

cases, civil contempt may be found by clear and convincing

evidence of disobedience of a clear and unequivocal command);

Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 565

(1997) ("Civil contempt is a means of securing for the aggrieved

party the benefit of the court's order").

The objectors also appeal the award of attorney's fees to

the estate and the denial of their request for an award of

attorney's fees. Costs and expenses may be awarded in a

contested probate action "as justice and equity may require."

G. L. c. 215, § 45. A judge's award of costs and fees under

§ 45 is "presumed to be right" and will not be disturbed absent

an abuse of discretion. Matter of the Estate of King, 455 Mass.

796, 805 (2010), quoting Smith v. Smith, 361 Mass. 733, 738

(1972). Here, in a margin endorsement on September 29, 2016,

the judge ordered Clasby to pay out the distributions

immediately upon approval of the account and stated that she

would assess fees incurred by the estate in defending against

the objectors' motion for summary judgment. The judge also

found that "the objectors persisted in litigation that

unreasonably resulted in greater fees for the estate." In these

circumstances, we discern no abuse of discretion in the award of

attorney's fees to the estate. For essentially the same

reasons, the judge did not abuse her discretion in denying the

objectors' request for fees. See L.L. v. Commonwealth, 470
8

Mass. 169, 185 n.27 (2014) (no abuse of discretion unless judge

made a "'clear error of judgment in weighing' the factors

relevant to the decision such that the decision falls outside

the range of reasonable alternatives" [citation omitted]).

Finally, Clasby seeks an award of appellate attorney's

fees, claiming that the objectors have engaged in "the blind

pursuit of an erroneous and abstract legal theory." While the

objectors' legal argument has failed to persuade us, we cannot

conclude that their appeal was frivolous, and we therefore

decline to exercise our discretion to award appellate attorney's

fees and costs. See Masterpiece Kitchen & Bath, Inc. v. Gordon,

425 Mass. 325, 330 n.11 (1997).

Conclusion. The decree and order for settlement dated

December 20, 2017, is affirmed.

So ordered.