Johnson v. Settino

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22-P-941 Appeals Court

BRUCE JOHNSON vs. CAROLINE SETTINO.

No. 22-P-941.

Plymouth. March 1, 2023. – September 13, 2023.

Present: Milkey, Singh, & Brennan, JJ.

Marriage. Gift. Damages, Interest. Interest. Practice,
Civil, Interest.

Civil action commenced in the Superior Court Department on
January 16, 2018.

The case was heard by Brian S. Glenny, J., and a motion to
alter or amend the judgment also was heard by him.

Stephanie T. Siden for the plaintiff.
Caroline Settino, pro se.

SINGH, J. Under current Massachusetts law, "[i]t is

generally held that an engagement ring is in the nature of a

pledge, given on the implied condition that the marriage shall

take place. If the contract to marry is terminated without

fault on the part of the donor[, the donor] may recover the

ring" (emphasis added). De Cicco v. Barker, 339 Mass. 457, 458
2

(1959). The central question presented in this appeal is how

"fault" must be assessed in this context.

After calling off their wedding and ending the parties'

engagement, the plaintiff brought this action in the Superior

Court against his former fiancée, seeking the recovery of an

engagement ring and two wedding bands that he had purchased.

The defendant counterclaimed for breach of contract seeking

funds to complete a dental implant surgery that the plaintiff

had promised to pay for during their relationship.1

We reverse the Superior Court judge's disposition awarding

the engagement ring and one wedding band to the defendant and

vacate the award of prejudgment interest, which is to be

recalculated on remand.

Background. We summarize the facts found by the trial

judge, together with other undisputed background facts appearing

in the record. See Cavadi v. DeYeso, 458 Mass. 615, 617 (2011).

The plaintiff and the defendant met in the summer of 2016

and began dating soon afterward. Their relationship quickly

became serious over the first few months. The two would often

travel together, visiting places such as New York City; Bar

1 The defendant also brought a counterclaim for intentional
infliction of emotional distress. A Superior Court judge
granted summary judgment for the plaintiff on that count, and it
is not at issue on appeal.
3

Harbor, Maine; the Virgin Islands; and Italy. The plaintiff

paid for these vacations and expected nothing from the defendant

in return. He also often bought the defendant expensive gifts,

including jewelry, clothing, shoes, handbags, and artwork. It

was the plaintiff's custom to provide the defendant with

receipts for the gifts.

Additionally, the plaintiff would help the defendant with

certain medical expenses. For example, after the defendant

conveyed that she was interested in undergoing dental implant

surgery, the plaintiff stated that he would pay for the

procedure. The plaintiff then paid for the defendant to

complete the first part of the procedure, the extraction of her

upper teeth.

The plaintiff and defendant began to have discussions about

getting married. The two went shopping for engagement rings

several times. After visiting multiple stores, the plaintiff

eventually bought a diamond ring from a jeweler in Boston,

valued at over $70,000.2 After months of discussions, the

plaintiff planned his proposal.

In August 2017, the two went to lunch with the defendant's

parents. Once the defendant stepped away from the table, the

plaintiff asked her father for permission to marry her, to which

2 The plaintiff gave the defendant the receipt for the ring.
4

the father said yes. Later that day, the plaintiff and

defendant had dinner at a restaurant where the plaintiff had

arranged ahead of time to be seated at a corner-window table.

During dinner, the plaintiff asked the defendant to marry him

and presented her with the diamond engagement ring. The

defendant said yes and placed the ring on her own left ring

finger.3 The ring was given, and accepted, in anticipation of

marriage.

Soon after, the plaintiff and defendant began planning

their wedding. In October 2017, the plaintiff purchased two

wedding bands at a cost of just over $3,700, one engraved with

his initials and the other with the defendant's. The plaintiff

later gave the two wedding bands to the defendant; these were

also given in anticipation of marriage. As he had with the

engagement ring, the plaintiff provided the defendant with a

receipt for the wedding bands.

As the wedding planning progressed, the plaintiff noticed

that he found some traits of the defendant to be troubling.

3 In many cultures, the finger next to the little finger on
the left hand is known as the "ring finger" and is reserved for
the engagement ring and wedding band. See H. Swinburne, A
Treatise of Spousals, or Matrimonial Contracts § 15, at 208
(1686) (placement of matrimonial ring on left ring finger has
roots in belief that "Vena amoris," vein of love, runs directly
from ring finger to heart).
5

Following their engagement, the plaintiff began to feel that he

was routinely subject to verbal abuse. For instance, the

defendant would berate the plaintiff over a spilled drink, how

he ate oysters, and the time it took him to access messages on

his cell phone. She would call him a "moron" and treat him like

a child. If something went wrong, he was to blame. If the

plaintiff stood up for himself, the defendant would yell at him

and storm away. The plaintiff also felt that the defendant did

not appreciate any of his accomplishments, and that she did not

support him following his cancer diagnosis. Despite these

concerns, the plaintiff thought they could fix these issues and

make the relationship work.

One evening in November 2017, however, following dinner and

drinks, the plaintiff and defendant got into an argument.

During the argument, the defendant said, "I'm a good-looking

woman. I can get a man whenever I want." Disturbed by the

defendant's comment, the plaintiff looked through the

defendant's cell phone and came across a text message (text) to

a man whose name the plaintiff did not know. The text stated:

"My Bruce is going to be in Connecticut for three days. I need

some playtime." The plaintiff interpreted this as an invitation

for sex. The plaintiff also listened to a voicemail message

from the same individual where the man lamented the fact that

the defendant did not see him often enough. Given that the
6

plaintiff's first marriage had ended due to unfaithfulness, he

was very cautious and intolerant of infidelity.

The next morning, the plaintiff confronted the defendant

about the messages and accused her of having an affair. She

denied the accusation and explained that the man was her best

friend of over forty years and that their friendship was

strictly platonic. A week or two later, the plaintiff called

the defendant and ended their engagement by leaving a voicemail

message, stating that he felt disrespected and that he could not

trust her.4 This lawsuit followed.

After a jury-waived trial, a Superior Court judge found

that the plaintiff was mistaken in his belief that the defendant

was having an affair and thus, the plaintiff had to bear the

fault for the parties' separation. He awarded the engagement

ring and one of the two wedding bands to the defendant.5 The

judge also entered judgment for the defendant on her

counterclaim, ordering the plaintiff to pay "the reasonable

costs to complete [the defendant's] dental procedure of $42,982"

in addition to over $20,000 in prejudgment interest.

4 The plaintiff testified as to why he was skeptical of the
defendant's explanation: "I'm thinking, well, [i]f it's your
best friend and I'm your fiancé, how come I never met him? How
come I never heard of him? You know? You gotta wonder."

5 The other wedding band was awarded to the plaintiff and is
not at issue in this appeal.
7

Discussion. On appeal, the plaintiff challenges two

aspects of the judge's decision: (1) the finding of fault with

respect to the engagement ring and wedding band, and (2) the

award of prejudgment interest on the defendant's counterclaim.

On review of a jury-waived trial, "'[t]he findings of fact of

the judge are accepted unless they are clearly erroneous' and

'[w]e review the judge's legal conclusions de novo'" (citation

omitted). Cavadi, 458 Mass. at 624. "A finding is 'clearly

erroneous' when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed. On the

other hand, to ensure that the ultimate findings and conclusions

are consistent with the law, we scrutinize without deference the

legal standard which the judge applied to the facts" (citation

omitted). Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992).

1. Engagement ring and wedding band. The plaintiff argues

that the trial judge erred in faulting him for the parties'

separation and thus he is entitled to the return of the rings.

He contends that the judge improperly held him liable solely

because he was the one to terminate the engagement. The

defendant counters that the trial judge's decision was supported

by detailed findings that are not clearly erroneous and

therefore must be upheld. We begin our analysis with the

Supreme Judicial Court's decision in De Cicco, 339 Mass. 457,
8

the seminal case in Massachusetts on which the trial judge

relied.6

In De Cicco, 339 Mass. at 457-458, the plaintiff brought a

suit in equity to recover from his former fiancée, among other

items, a six-carat diamond engagement ring that was given in

contemplation of marriage. The Supreme Judicial Court

recognized in its decision that

"[i]t is generally held that an engagement ring is in the
nature of a pledge, given on the implied condition that the
marriage shall take place. If the contract to marry is
terminated without fault on the part of the donor he may
recover the ring" (emphasis added).

Id. at 458. The court did not expound on the meaning of

"fault," but went on to hold that the plaintiff was entitled to

the return of the ring. See id. at 459. In doing so, the court

rejected the defendant's argument that the plaintiff's suit was

barred by Massachusetts' "Heart Balm" statute, G. L. c. 207,

§ 47A,7 which bars all causes of action for breach of a contract

6 The issue in De Cicco was whether any action to recover an
engagement ring could be maintained and not whether the
plaintiff was entitled to recover under the facts presented.
See De Cicco, 339 Mass. at 458-459. There, it had been
determined that "the defendant broke the engagement without
'adequate cause' or 'fault' on the part of the plaintiff." Id.
at 458. As there was no challenge to this determination, the
issues of fault and what constitutes adequate cause to break an
engagement were not discussed.

7 General Laws c. 207, § 47A, states: "Breach of contract
to marry shall not constitute an injury or wrong recognized by
law, and no action, suit or proceeding shall be maintained
therefor."
9

to marry. See De Cicco, supra at 458-459. See also Shea v.

Cameron, 92 Mass. App. Ct. 731, 736-738 (2018). The court

reasoned that the plaintiff's suit was a proceeding, not to

recover damages for breach of the contract to marry, but to

prevent unjust enrichment. See De Cicco, supra at 459.

In the many years since the Supreme Judicial Court decided

De Cicco, our appellate courts have not addressed how fault

should be assessed in this context. Case law from other

jurisdictions in the United States reveals three general

approaches to resolving the question before us.

A minority of States employ the traditional fault-based

approach (the old majority view), where courts consider the

facts of a particular case and make a fault determination to

resolve which party owns the ring. This approach generally

permits recovery based on a conditional gift theory. Courts

have differed, however, on how to assess fault under this

approach. In some cases, fault is assigned based on whose

actions ended the engagement -- i.e., who broke it off.8 In

others, courts determine fault by assessing whose underlying

conduct was responsible or caused the breakup to occur.9

8 See, e.g., Schultz v. Duitz, 253 Ky. 135, 140-142 (1934);
Curtis v. Anderson, 106 S.W.3d 251, 255-256 (Tex. App. 2003).

9 See, e.g., Simonian v. Donoian, 96 Cal. App. 2d 259, 261-
262 (1950); Clippard v. Pfefferkorn, 168 S.W.3d 616, 619-620
(Mo. Ct. App. 2005); Spinnell v. Quigley, 56 Wa. App. 799, 802
10

Next, there is the so-called modern no-fault approach,

which has emerged as the majority rule across the country. In

employing this approach, courts generally view the ring as a

conditional gift that must be returned to the donor if the

engagement is terminated,10 regardless of fault.11

Finally, at least one State has adopted a third approach,

rejecting the theory that an engagement ring is a conditional

gift given in contemplation of marriage, and instead adopting

(1990) ("The donee should keep the ring only if the donor
unjustifiably breaks the engagement").

10See, e.g., Fowler v. Perry, 830 N.E.2d 97, 106 (Ind. Ct.
App. 2005); Fierro v. Hoel, 465 N.W.2d 669, 672 (Iowa Ct. App.
1990); Heiman v. Parrish, 262 Kan. 926, 936 (1997); Meyer v.
Mitnick, 244 Mich. App. 697, 703-704 (2001); Benassi v. Back &
Neck Pain Clinic, Inc., 629 N.W.2d 475, 486 (Minn. App. 2001);
Aronow v. Silver, 223 N.J. Super. 344, 348-350 (Ch. Div. 1987);
Vigil v. Haber, 119 N.M. 9, 11 (1994); Gaden v. Gaden, 29 N.Y.2d
80, 88-89 (1971); McIntire v. Raukhorst, 65 Ohio App. 3d 728,
730-731 (1989); Cooper v. Smith, 155 Ohio App. 3d 218, 226
(2003); Lindh v. Surman, 560 Pa. 1, 8-9 (1999); Campbell v.
Robinson, 398 S.C. 12, 21-22 (Ct. App. 2012); Crippen vs.
Campbell, Tenn. Ct. App., No. E2007-00309-COA-R3-CV (Sept. 24,
2007); Brown v. Thomas, 127 Wis. 2d 318, 328-330 (Ct. App.
1985).

11 One State has recognized a narrow exception to the no-
fault view, reserving the consideration of fault for "extremely
gross and rare situations" that may arise. Heiman, 262 Kan. at
937, quoting Marriage of Sommers, 246 Kan. 652, 657 (1990).
Other jurisdictions have applied the "unclean hands" doctrine to
bar recovery by a donor who could not legally marry at the time
of the engagement. See, e.g., Lowe v. Quinn, 27 N.Y.2d 397,
400-401 (1971). But see Fontanarosa v. Connors, 2021-Ohio-2346,
at par. 21-22 (Ct. App.) (when donee is aware that donor was
married at time of engagement, unclean hands doctrine does not
apply).
11

what is in essence a no-fault rule for the donee by treating the

ring as an irrevocable inter vivos gift.12

As for the remaining jurisdictions, some States have not

considered what approach to apply in determining the ownership

of an engagement ring following a failed prenuptial

relationship,13 and others appear to have not yet decided how

fault should be assessed in the circumstances presented in this

appeal.14

Here, the plaintiff urges us to conclude that an assessment

of fault requires some sort of justification analysis; in other

words, a party should be found at fault for breaking off an

12 Albinger v. Harris, 310 Mont. 27, 40 (2002).

13See, e.g., Bradley v. Sharp, 144 Haw. 59 (Ct. App. Jan.
31, 2019) ("Although Hawai'i appellate courts have never
considered the question, engagement rings are generally
recognized as gifts conditioned upon marriage"); Maffe vs.
Loranger, Conn. Super. Ct., No. CV196108439S (Jan. 28, 2021)
("it is unclear what standard the supreme or appellate court [of
Connecticut] would apply to a case involving a claim for the
return [of] an engagement ring given in contemplation of
marriage, when the parties fail to get married"); Lowman vs.
Martino, R.I. Super. Ct., No. PC 2012-6634 (Jan. 13, 2016)
("Rhode Island precedent is silent as to who owns an engagement
ring when a marriage does not ensue").

14See, e.g., Hattaway v. Coulter, 360 So. 3d 1047 (Ala.
Civ. App. 2021); Gill v. Shively, 320 So. 2d 415, 416-417 (Fla.
Dist. Ct. App. 1975); Carroll v. Curry, 392 Ill. App. 3d 511,
518-520 (2009); Busse v. Lambert, 773 So. 2d 182, 183-184 (La.
Ct. App. 2000); Cooley v. Tucker, 200 So. 3d 474, 476 (Miss. Ct.
App. 2016); Gikas v. Nicholis, 96 N.H. 177, 179 (1950); Fanning
v. Iversen, 535 N.W.2d 770, 773-775 (S.D. 1995); McGrath v.
Dockendorf, 292 Va. 834, 840 n.3 (2016).
12

engagement only if the party does so without justification. In

the alternative, the plaintiff asks us to adopt the modern no-

fault rule in favor of the donor. While the adoption of the no-

fault approach would be in keeping with Massachusetts' no-fault

divorce provisions under G. L. c. 208, §§ 1A and 1B,15 see Lindh

v. Surman, 560 Pa. 1, 7 (1999) ("Courts that have applied no-

fault principles to engagement ring cases have borrowed from the

policies of their respective legislatures that have moved away

from the notion of fault in their divorce statutes"), that is

not our prerogative as an intermediate appellate court. If

Massachusetts is to join States that have held that the

consideration of fault has no place in determining ownership of

an engagement ring following a broken engagement, see note 10,

supra, it will have to come from the Supreme Judicial Court or

the Legislature. See Gerber v. Worcester, 1 Mass. App. Ct. 811,

812 (1973).

In any event, De Cicco indicates that Massachusetts applies

the conditional gift fault-based approach. See De Cicco, 339

Mass. at 458-459. Although fault is variously defined in

different legal contexts, see, e.g., Helfman v. Northeastern

15In 1975, after the Supreme Judicial Court's decision in
De Cicco, the Massachusetts Legislature added "an irretrievable
breakdown of the marriage" as a ground for divorce. St. 1975,
c. 698, amending G. L. c. 208, § 1, and inserting G. L. c. 208,
§§ 1A and 1B.
13

Univ., 485 Mass. 308, 315 (2020) (listing elements of

negligence), "no legal standard exists by which a fact finder

can adjudge culpability or fault in a prenuptial breakup."16

Campbell v. Robinson, 398 S.C. 12, 21 (Ct. App. 2012), and cases

cited. Whatever the definition, in our view, it cannot be that

the person at fault for a relationship break-up is simply the

one who decides to end it; common sense dictates that a party

16And perhaps for good reason: "What is fault or the
unjustifiable calling off of an engagement?" Heiman v. Parrish,
262 Kan. 926, 935 (1999). This question often poses a
difficult, if not impossible, task for a court to undertake.
See Benassi v. Back & Neck Pain Clinic, Inc., 629 N.W.2d 475,
486 (Minn. App. 2001) ("'Fault,' for these purposes, is a
deceptively elusive concept; because it is impossible to fix
with any certainty, it should not be given legal significance");
McIntire v. Raukhorst, 65 Ohio App. 3d 728, 730 (1989) (no-fault
rule "eliminates the need for a trial court to attempt the often
impossible task of determining which, if either, party is at
fault").

As the Kansas Supreme Court aptly put in addressing the
difficulties of a fault-based approach:

"By way of illustration, should courts be asked to
determine which of the following grounds for breaking an
engagement is fault or justified? (1) The parties have
nothing in common; (2) one party cannot stand prospective
in-laws; (3) a minor child of one of the parties is hostile
to and will not accept the other party; (4) an adult child
of one of the parties will not accept the other party; (5)
the parties' pets do not get along; (6) a party was too
hasty in proposing or accepting the proposal; (7) the
engagement was a rebound situation which is now regretted;
(8) one party has untidy habits that irritate the other; or
(9) the parties have religious differences. The list could
be endless."

Heiman, 262 Kan. at 935.
14

who ends an engagement is not necessarily the one to blame for

that result.17 See Webster's Third New International Dictionary

829 (2002) (fault defined as "responsibility for wrongdoing or

failure"). Were it otherwise, fault in the engagement

termination context would be more akin to strict liability. See

Clark-Aiken Co. v. Cromwell-Wright Co., 367 Mass. 70, 73 (1975)

(characterizing strict liability as "absolute liability without

fault" [emphasis added]). We thus agree with the plaintiff, as

well as the majority of jurisdictions employing a conditional

gift fault-based approach, that a justification analysis is

needed to assess fault in these circumstances.

We now turn to review the judge's finding of fault in this

case. Rather than assess the plaintiff's conduct, it appears

that the judge focused his attention on the defendant's conduct:

"The Court finds that [the plaintiff] has failed to show by a

preponderance of the evidence that [the defendant] was having a

sexual affair." Yet, that was not the plaintiff's burden, nor

what the plaintiff set out to prove. Rather, the plaintiff

17See Cooper v. Smith, 155 Ohio App. 3d 218, 225 (2008)
("The fault-based approach permits the donor to recover the
gifts unless he or she unjustifiably broke the engagement");
Lindh, 560 Pa. at 6 ("Under a fault-based analysis, return of
the ring depends on an assessment of who broke the engagement,
which necessarily entails a determination of why that person
broke the engagement"); Spinnell v. Quigley, 56 Wa. App. 799,
802 (1990) ("The donee should keep the ring only if the donor
unjustifiably breaks the engagement").
15

sought to establish that he was without fault and thus entitled

to return of the rings in accordance with De Cicco.18 As

foreshadowed in his opening statement, the plaintiff attempted

to show that his termination of the engagement was based on

circumstances which reasonably led him to lose faith and trust

in the defendant.19 The question was never whether the defendant

was actually having an affair; it was whether the plaintiff

terminated the engagement without fault.

As to any assessment of the plaintiff's fault, the only

culpable conduct identified by the judge was the plaintiff's

termination of the engagement based on a mistaken belief:

"The Court finds that [the plaintiff] was responsible for
the ending of the engagement, and not [the defendant]. It
was a choice made solely by [the plaintiff]. The Court
finds that the ending of the relationship was solely the
decision of [the plaintiff], based predominately on his
belief, albeit mistaken, that [the defendant] was having
sexual relations with another man behind his back. The
Court finds that [the plaintiff] based his decision on the

18In his opening, the plaintiff's counsel stated: "Your
Honor, we feel this is a clear case because I think we'll be
able to show fairly convincingly that [the plaintiff] did
nothing wrong in ending his relationship with [the defendant].
As a matter of Massachusetts law, because he is without fault,
the rule is that the rings go back to him."

19"You'll hear how these texts and voicemails caused [the
plaintiff] to understandably end his relationship with [the
defendant] because he could not trust her anymore. . . . [The
plaintiff] reasonably interpreted this text message and
voicemail as evidence of [the defendant] having an affair."
16

discovery of texts and voice mails and not on the way [the
defendant] treated him."20

It appears that the judge, having found the defendant to be

not at fault because she was not having a sexual affair,21

concluded that the plaintiff must be at fault:

"The Court finds that [the plaintiff] must bear the fault
for the breakup of this engagement. [The plaintiff] cites
no case where the reasonableness of [his] actions is the
measuring stick. The plaintiff mistakenly thought [the
defendant was cheating on him and called off the
engagement, something [the defendant] neither sought nor
wanted."

That the defendant was not at fault and did not want to end the

engagement does not mean that the plaintiff was at fault. In

removing the reasonableness of the plaintiff's conduct from the

calculus, the judge failed to consider whether the circumstances

were such that the plaintiff may have been justified or had

adequate cause to break off the engagement, in other words, that

20This finding appears to be in conflict with another
finding in which the judge concluded that the plaintiff called
off the wedding based, not only on his discovery of the texts
and voicemail messages on the defendant's phone, but also on his
perception of how the defendant mistreated him.

21Although the judge appeared to consider the defendant to
be at fault if she were actually having a sexual relationship
with another person, infidelity could be considered in broader
terms, for example, maintaining a secret best friend. See A.
Krueger, Emotional Infidelity: What It Is and How to Address
It, https://www.brides.com/what-is-emotional-infidelity-5101139
[https://perma.cc/39QQ-VAM6] ("emotional infidelity describes
relationships that break the boundaries of exclusive
relationships but are not sexual or physical").
17

he may have been "without fault," the relevant inquiry as set

out in De Cicco.

Accepting the judge's subsidiary factual findings, we

conclude that the evidence was insufficient to sustain a finding

that the plaintiff was "at fault" for the parties' separation.

See Kendall, 413 Mass. at 621 ("the 'clearly erroneous' standard

of appellate review does not protect findings of fact or

conclusions based on incorrect legal standards"). Although the

plaintiff may have largely been motivated by a mistaken belief,

we cannot say that he was unjustified or did not have adequate

cause to break the engagement under the circumstances

presented.22 Sometimes there simply is no fault to be had. See

Gaden v. Gaden, 29 N.Y.2d 80, 88 (1971) ("In truth, in most

broken engagements there is no real fault").

The plaintiff is entitled to the return of the engagement

ring and wedding band.23 Judgment shall enter for the plaintiff

on this count.

22The plaintiff testified at trial that it was "not just
this one instance that caused [him] to end [the relationship].
It was the whole experience." He also testified that when
ending the engagement, he told the defendant, "You don't respect
me and I can't trust you."

23We discern no principled reason why the wedding band
should be treated differently than the engagement ring as both
were given in anticipation of marriage.
18

2. Prejudgment interest. The plaintiff next argues that

the judge erred in awarding prejudgment interest on the damages

for the defendant's breach of contract counterclaim –- the

plaintiff's failure to pay for the defendant's dental implant

surgery.

Prejudgment interest on a claim based in contract is

governed by G. L. c. 231, § 6C, which provides:

"In all actions based on contractual obligations, upon a
verdict, finding or order for judgment for pecuniary
damages, interest shall be added by the clerk of the court
to the amount of damages, at the contract rate, if
established, or at the rate of twelve per cent per annum
from the date of the breach or demand."

G. L. c. 231, § 6C.

The purpose of § 6C is to compensate a "party for the loss

of use or unlawful detention of money" after the date payment is

due (citation omitted). Sterilite Corp. v. Continental Cas.

Co., 397 Mass. 837, 841-842 (1986). In the ordinary course, the

statute "commands a ministerial act" by the clerk of the court.

O'Malley v. O'Malley, 419 Mass. 377, 381 (1995). However, a

judge has the authority to decline to award prejudgment interest

where it would result in a windfall to the recipient. See

Sterilite Corp., supra; USM Corp. v. Marson Fastener Corp., 392

Mass. 334, 350-351 (1984) ("The judge's determination not to

award prejudgment interest was proper in the circumstances").

The matter is one of "balancing equities." USM Corp., supra at
19

350. See Bank v. Thermo Elemental Inc., 451 Mass. 638, 662-663

(2008).

The plaintiff contends that the judge erred in not

declining to award prejudgment interest in this case because the

defendant did not get the dental implant surgery prior to trial

and "she was therefore not out of pocket any monies." Relying

on Sterilite Corp., 397 Mass. at 842, the plaintiff argues that

the award of prejudgment interest to the defendant on a sum that

she did not actually expend prior to trial results in a windfall

to her. We disagree.

Sterilite involved an insurer's breach of the duty to

defend under an insurance policy. See Sterilite, 397 Mass. at

837-838. The insured was awarded as damages legal fees expended

in defending itself over the course of six years. See id. at

838. Although the breach occurred in 1976 when the insurer

notified the insured that it would not defend, the court noted

that the insurer had no duty to pay until the insured forwarded

its bills to the insurer, the bulk of which were submitted after

the action was lodged in 1980. See id. at 838, 841-842. Thus,

the court determined that the insured would have received a

windfall from receiving prejudgment interest from a time before

the insurer had a duty to pay. See id. at 841-842. The issue

was not whether the insured was "out of pocket" but rather when

the insurer's duty to pay arose.
20

Here, by contrast, the plaintiff had a duty to pay at the

time of the planned dental implant surgery, following the teeth

extraction in August 2017.24 Additionally, the balance of

equities, see USM Corp., 392 Mass. at 350, was consistent with

the award of prejudgment interest to the defendant. The

plaintiff committed a breach of his promise to pay for the

defendant to undergo dental implant surgery.25 Relying on that

promise, the defendant had her upper teeth extracted. At the

time the parties separated, the defendant had not completed the

second part of the procedure, where she would receive implants

to replace her extracted teeth. The plaintiff was left with two

options: pay for the procedure herself and risk an out-of-

pocket loss of over $42,000, or go without the dental implants.

That the defendant chose the latter when faced with this dilemma

because she could not afford the procedure on her own "should

not devolve to [the plaintiff's] benefit when [his breach]

24Although there was no evidence as to how soon after the
first surgery the second surgery was to take place, there was
evidence that the entire procedure was to be completed, at the
latest, by the time of the wedding but that the defendant did
not have the surgery done because she could not afford it.

25The plaintiff has not challenged the trial judge's
finding on this point. See Rhode Island Hosp. Trust Nat'l Bank
v. Varadian, 419 Mass. 841, 849 (1995) ("When a promise is
enforceable in whole or in part by virtue of reliance, it is a
'contract,' and it is enforceable pursuant to a 'traditional
contract theory' antedating the modern doctrine of
consideration" [citation omitted]).
21

caused the necessity of legal action and the damages." Siegel

v. Berkshire Life Ins. Co., 70 Mass. App. Ct. 318, 323 (2007).

Because the plaintiff withheld from the defendant funds for

the dental implant surgery, the plaintiff unlawfully detained

money (as it rightfully belonged to the defendant) and the

defendant suffered the loss of use of money (to pay for dental

implant surgery). Consistent with the purpose of G. L. c. 231,

§ 6C, the defendant is entitled to prejudgment interest. See

Sterilite Corp., 397 Mass. at 841 ("An award of interest is made

'so that a person wrongfully deprived of the use of money should

be made whole for [their] loss'" [citation omitted]).

Although the award of prejudgment interest was appropriate,

we conclude that it was improperly calculated. According to the

judgment, prejudgment interest accrued on the defendant's

counterclaim from the date that the plaintiff filed his

complaint in the Superior Court, January 16, 2018. Since the

judge made no finding on when the plaintiff breached the

agreement to pay for the defendant's dental surgery, prejudgment

interest should have accrued from the date that the defendant

filed her counterclaim, August 23, 2018. See G. L. c. 231,

§ 6C. See also Deerskin Trading Post, Inc. v. Spencer Press,

Inc., 398 Mass. 118, 125-126 (1986). For that reason, the award

of $20,999.50 in prejudgment interest is vacated and the matter
22

is remanded to calculate prejudgment interest from the date that

the defendant filed her counterclaim.

3. Conclusion. We reverse so much of the judgment

awarding the engagement ring and wedding band at issue to the

defendant, and judgment shall enter for the plaintiff on that

count. We vacate so much of the judgment awarding prejudgment

interest. In all other respects, the judgment is affirmed. The

matter is remanded for recalculation of prejudgment interest and

entry of an amended judgment consistent with this opinion.

So ordered.
MILKEY, J. (dissenting in part). I agree with the majority

that under existing Massachusetts case law, an engagement ring

is viewed as a conditional gift. See De Cicco v. Barker, 339

Mass. 457, 458 (1959). I further agree that a donor of an

engagement ring can reclaim it if the donor is not at fault for

terminating the engagement. See id. Because I disagree with

the particular manner in which the majority addresses the fault

issue here, I respectfully dissent. However, I additionally

note my view that this case presents an opportune moment for the

Supreme Judicial Court to revisit the existing case law.

Where a plaintiff's right to prevail turns on whether the

plaintiff was at fault, resolving such fault issues involves

questions of fact. See O'Sullivan v. Shaw, 431 Mass. 201, 209

n.3 (2000) (extent to which plaintiff in tort action bore

contributory fault was "question of fact properly reserved for

the trier of fact"). That principle applies to amatory matters

as well, if fault is at issue. See, e.g., Leavitt v. Leavitt,

229 Mass. 196, 199-200 (1918) (because appellate court "cannot

reverse [trial judge's] finding of facts," affirming dismissal

of fault-based divorce action where judge had found that husband

consented to wife's improprieties by giving her money to buy

skirt while knowing that she had "adulterous disposition" and
2

was planning on visiting another man with whom she had "undue

and censurable familiarity").1

Were I the fact finder here, I would not have found the

plaintiff at fault for terminating the parties' engagement.

After all, although his suspicion that his fiancée was having an

affair proved incorrect (according to the unreviewable

credibility findings made by the judge), the plaintiff had what

I consider an objectively reasonable basis for forming such a

belief. And, in any event, after the flurry of accusations and

heated responses on both sides caused the relationship to

unravel, I do not believe that the plaintiff can be blamed for

reaching the eminently reasonable conclusion that this marriage

was not destined to be. In this respect, my own views are

closely aligned with those of the majority.2

1 There is a dearth of recent cases addressing fault in the
context of amatory matters for reasons that are easy to explain.
The enactment of the no-fault divorce statute in 1975 generally
removed fault issues from having to be resolved in divorce
actions. See G. L. c. 208, § 1, inserted by St. 1975, c. 698,
§ 1 (adding "irretrievable breakdown of the marriage" as ground
for divorce). As to the lack of cases dealing with failed
engagements, a context seemingly ripe for acrimonious
litigation, the enactment of the so-called Heart Balm Act in
1938 generally precluded the party who claimed to have been
"wrong[ed]" by the other from suing for breach of the contract
to marry. See De Cicco, 339 Mass. at 458-459.

2 And I certainly agree with the majority that a party is
not at fault simply because that party is the one who called off
the engagement.
3

But I am not the fact finder, and the trial judge found the

plaintiff at fault after hearing testimony from all involved. I

do not think that finding fairly can be said to be clearly

erroneous on this record. Cf. Mitchell v. Mitchell, 312 Mass.

165, 170 (1942) ("The decision of the judge who heard the

divorce case on a question of fact should stand even if some

other judge, upon evidence heard by him, decides that question

differently"). That is because it was not unreasonable for the

judge to assign fault to someone who wrongly accused his fiancée

of infidelity after going through her text messages and

listening to her voicemail without permission. Therefore, under

existing case law, I believe we are constrained to affirm the

judgment in so far as it ordered that the defendant gets to keep

the engagement ring that the plaintiff had given to her.3 See

Pointer v. Castellani, 455 Mass. 537, 539 (2009) ("Where there

are two permissible views of the evidence, the factfinder's

3 I agree with the majority that both wedding bands -- which
the plaintiff paid for but ended up in the defendant's
possession -- should be returned to the plaintiff, albeit for a
somewhat different reason. At the point the engagement
unraveled, the wedding bands may have been "given" to the
defendant in the limited sense that they were then in her
possession to hold for the upcoming wedding, but they had not
been "gifted" to her. Prior to the exchange of wedding bands at
a wedding ceremony, such rings by their nature are neither
conditional gifts, nor unconditional gifts. There is simply no
basis for the judge to rule that the defendant gets to keep the
ring that was to be presented to her at a wedding that never
took place.
4

choice between them cannot be clearly erroneous" [citation

omitted]). The majority has avoided that result only by

effectively moving to a no-fault standard, all while

acknowledging that we, as an intermediate appellate court, lack

the authority to do so. I therefore respectfully dissent.4

That said, I question the propriety of trying to get to the

bottom of such fault issues in the context of failed

engagements. Although the reasons for that are largely self-

evident in this era of no-fault divorces, the majority itself

has well explained the problematic nature of trying to assign

fault in a case such as this. Simply put, there is an inherent

unseemliness to having judges, or juries, sitting in judgment of

matters of the heart. Obviating the need for such inquiry is

presumably one of the principal reasons behind the enactment of

the Heart Balm Act, G. L. c. 207, § 47A. De Cicco ruled that

suits to recover engagement rings stand as an exception to the

otherwise broad reach of that statute. As the plaintiff here

has suggested, the current appeal may present a propitious

4 The majority reads the judge as saying that the plaintiff
must be at fault only because the defendant was not. Putting
aside whether a fault-based scheme in fact presupposes that at
least one party must be at fault should a relationship fail, I
do not read the judge's findings and rulings so narrowly. But
even if the judge relied on an erroneous view of the law, then
we should be remanding, not reversing, on that issue unless we
could say that the plaintiff was not at fault as a matter of
law. I do not believe we can or do say that.
5

opportunity for the Supreme Judicial Court to revisit whether De

Cicco should still stand, or whether -– now over six decades

later -- its reasoning needs to be revisited.

To be clear, I disagree with the plaintiff's apparent

assumption that he necessarily would prevail if the existing

case law were modified to omit fault from the calculus. If the

Supreme Judicial Court chooses to reexamine the fault issue in

light of changing social norms, it may also wish to revisit the

premise that an engagement ring is a conditional gift that its

donor can sue to recover even in the face of the Heart Balm Act.

See De Cicco, 339 Mass. at 459. While there is at least some

force to the plaintiff's argument that applying notions of fault

in this context is grounded in outdated, sexist norms, a similar

argument can be forged with respect to viewing engagement rings

as conditional gifts. See Tushnet, Rules of Engagement, 107

Yale L.J. 2583, 2607-2608 (1998).5 Perhaps it is time to view a

gift of jewelry as indeed a gift, and not, in effect, as

security for the wedding.6

5 In the note, the author argued that the increasingly
popular approach of treating engagement gifts as no-fault
conditional gifts is founded on the "stereotypes of scheming
lower-class vixens" and "prevent[s] certain kinds of injuries
suffered mainly by women from being recognized in court."

6 Even if the reasoning in De Cicco were abandoned with
respect to engagement rings, it may still be appropriate to
recognize other types of transfers made in contemplation of
marriage as implied conditional gifts. For example, prewedding
6

None of this is to say that I think the defendant here

should have kept the ring. To the contrary, my own view is that

she should have given it back. But why should my personal view

on this issue matter? To me, the ultimate question this case

poses is whether such issues should be resolved in courts of

law, or instead left to the interplay between private conscience

and social norms.

gifts intended for joint use by the couple after the wedding may
warrant different treatment.