Pomeroy v. Department of Public Welfare

325 N.E.2d 275, 3 Mass. App. Ct. 177, 1975 Mass. App. LEXIS 616

Opinions

Grant, J.²

The plaintiff has appealed from a decree of the Superior Court affirming (on a bill for review under G. L. c. 30A, § 14) a decision of the Department of Public Welfare (department) rendered under G. L. c. 18, § 16 (as amended through St. 1969, c. 885, § 11), denying the claim of the plaintiff which is hereinafter described. The case is physically before us on papers which include the record of the proceedings before the department, something called “Parties Agreed Statement of Facts” which was submitted to and considered by the Superior Court,* *³ and a copy of what we are advised is the pertinent version of the department’s Massachusetts Public Assistance Policy Manual (Manual) .⁴ The material facts may be summarized as follows.

On January 10, 1964, the plaintiff’s then husband secured from the Probate Court for the county of Hampden a decree of divorce nisi⁵ from the plaintiff in which she was awarded custody of the three minor children of the parties and he was ordered to make weekly payments to her of $40 for the support of the children. For some reason which is not entirely clear, such payments as were made by the former husband were made to the probation office of the District Court of Springfield, which remitted them to the plaintiff until December 11,1967.

On March 16, 1967, the plaintiff applied to the department for Aid to Families with Dependent Children (AFDC) assistance payments for herself and the three children. On March 28, 1967, the department approved the application, subject to the qualification that the plaintiff’s family budget was to be determined on the basis of her needs and those of two of the children who were then living in the plaintiff’s home, and would not reflect the needs of the third child, who had been placed in the Bel-chertown State School in 1965 and who still resided there.⁶ Because she was receiving (through the District Court) some support payments from her former husband, the plaintiff’s monthly AFDC payments were in the amount of the budgeted need as thus computed, less the support payments actually received, which were treated as an “available resource” (Manual, c. IV, § B, p. 1). The plaintiff was duly advised in writing of the department’s determination and of her right to appeal therefrom within sixty days if dissatisfied (Manual, c. VI, § B, p. 2). She did not appeal.

From April 7, 1967, until December 11, 1967, the plaintiff received support payments from her former husband which were supplemented by AFDC assistance payments in such amounts that her combined income from both sources was equal to the amount of the family budget, as computed in the manner previously described. On December 11, 1967, the department arranged with the District Court to have the sporadic support payments which were being made by the former husband remitted to itself, while at the same time increasing the amounts of its direct payments to the plaintiff so that they would be equal to the total amount of the computed family budget (Manual, c. IV, § B, p. 8) .⁷ Those arrangements for payments persisted until August 3, 1970, when the plaintiff relinquished custody of the child at Belchertown to her former husband pursuant to a modification of the divorce decree.⁸

The department did not give the plaintiff an express written explanation of its actions in rearranging payments in the manner just described. We think, however, that the purpose of any such requirement was met in this case. The plaintiff must have understood the rearrangements from the facts (a) that she was no longer receiving payments from the District Court and (b) that she was receiving grant checks which were increased by amounts which reflected the support payments which her former husband should have been making to the District Court.⁹ The plaintiff, although aware of her right of appeal if dissatisfied, took no appeal from the rearrangement within sixty days (Manual, c. VI, § B, p. 2) of December 11, 1967, or within sixty days of her first learning of the rearrangement.

At various times following December 11,1967, the plaintiff, according to her testimony at the departmental hearing, made purchases of clothing and personal effects for the child at Belchertown.¹⁰ On several occasions she tried without success to persuade the department to reimburse her for such expenditures.¹¹ The appeal which gave rise to the present proceedings was filed by the plaintiff with the department on December 14, 1970. It purports to be from some unidentified official’s refusal to approve a request made by the plaintiff on November 23, 1970, that she be paid $937.66, which is said to represent one third of the aggregate of the support payments made by the former husband between December 11, 1967 (when the department rearranged the method of payments), and August 3, 1970 (when the plaintiff relinquished custody of the child at Belchertown).

The theories of the plaintiff’s request (which was denied by the department) appear to be that the department, which had refused to include the needs of the child at Bel-chertown in the determination of the AFDC family budget and thus had not been supporting that child, acted wrongfully (a) in diverting to itself the one third of the support payments which had been intended by the Probate Court for the use of that child and (b) in forcing the plaintiff to use for the support of that child portions of the budget which had been intended by the department to meet the needs of the other two children who were living with the plaintiff.

We do not pause to examine the plaintiff’s theories in detail,¹² for a majority of the court are of the opinion that any legitimate grievance the plaintiff may have had with respect to the rearrangement of payments which was effected on December 11, 1967, was barred by the expiration of the aforementioned sixty-day appeal period long before the plaintiff purported to appeal on December 14, 1970.¹³ Although “a decision in favor of an appellant applies retroactively to the date the incorrect action was taken” (Manual, c. VI, § C, p. 3), that section clearly applies only to action from which a timely appeal has been taken. The plaintiff’s request for $937.66 was unequivocally retroactive in nature. It sought modification or reversal of a course of action which had been initiated by the department more than three years earlier (and of which the plaintiff had been given timely written [see n. 9] and oral notice), and which had terminated more than three months earlier. We see no error in the department’s denial of the request. To hold otherwise would be to nullify the requirement that appeals be filed within sixty days of written notification of the action to be appealed from.

Decree affirmed.

Footnotes

2

The appeal in this case was argued on March 20, 1974, before a panel comprised of Justices Rose, Goodman and Grant, and on that date one of the members of the panel was assigned to the preparation of an opinion which would reflect the views of the panel. In Februarv of 1975 the other three justices were called in to take part in the decision pursuant to Rule 24(a) of Mass. R.A.P., 365 Mass. 872 (1974). On March 19, 1975, the author was directed to bring in an opinion which would reflect the views of a majority of all the justices. The opinion prepared by the author was approved by such a majority on March 28, 1975.

3

This statement includes numerous stipulations as to facts of which there was no evidence during the course of the hearing before the referee appointed under G. L. c. 18, § 16. See subparagraphs (4), (6) and (7) of the third paragraph of G. L. c. 30A, § 14 (as amended through St. 1968, c. 637, § 1), and the penultimate paragraph of said § 14. See also Multi-Line Ins. Rating Bureau v. Commissioner of Ins. 357 Mass. 19, 20, 24 (1970). Our disposition of this case does not require us to decide the status of such a statement in proceedings brought under § 14.

4

No part of the manual appears to have been offered in evidence at the hearing in the Superior Court. It is now before us by agreement of the parties pursuant to a request made by the members of the panel at the time of argument. See Carroll v. Acting Director of Pub. Welfare, 355 Mass. 182, 183, n. 2 (1969).

5

The decree subsequently became final.

6

This child appears to have remained at Belchertown at all material times.

7

The practical effects of these changes appear to have been (1) to relieve the plaintiff of the risks and hardships involved in her former husband’s not making timely payment in full of the support payments ordered by the Probate Court and (2) to avoid the inconveniences involved in the plaintiff’s having to apply for (and the department’s having to make) supplemental payments whenever the former husband should fall behind in his payments. There was absolutely no change in the total income of the plaintiff. Manual, c. IV, § B, p. 1.

8

The plaintiff and her former husband were apparently agreeable to his resuming direct responsibility for the support of the child at Belchertown. See n. 12, infra, third sentence.

9

She testified at the hearing of her departmental appeal that she had discussed the rearrangement with her social workers on several occasions following December 11, 1967. Accordingly, we look on the increased amounts of the plaintiff’s checks as the practical equivalent of formal written notice of the department’s actions in the rearrangement.

10

The times and total amounts of any such payments were never established.

11

On at least one occasion the department appears to have given the plaintiff $100 for the purpose of expenditures for the child at Belchertown.

12

The plaintiff has not offered any legal authority in support of the proposition that any one child is entitled to an aliquot share of an aggregate amount which a Probate Court may order paid to a parent for the support of a group of children. Nor has she offered to prove any correlation between the $937.66 and the aggregate of the amounts she may have spent on the child at Belchertown (see nn. 10 and 11). Nor is there any effort to reckon with the amounts which the referee found were being paid by the plaintiff’s former husband directly to the Belchertown State School and which he subtracted from the support payments made to the District Court after January of 1970.

13

We pass the point that the plaintiff’s real complaint (as the referee concluded) is as to the March 28, 1967, decision (from which no appeal was taken) that the needs of the child at Belchertown were not to be reflected in the computation of the aggregate amount of the plaintiff’s AFDC family budget.