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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").

10 See, 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 nofault 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).

13 See, 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").

14 See, 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 nofault rule in favor of the donor. While the adoption of the nofault 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 nofault 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 

15 In 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 

16 And 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 

17 See 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 

18 In 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 

20 This 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. 

21 Although 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.

22 The 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."

23 We 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-ofpocket 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] 

24 Although 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. 

25 The 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 selfevident 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.