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March 27, 2026 Get Citation Alerts Download PDF Add Note

Fern v. Baker

Massachusetts Appeals Court

• Citations: None known

• Docket Number: AC 24-P-1349

• Opinion

• Authorities (21)

• Cited By (0)

• Summaries (0)

• Similar Cases (44.7K)

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Combined Opinion

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

24-P-1349 Appeals Court

TRACEY E. FERN1 vs. ANTHONY W. BAKER2 & others.3

No. 24-P-1349.

Barnstable. November 17, 2025. – March 27, 2026.

Present: Henry, Sacks, & Tan, JJ.

Will, Power of appointment. Power of Appointment. Uniform
Durable Power of Attorney Act. Gift. Fiduciary. Intent.
Practice, Civil, Attorney's fees.

Complaint filed in the Barnstable Division of the Probate
and Family Court Department on April 9, 2019.

The case was heard by Edward F. Donnelly, Jr., J.

John P. Fulginiti (Timothy D. Braughler also present) for
the plaintiff.
Tiffany M. Bentley (Richard M. Novitch also present) for
the defendants.

1 Individually and as cotrustee of the Daniel J. Fern Trust.

2 Individually, as copersonal representative of the estate
of Frances R. Fern, and as cotrustee of the Daniel J. Fern
Trust.

3 Christopher A. Baker, individually and as copersonal
representative of the estate of Frances R. Fern; and Lisa A.
LoPorto, individually.
2

SACKS, J. Using the authority assertedly granted in a

durable power of attorney from their elderly mother, Frances R.

Fern (Frances), the defendants Anthony W. Baker (Tony) and

Christopher A. Baker (Chris) made gifts from their mother's

assets to themselves in amounts totaling $5.576 million, and an

additional $43,000 to Tony's long-term partner, defendant Lisa

A. LoPorto (Lisa).4 After Frances died in 2018, leaving a gross

estate of more than $37 million, the plaintiff, Tracey E. Fern

(Tracey) -- who is Frances's daughter by a second marriage and

thus Tony's and Chris's half sister -- learned of the gifts and

brought this suit in the Probate and Family Court. Tracey's

complaint asserted, as relevant here, that the gifts were not

authorized by the power of attorney, were not in any event

intended by Frances, and were improperly motivated and thus a

breach of Tony's and Chris's fiduciary duties to Frances.

Tracey did not object to Frances's will, which left the bulk of

her estate in equal shares to Tony, Chris, and Tracey.

After an eight-day trial in 2022, a judge of the Probate

and Family Court found against Tracey on all claims and entered

judgment for Tony, Chris, and Lisa. Tracey appealed, and Tony,

4 Because two of the defendants share a last name, and
because the plaintiff shares a last name with her late mother,
we use their first names for ease of reference, adopting the
short forms of the names used in the parties' briefs.
3

Chris, and Lisa cross-appealed from so much of the judgment as

denied their request for attorney's fees and costs. We affirm

the judgment in all respects.

Background. We summarize the most relevant facts as found

by the judge, reserving certain points for later discussion.

Frances was born in 1922 and had three children with her first

husband, Arthur Baker: Francis R. Baker (Frank) (born in 1954),

Chris (born in 1956), and Tony (born in 1958). After her first

husband died, Frances married Daniel J. Fern (Daniel) in 1960;

Daniel was an attorney and real estate investor and a founder of

the Hy-Line Ferry. Frances and Daniel had one child together,

Tracey (born in 1963). The family lived on Cape Cod.

The younger three children's relationships with Frances

were, at varying times and to varying degrees, difficult.5 Tony

had some conflicts with Frances during his school and college

years, but by 2001 he had become a critical support to Frances -

• handling her finances, taking her to appointments, acting as

her handyman, and listening to her "vent." Chris had periods of

estrangement from Frances in 1974-1975 and for some months in

the early 1980s, but by 2001 they spoke weekly, although Chris

moved to California and lived there until 2017.

5 We focus on the younger three children because Frances did
not include Frank in her estate plan.
4

Tracey's relationship with Frances was more troubled.

During Tracey's childhood, Frances was prone to becoming

irrationally angry and verbally and physically abusive. After

an incident in 1987 in which Frances attacked her, Tracey had no

contact with Frances for six to eight months. After they

resumed contact, Tracey described the relationship as "guarded,"

and Tony described it as "very complicated and often toxic."

Tracey had two daughters, but Frances felt that she had "very

limited access to [them], her only grandchildren." Frances was

disappointed that "Tracey's visits were infrequent and brief."

When Frances's husband and Tracey's father Daniel died in 2001,

Frances was upset that Tracey did not sit with or hug her at the

funeral.

1. First will and power of attorney. In 2002, Frances

executed a will and a durable power of attorney. The will

devised her jewelry and $50,000 each to Tracey's daughters;

$100,000 to Tracey; $10,000 to each of two charities; and the

remainder of her estate in equal shares to Tony and Chris, whom

the will nominated as executors. Frances gave a power of

attorney to Tony and Chris, authorizing them, among other

things, to make gifts from her assets.

In March 2012, Frances fell and was hospitalized. She

became combative, agitated, angry, and "just not herself." She

accused Chris of kidnapping her and accused Tony of stealing her
5

wallet and papers. She wanted Tracey to take care of her and

began communicating more frequently with Tracey. Tracey told

Frances not to trust Tony and Chris and that they were trying to

take control of Frances's finances. At the suggestion of

Tracey's husband, Frances retained a new attorney, and then she

revoked her previous will, health care proxy, and power of

attorney.

1. Second will and power of attorney. In April 2012,

Frances executed a new will, which devised $150,000 each to Tony

and Chris; $10,000 to each of two charities; and the remainder

of her estate to Tracey, who was to serve as her personal

representative. Frances also gave a durable power of attorney

(which included gifting authority) to Tracey, with Tracey's

husband to serve as the alternate. Frances moved from a

rehabilitation facility back to her home. Frances then visited

her various banks, "telling anyone who would listen that [Tony

and Chris] had tried to have her declared incompetent and take

over her affairs."

In the fall of 2012, however, Tracey began visiting less

often, and Frances seemed to be "slowly coming back" and

"starting to question what happened." At a birthday lunch for

her in October 2012, Frances told Tony and Chris that she was

happy to see them and "wanted things to go back to the way they

had been." In February 2013, Frances wanted to revoke the power
6

of attorney to Tracey "but had not decided who to name as the

new attorney-in-fact."

1. Third will and power of attorney. In March 2013,

Frances executed a new will, which after her death in 2018 was

admitted to probate without objection. The will devised her

jewelry to Tracey's daughters; $10,000 to each of two charities;

and the remainder of her estate in equal shares to Tony, Chris,

and Tracey. The will nominated Tony and Chris to serve as

copersonal representatives. Frances also executed a new durable

power of attorney to Tony and Chris. The power authorized them,

among other things, "[t]o make outright gifts of my property to

or for the benefit of such persons who, in the opinion of my

said attorney, would be the donees I may choose."

Frances told Tony that the new will treated him, Chris, and

Tracey equally, and that Tracey had promised that she and her

daughters would be part of Frances's life. Frances told her

attorney at the time that she "wanted to give Tracey a second

chance." In mid-2013, however, after an emotional discussion of

finances, Frances's relationship with Tracey took another turn

for the worse. Tracey and her daughters did not visit as much

as Frances wanted. Frances told Tony that "she hoped she had

not made a mistake in changing her will."

At about this time, Frances and Tony discussed gifting.

Frances "realized there would be large tax savings." She told
7

Tony that "she would review any gifting in the future and that

her only concern was who was with her in her old age."

Toward the end of 2013, Frances's health declined rapidly,

resulting in multiple hospitalizations and then her move to an

Alzheimer's unit at a health care center, where she remained

until her death in 2018. During her final years, Frances was

still able to recognize visitors, including Tony, Chris, and

Lisa, and was happy to see them. Tony visited five times per

week and celebrated birthdays and holidays with Frances;

sometimes he brought Frank along. Chris moved from California

back to Massachusetts in early 2017 and visited Frances about

twice per week. Lisa visited Frances three or four times per

week and every other weekend.

Tracey visited once in January 2014, but she found

Frances's behavior during that visit upsetting and never visited

again, feeling that she was a "trigger" for Frances. Frances

sometimes expressed disappointment and disbelief that Tracey and

her daughters did not visit. Frances was also "hurt and

puzzled" that Tracey, unlike Tony and Chris, did not maintain a

relationship with their older brother, Frank.

1. Gifts. Tony and Chris first considered making large

gifts in July 2016. We reserve for later discussion the judge's

findings about their understanding of Frances's donative intent.

For now, we note only that the judge found that "the decision to
8

start making gifts was spurred by the Presidential elections and

anticipated changes to the tax laws." Tony and Chris understood

that the Democratic candidate for President proposed to

substantially reduce the Federal gift and estate tax exemptions

and to increase the estate tax rate. Tony also "consulted with

a tax professional and determined that gifting would result in

substantial savings on the expected Massachusetts estate tax."

Beginning in July 2016, Tony and Chris caused gifts to be

made to themselves in installments, as Frances's many

certificates of deposit matured. Tony's gifts totaled $2.938

million and Chris's $2.638 million; in each case, all but

$49,000 of gift funds was received before the 2016 election.6

Lisa received a total of $43,000. Tony and Chris did not

discuss these gifts with Frances, believing that they were

consistent with her intentions but that she no longer had the

capacity to understand financial matters.

1. Truro property. In July 2016, Tony and Chris learned

of a house and property for sale in Truro. They purchased it

that October for $3.3 million, with each of them contributing

6 These amounts, as stipulated by the parties and
incorporated in the judge's findings, were the subject of a
postjudgment motion by Tracey to correct clerical mistakes.
That motion was not acted on by the time the record was
assembled for this appeal, but any changes in the totals caused
by a ruling on that motion would not affect our analysis or
conclusions.
9

one-half of the purchase price. Tony and Chris had sufficient

assets to purchase without using the gifts from Frances, and at

trial they both denied that the gifts affected their decision to

purchase the property. They lived there at the time of trial.

The judge ultimately concluded that "[t]he optics of this

purchase, close in time to the gifts, certainly were not ideal.

However, where [Tony and Chris] proved that the gifts were

authorized by the power of attorney and not a breach of their

fiduciary duties, they could use the gifts as they wished."

Discussion. We begin by addressing Tracey's argument that

the gifting clause in the third power of attorney did not

authorize Tony and Chris to make gifts to themselves.7 We then

turn to Tracey's claim that, even if Tony and Chris were given

such authority, they failed to carry their burden of proving

that their exercise of it here was consistent with their

fiduciary duties and Frances's donative intent. Finally, we

consider whether the judge abused his discretion in denying the

request of Tony, Chris, and Lisa for attorney's fees and costs

under G. L. c. 215, § 45.

1. Authority granted by power of attorney. Chief among

the "rules of construction related to powers of attorney" is

that "[t]o ascertain and effectuate the intent of the parties as

7 Tracey does not challenge the gifts to Lisa.
10

manifested by the words used and the object to be accomplished

is the goal of all interpretations of written agreements"

(citation omitted). Barbetti v. Stempniewicz, 490 Mass. 98,

111-112 (2022). A power of attorney is "subject to a rule of

strict construction," but "[t]his rule does not go to the extent

of destroying the purpose of the power" (quotation and citation

omitted). Id. at 112. We determine the effect of the language

of a power of attorney de novo. See id.

Tracey contends that the gifting authority Frances granted

in the third power of attorney -- to make "outright gifts of my

property to or for the benefit of such persons who, in the

opinion of my said attorney, would be the donees I may choose" -

• was insufficient to authorize gifts to Tony and Chris, i.e.,

the attorneys themselves. Tracey relies on our statement in

Gagnon v. Coombs, 39 Mass. App. Ct. 144, 157 (1995), that "self-

dealing by an agent, in the absence . . . of distinct authority

from the principal expressly granted in the empowering

instrument, has been continuously and uniformly denounced as one

of the most profound breaches of fiduciary duty." Tracey argues

that the gifting language in Frances's power of attorney was not

sufficiently distinct and express to authorize the gifts

challenged here.

Tracey reads Gagnon too broadly. Nothing in that decision

establishes particular requirements for how explicit the
11

language of a power of attorney (or other instrument) must be

before an agent, given express authority (such as to gift, or to

sell, buy, borrow, or lend), may exercise that authority in a

manner benefiting himself.8 Plainly it would suffice if

Frances's power of attorney had authorized gifts to "persons who

may include my attorney" or "persons who may include any or all

of my children." The language Frances actually used here --

"persons who, in the opinion of my said attorney, would be the

donees I may choose" -- was sufficient to authorize gifts to the

attorneys themselves, at least where they were her immediate

family members. Under § 201(b) of the Uniform Power of Attorney

Act (UPAA), the power to gift includes by default the power to

make a gift to the attorney, if the attorney is also an

ancestor, spouse, or descendant of the principal. Although the

8 Nor are such requirements established in any of the
authorities relied on in Gagnon, 39 Mass. App. Ct. at 157-158.
See O'Brien v. Dwight, 363 Mass. 256, 283-284 (1973); Mackey v.
Rootes Motors Inc., 348 Mass. 464, 467-468 (1965); Berenson v.
Nirenstein, 326 Mass. 285, 288-289 (1950); Pitman v. Pitman, 314
Mass. 465, 471, 476 (1943); Dolbeare v. Bowser, 254 Mass. 57, 61
(1925); Lindsay v. Swift, 230 Mass. 407, 412 (1918); American
Circular Loom Co. v. Wilson, 198 Mass. 182, 206-207 (1908);
Sikes v. Inhabitants of Hatfield, 79 Mass. 347, 353 (1859);
Jennison v. Hapgood, 24 Mass. 1, 7–8 (1828). See also Robertson
v. Chapman, 152 U.S. 673, 681–682 (1894); Jerlyn Yacht Sales,
Inc. v. Wayne R. Roman Yacht Brokerage, 950 F.2d 60, 66-67 (1st
Cir. 1991); Estate of Casey v. Commissioner of Internal Revenue,
948 F.2d 895, 898–899 (4th Cir. 1991); Fender v. Fender, 285
S.C. 260, 262 (1985); Creasy v. Henderson, 210 Va. 744, 749-750
(1970); Restatement (Second) of Agency §§ 34, 39, 387-389, 391,
394 (1958) (Restatement).
12

UPAA has not been adopted in Massachusetts, we may look to it

for guidance on what authority a power of attorney ordinarily

includes. See Barbetti, 490 Mass. at 110.

After all, any exercise of the gifting authority in favor

of the attorneys themselves must still satisfy the rule that

"one acting in a fiduciary capacity for another has the burden

of proving that a transaction with himself was advantageous for

the person for whom he was acting" (citation omitted). Cleary

v. Cleary, 427 Mass. 286, 291 (1998). Frances plainly believed

that gifting could be to her advantage and in her interests,

provided gifts were made in accordance with the standard she

chose. The burden was still on Tony and Chris to prove that the

gifts met that standard.9

Tracey's attempts to bolster her position with additional

phrases from Gagnon are unavailing. First, she emphasizes a

reference to "[t]he sedulous application and uncompromising

rigidity of the prohibition against unauthorized fiduciary self-

9 Tracey erroneously argues that the standard falls into the
category of what the drafters of the Restatement termed "[a]ll-
embracing expressions" that should be "disregarded as
meaningless verbiage." Restatement (Second) of Agency, § 34
comment h. But the drafters were referring only to "phrases
like 'as sufficiently in all respects as we ourselves could do
personally in the premises,' [or] 'as the said agent shall deem
most advantageous.'" Id. The standard Frances chose, in
contrast, turned not just on her agent's opinion, but also on an
external standard -- the donees she may choose -- and thus
meaningfully constrained Tony's and Chris's discretion.
13

dealing." Gagnon, 39 Mass. App. Ct. at 158. But recognizing

the importance of the prohibition against "unauthorized"

fiduciary self-dealing does not by itself help us determine

whether any particular instance of fiduciary self-dealing is

unauthorized. Tracey also relies on the statement that "powers

of attorney are to be strictly construed to require explicit,

and not inferential, grants of 'dangerous' agency authority the

exercise of which is potentially destructive of the principal's

interests." Id. Again, however, Gagnon did not state that any

particular form of words is required before an expressly granted

power may be exercised in a manner benefiting the agent. And

none of the strict-construction cases cited in Gagnon, id. at

157-158, suggests that even an expressly granted power must

still be narrowly construed in order to limit self-dealing.10

Finally, the court in Gagnon tempered its interpretive

discussion with a recognition of the same principles recently

reiterated in Barbetti, 490 Mass. at 111-112. "The rule of

strict construction does not go to the extent of destroying the

purpose of the power, and the meaning of an unambiguous power of

10See Estate of Casey, 948 F.2d at 896, 900 (power "to
lease, sell, grant, convey, assign, transfer, mortgage and set
over" property did not encompass power to gift it); Williams v.
Dugan, 217 Mass. 526, 528-530 (1914) (power to manage, sell,
mortgage, and pay taxes on real estate did not encompass power
to borrow to pay such taxes); Hoyt v. Jaques, 129 Mass. 286,
287-288 (1880) (power to sell did not encompass power to
mortgage).
14

attorney is to be gleaned from the intent of the parties as

manifested by the words used and the object to be accomplished"

(quotations and citation omitted). Gagnon, 39 Mass. App. Ct. at

158 n.16. See Barbetti, supra (same). Here, Frances's clear

intent, expressed in unambiguous language, was to authorize Tony

and Chris to make gifts of her property to those persons who, in

their opinions, would be "the donees [she] may choose." If Tony

and Chris could prove that gifts to themselves met that

standard, then for a court to construe the gifting power so

strictly as to nevertheless bar such gifts -- particularly to

two of the most natural objects of Frances's affection -- would

risk "destroying the purpose of the power" (citation omitted).

Gagnon, supra. We therefore conclude that the gifting authority

in the power of attorney permitted gifts to Tony and Chris.

1. Frances's donative intent. Tracey argues that, even if

the power of attorney authorized gifts to Tony and Chris, they

failed to prove that Frances intended to make gifts to them

totaling $5.576 million. She claims that the judge's decision

is "devoid of any findings" that Frances had any such intent.

We are not persuaded.

The critical issue under the power of attorney was not

Frances's actual donative intent, but instead whether Tony and

Chris had shown that, in their opinions developed in accordance

with their fiduciary duties, Frances would have chosen to make
15

the gifts at issue. Here the judge made extensive findings,

based on testimony of Tony and Chris that the judge expressly

credited, and then concluded that Tony and Chris "met their

burden to prove that they acted in good faith and in [Frances's]

interests in making the gifts." "They demonstrated that in

their reasonable opinion[s], [Frances] would have chosen to make

the gifts and would have chosen not to make gifts to Tracey."

We now summarize those findings, none of which Tracey

specifically challenges as clearly erroneous.

The judge found that Tony and Chris discussed gifting with

Frances and an accountant sometime in or around April 2013.

Frances told Tony that she realized gifting would result in

large tax savings and that the only question was when to make

gifts. She never specified a date but consistently said that it

would be "when she got older, slowed down, and didn't need the

money." Tony "asked her who would make decisions about gifting

if she were unable to do so. She told him that he and [Chris]

would be the judge and that she trusted them."

As for who would receive gifts, Frances told Tony "that her

only concern was who was with her in her old age." The judge

credited Tony's and Chris's testimony that, in Frances's final

years, the three people in her life were themselves and Lisa,

while "Tracey was not part of [Frances's] life, and [Frances]

would not have wanted to 'reward' her."
16

As for the timing of the gifts, Tony testified that as of

July 2016, Frances had "sufficient assets to last the rest of

her life without touching the principal." Frances was then

nearly ninety-four years old and had been living with "advanced

dementia" for two and one-half years. The judge credited Tony's

and Chris's testimony that by then it was clear Frances's life

had slowed down and she would never leave the health care

facility where she lived. He further credited their testimony

that the decision to begin gifting was spurred by anticipated

changes to the tax laws after the 2016 Presidential election.

Frances "did not like paying taxes and . . . doing so ruined her

entire month each year."

As for the sizes of the gifts, the judge credited Tony's

and Chris's testimony that the amounts were based on the tax

exemptions in effect in 2016. The judge concluded that "[t]he

gifts took advantage of the annual gift tax exclusion amounts

and the unified tax credit in place at that time. There was

credible evidence that the gifts reduced the Massachusetts

estate tax paid by the estate." Indeed, Tracey's appellate

brief concedes that "the total amount gifted ultimately

maximized Frances's estate tax exemption existing at the time."

Finally, the judge credited Tony's and Chris's testimony

that they believed Frances, if she were competent, "would have

chosen to make gifts at that time," but that she no longer had
17

the capacity to make such decisions. Tony believed "the gifts

were appropriate and consistent with [Frances's] expressed

intention to make gifts when her life was winding down and to

benefit the people involved in her life." Chris understood that

"his duty was to make gifts in the way [Frances] would have done

herself" and believed that the gifts were consistent with that

standard. He believed it was to "everyone's benefit" to make

the gifts before the tax laws changed.

The judge concluded from the testimony he credited that

Tony and Chris had met their burden of proving that they acted

in good faith and in Frances's interests; and that, in their

reasonable opinions, she would have chosen to make the gifts to

Tony, Chris, and Lisa, and would have chosen not to make gifts

to Tracey. The judge's findings were more than sufficient to

support his conclusions, and we see no error in his decision.

Tracey nevertheless contends that the gifts were undertaken

for the "improper purpose" of enabling Tony and Chris to

purchase the Truro property. She claims that the gifts "did not

benefit Frances, nor comport with her intent in any way," and

thus were a breach of Tony's and Chris's fiduciary duties.

These assertions reflect nothing more than "dissatisfaction with

the judge's weighing of the evidence and his credibility

determinations." Adoption of Quentin, 424 Mass. 882, 886 n.3

(1997). They require no further discussion.
18

Tracey also argues that the judge, by "relying on Tony['s]

and Chris's self-serving statements alone to justify the gifts,"

failed to apply the "heightened scrutiny" that Tracey claims is

required by Estate of Moretti, 69 Mass. App. Ct. 642, 652

(2007). Even if the judge here had relied solely on Tony's and

Chris's testimony,11 the heightened scrutiny referred to in

Estate of Moretti consisted merely of shifting the burden to a

fiduciary to prove that a transaction from which he benefited

did not violate his fiduciary duties. Id. at 651-653, citing

Cleary, 427 Mass. at 293. The judge here applied that rule and

found that Tony and Chris met their burden. Nothing in Estate

of Moretti suggested that a fiduciary cannot meet that burden

with the fiduciary's own testimony.

1. Attorney's fees and costs. Tony, Chris, and Lisa

appeal from the judge's denial of their request for attorney's

fees and costs under G. L. c. 215, § 45 (§ 45), which allows an

award of fees and costs in contested probate cases "in the

discretion of the court . . . as justice and equity may

require." This language confers broad discretion on judges; it

11The judge also relied on the testimony of a long-time
close friend of Frances's, Ana Weatherley, that Frances heavily
relied on and trusted Tony, was estranged from Tracey and found
their relationship to be a source of great pain, and said her
"'biggest fear' was that Tracey would 'end up somehow having
control' over [Frances's] assets." Further, the judge relied on
Lisa's testimony about Frances's close relationships with Tony
and Chris and her disappointment in Tracey.
19

"certainly reaches beyond bad faith or wrongful conduct."

Estate of King, 455 Mass. 796, 805 (2010). But it "still pay[s]

homage to the usual American rule against an automatic award of

fees to the prevailing party, and require[s] a reason, grounded

in equity, why an award shifting fees should be made." Id.

"Historically, the practice has been not to award costs and fees

as a general matter in cases falling within the purview of the

statute." Id. at 803, and cases cited. "[A]n award of costs

and fees by a judge in the Probate Court under § 45 may be

presumed to be right and ordinarily ought not to be disturbed"

(quotation and citation omitted). Id. at 805. A decision not

to award costs and fees is entitled to the same deference.

Although the brief filed by Tony, Chris, and Lisa informs

us that they included a request for fees and costs in a proposed

judgment they submitted to the judge, they have not included

that proposed judgment in the record appendix, so we are unaware

whether the fee argument that they now present to us was ever

made to the judge. In any event, although the proceedings in

the trial court were protracted, hard fought, and no doubt

aroused strong emotions on both sides, we cannot agree with

Tony, Chris, and Lisa that Tracey's position was so groundless,

and her litigation conduct so unreasonable, that justice and

equity demanded an award of fees and costs against her. We

therefore do not disturb the judge's discretionary decision not
20

to make such an award, and we deny the request by Tony, Chris,

and Lisa for their attorney's fees and costs under § 45.

Judgment affirmed.