McManus v. McManus

87 Mass.App.Ct. 864

35 N.E.3d 745

Susan F. McMANUS

v.Peter G. McMANUS.

No. 14–P–1057.

Appeals Court of Massachusetts, Middlesex.

Argued March 2, 2015.

Decided Aug. 11, 2015.

Amy J. Devaney, Newton Center, for the wife.

Kathleen P. Ryder, Dracut, for the husband.

Present: KATZMANN, MILKEY, & AGNES, JJ.

Opinion

AGNES, J.

The question presented for our review is whether a separation agreement (agreement) that merged in part and survived in part a judgment of divorce nisi, and that contains a waiver of any claim for “past or present alimony,” constitutes an agreement to waive a party's claim for alimony in the future. A judge of the Probate and Family Court concluded that it did, and he allowed the former husband's (defendant's) motion for summary judgment. We conclude that when read in its entirety, the agreement contains an omission with regard to either party's right to file a complaint for modification seeking future alimony that precludes a determination, at this stage, of the parties' intent. Accordingly, the plaintiff should have an opportunity to offer parol evidence to enable the judge to determine the intent of the parties concerning future alimony. We vacate the judgment and remand the matter for further proceedings.

Background. The essential facts are not in dispute. Both parties were represented by counsel during the divorce proceedings. A

judgment of divorce nisi entered on January 30, 2006. It provided in relevant part as follows: “It is ... ordered that the parties shall comply with the terms of an Agreement dated January 30, 2006, filed, incorporated and not merged in this Judgment which shall survive and have independent legal significance, except for provisions relating to the children, and medical insurance, which provisions shall merge and not survive.” The general rule is that unless the parties intend otherwise, a separation agreement survives a judgment of divorce that incorporates the agreement by reference. See Surabian v. Surabian, 362 Mass. 342, 345 n. 4, 285 N.E.2d 909 (1972). Under the terms of the divorce judgment, the agreement survives as a contract with independent legal significance insofar as it addresses the subject of alimony.¹ The question is whether the parties intended that the reference to alimony “past and present” to encompass future alimony as well. The intent of the parties “is determined from the whole agreement.” See Parrish v. Parrish, 30 Mass.App.Ct. 78, 83, 566 N.E.2d 103 (1991).

The agreement consists of fifteen sections and a series of six exhibits that are attached to and incorporated by reference into the agreement. At the outset, the agreement's “Statement of Facts” provides that the parties were married in 1983, that they have three children (at the time, ages twenty, sixteen, and twelve), and that the parties had been living apart since October 13, 2003. The agreement's “Statement of Purpose” recites that it is to “settle and determine” four issues: “(a) What should be paid as alimony ...; (b) What the equitable division of the marital assets should be ...; (c) What provisions should be made for the support and maintenance of the parties' minor children ...; and (d) All other matters, issues, rights, obligations and claims by and between the parties arising from the marital relationship and

which should be settled in view of the existing Complaint for Divorce.”²

Section VI of the agreement refers to the six exhibits, which address (1) custody (exhibit A); (2) alimony and child support (exhibit B); (3) medical and dental expenses (exhibit C); (4) education expenses (exhibit D); (5) life insurance expenses (exhibit E); and (6) property division (exhibit F).³ The agreement contains no language concerning future alimony obligations, providing

solely that each party “hereby waives any claim against the [other] for the receipt of past or present alimony.”

On October 1, 2013, the plaintiff filed a complaint for modification, which states in relevant part, that the plaintiff “is in need of support in the form of alimony now that the defendant intends to terminate the payment of child support.” By motion dated March 17, 2014, the defendant sought summary judgment on the plaintiff's complaint.⁴ On May 5, 2014, the judge allowed the defendant's motion, reasoning that “[w]here parties have expressly set forth that the ‘Agreement is made to settle and determine ... what should be paid as alimony ...’, the Court is entitled to infer that the agreement addressed future alimony [quoting from Cappello v. Cappello, 23 Mass.App.Ct. 941, 501 N.E.2d 535 (1986) ]”.

Discussion. Future alimony. The plaintiff argues that because the agreement contains an explicit waiver of either party's right to a claim for “past and present” alimony, and is silent with regard to any future alimony obligations, the issue of whether the parties intended to address the potential for future alimony is a question of material fact that precludes the allowance of summary judgment. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779, 761 N.E.2d 946 (2002) (where terms of contract “are ambiguous, uncertain, or equivocal in meaning, the intent of the parties is a question of fact to be determined at trial”).

“The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass.R.Dom.Rel.P. 56(h). In interpreting a surviving or partially surviving separation agreement, the rule is that “a judge should respect ‘the desire of the parties to determine their own destinies.’ ” Bercume v. Bercume, 428 Mass. 635, 644, 704 N.E.2d 177 (1999), quoting from Moore v. Moore, 389 Mass. 21, 24, 448 N.E.2d 1255 (1983). In particular, “[w]e must construe the [separation] agreement in a manner that ‘appears to be in accord with justice and common sense and the probable intention of the parties ... [in order to] accomplish an

honest and straightforward end [and to avoid], if possible, any construction of a contract that is unreasonable or inequitable.’ ” Krapf v. Krapf, 439 Mass. 97, 105, 786 N.E.2d 318 (2003), quoting from Clark v. State St. Trust Co., 270 Mass. 140, 153, 169 N.E. 897 (1930). However, whether a separation agreement is ambiguous is a question of law, and we review the issue de novo. Lalchandani v. Roddy, 86 Mass.App.Ct. 819, 823, 22 N.E.3d 166 (2015).

Here, we cannot say that the agreement permits a judge to determine the intent of the parties with respect to future alimony simply by reference to the terms used by the parties. The issue of the intent of the parties regarding future alimony obligations is therefore a question of material fact that cannot be resolved on a motion for summary judgment at this stage. See Pierce v. Pierce, 455 Mass. 286, 305, 916 N.E.2d 330 (2009) (where language of separation agreement is “not so clear and unequivocal as to permit the judge” to determine intent of parties, parol evidence is admissible to explain parties' intent).⁵

Massachusetts case law indicates that parties express their mutual agreement to waive any and all claims for alimony in separation agreements by using the phrase “past, present, and future.” See, e.g., Fabrizio v. Fabrizio, 316 Mass. 343, 345, 55 N.E.2d 604 (1944) ; Taylor v. Gowetz, 339 Mass. 294, 296, 158 N.E.2d 677 (1959) ; O'Brien v. O'Brien, 416 Mass. 477, 480, 623 N.E.2d 485 (1993) ; Mills v. Mills, 4 Mass.App.Ct. 273, 274 n. 2, 345 N.E.2d 915 (1976) ; Becker v. Phelps, 86 Mass.App.Ct. 169, 170 n. 2, 15 N.E.3d 764 (2014). Compare Buckley v. Buckley, 42 Mass.App.Ct. 716, 720, 679 N.E.2d 596 (1997) (parties' separation agreement expressly reserved whether alimony would be paid in future); Vedensky v. Vedensky, 86 Mass.App.Ct. 768, 22 N.E.3d 951 (2014) (separation agreement contained reservation of rights as to future alimony). The agreement here is silent regarding the payment of alimony in the future. A reading of the agreement in its entirety does not resolve the ambiguity.⁶

“[W]here a contract is so expressed as to leave its meaning obscure, uncertain or doubtful, evidence of the circumstances and conditions under which it was entered into are admissible, not to contradict, enlarge or vary its terms by parol, but for the purpose of ascertaining the true meaning of its language as used by the parties.” Waldstein v. Dooskin, 220 Mass. 232, 235, 107 N.E. 927 (1915). See Robert Indus., Inc. v. Spence, 362 Mass. 751, 753–754, 291 N.E.2d 407 (1973) (“When the written agreement, as applied to the subject matter, is in any respect uncertain or equivocal in meaning, all the circumstances of the parties leading to its execution may be shown for the purpose of elucidating, but not of contradicting or changing its terms”). We conclude that the separation agreement is “ambiguous, uncertain, [and] equivocal” with regard to whether a party is free to request future alimony, and therefore “the intent of the parties is a question of fact to be determined [by the fact finder].” Seaco Ins. Co. v. Barbosa, 435 Mass. at 779, 761 N.E.2d 946. See 11 Lord, Williston on Contracts § 30:7 (4th ed. 2012).⁷

In concluding that the defendant's motion for summary judgment should be allowed, the probate judge erroneously relied on Cappello v. Cappello, supra, to infer that, viewing the evidence in the light most favorable to the plaintiff, the parties intended to address in the agreement their future alimony obligations. The court in Cappello did not conclude that the language of the separation agreement at issue barred a hearing under G.L. c. 208, § 34, to determine whether there should be an award of alimony; instead, the court concluded that in the circumstances presented, the party seeking the hearing on the issue “failed to allege any change of circumstances which would warrant a hearing on the issue.” 23...