Ames v. Perry, 5063

• Decision Date: 12 December 1989
• Docket Number: No. 5063,5063
• Citation: 406 Mass. 236,547 N.E.2d 309
• Parties: Rebecca L. AMES v. Samuel D. PERRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 309

547 N.E.2d 309

406 Mass. 236

Rebecca L. AMES v. Samuel D. PERRY.

No. 5063.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Oct. 4, 1989.

Decided Dec. 12, 1989.

Weld Henshaw, Boston, for plaintiff.

Roberta F. Benjamin, Cambridge, for defendant.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

On May 21, 1982, the marriage of the parties was terminated by a judgment of divorce. In connection with the divorce, they executed a separation agreement (dated March 5, 1982) which survived the judgment as an independent and binding contract. The agreement contained provisions relative to the custody and support of the parties' daughter, Elizabeth (nicknamed "Lisa"), born April 4, 1973.

On November 17, 1987, the plaintiff brought a complaint for modification against the defendant in the Probate and Family Court seeking more child support than was provided for in the separation agreement. The gravamen of the plaintiff's complaint was that she had remarried and had a second child, that she was at home and not working, and that the defendant had improved his financial circumstances so that he should provide more by way of child support.

A judge in the Probate and Family Court held an evidentiary hearing on the plaintiff's complaint and made findings of fact and conclusions of law. Judgment entered dismissing the complaint for modification. The plaintiff has appealed. ¹ We granted the plaintiff's application for direct appellate review. We affirm.

The following facts are drawn from the judge's findings and the record. In 1982 at the time of the execution of the separation agreement, the plaintiff had received a master's degree in business administration and was earning in the "mid to high" $20,000 range with a consulting firm. She was repaying an education loan and had no assets. At that time, the defendant worked at a brokerage firm and earned between $30,000 and $40,000. His assets consisted primarily of family-owned or controlled real estate and business interests which had preexisted the marriage. The defendant's family was considered "moderately well-to-do," and it was known to the plaintiff that he had expectancy interests.

Lisa resided primarily with the defendant during the initial period of separation. However, under the custody provisions of the separation agreement, Lisa's time with each parent was to be shared equally, "insofar as that [was] pragmatically feasible and in the best interests of the Child." The pertinent text of the custody provision, which was agreed to by the parties after they had received the benefit of legal representation, is set forth below. ²

The agreement expressly did not provide for child support payments from one parent to the other, stating instead that "[e]ach party agrees to contribute to the care, support, and maintenance of the minor Child when she is residing with that party." However, the defendant was required to pay all Lisa's medical and dental expenses, to provide for her college education, and to establish a clothing fund of $50 per month for her use. Although it was disputed, the judge found that the defendant is in compliance with all his obligations under the agreement.

During the seven years that the separation agreement has been in effect, the parties have shared physical custody of Lisa, who has generally resided with each parent for alternating two-week periods. Occasionally, Lisa has spent more time with one parent than with the other; for example, during the plaintiff's pregnancy with her second child, Lisa resided primarily with the defendant. In February, 1988, Lisa chose to reside principally with the plaintiff.

About five years ago, the plaintiff married Oliver Ames. Ames (who is divorced and has annual alimony and support obligations of about $36,000 to his first wife and three children) had a gross income in 1987 of $178,020. The plaintiff left her job about three years ago when she and Ames had a child. She presently is supported by Ames and has no plans to return to work. Her assets approximate $170,000, and consist primarily of her interest in the present marital home.

The defendant remarried in January, 1988, and has a child by his second marriage. His wife is not employed and had no assets at the time of trial. The defendant's present income is approximately $133,000. His assets also have substantially increased through an inheritance, participation in a profit-sharing plan, and appreciation of real estate interests.

Over the six-year period preceding trial, the defendant has voluntarily assumed payment of the cost of Lisa's private school tuition (approximately $12,000 a year). He also has established various investment and savings accounts for Lisa which have a value in excess of $100,000. He pays the taxes generated on the income from these accounts, which is reinvested. About $78,000 in additional funds have been allocated to Lisa from the defendant's mother. These funds are held by the plaintiff under the Uniform Gifts to Minors Act, and the investments are managed by her. The plaintiff indicated that she has spent $4,600 of the funds to pay expenses for Lisa and has paid an additional $12,000 from the account to pay part of her lawyer's fee in this litigation.

The judge concluded in substance that the plaintiff had failed to show "something more than a 'material change' " of circumstances, and, as a result, was not entitled to modification.

The plaintiff focuses on the language in the judge's memorandum indicating that she had not shown "something more than a 'material change' " of circumstances. The plaintiff argues that this standard (which the judge quoted from Stansel v. Stansel, 385 Mass. 510, 515, 432 N.E.2d 691 [1982], and DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231, 236, 508 N.E.2d 104 n. 7 [1987] ), amounts to a misapplication of the standard set forth in the governing case of Knox v. Remick, 371 Mass. 433, 358 N.E.2d 432 (1976). She argues that the "something more" test should be applied only to complaints seeking to modify interspousal support provisions in independent separation agreements and, consequently, that the test should have no application whatsoever to modification complaints concerning child support issues. The latter, in the plaintiff's view, should be governed solely by the standard set forth in G.L. c. 208, § 28, and case law applying that statute. ³

In Knox v. Remick, supra at 436-437, 358 N.E.2d 432, we first addressed the issue of the modification of interspousal support provisions in separation agreements that survive divorce judgments. We stated that a separation agreement fixing the amount of interspousal support, which was free from fraud and coercion and fair and reasonable at the time the divorce judgment was entered, "should be specifically enforced, absent countervailing equities." We then adduced examples of equities that might serve to counteract specific enforcement, Knox v. Remick, supra at 437, 358 N.E.2d 432, including, but not limited to, circumstances where one spouse is or will become a public charge or where the plaintiff has not complied with some other provision in the agreement. Id.

We went on in Knox v. Remick to discuss the issue of the modification of child support provisions in a separation agreement that survives the divorce judgment. We stated that an agreement to fix child support obligations "stands on a different footing" from an agreement to fix interspousal support. Knox v. Remick, supra at 437, 358 N.E.2d 432. We also provided an example of when specific enforcement might be denied to the child support provisions of an agreement. That example involved circumstances where a support order would be entered or modified in the absence of such an agreement and where the level of available support for the child has become inadequate because one former spouse is incapable of meeting his or her financial obligations. Id. at 437-438, 358 N.E.2d 432. The conclusion of our discussion in Knox v. Remick, supra at 437, 358 N.E.2d 432, made clear, however, that we had in mind specific...