Bercume v. Bercume

• Decision Date: 12 January 1999
• Citation: Bercume v. Bercume, 704 N.E.2d 177, 428 Mass. 635 (Mass. 1999)
• Parties: Carol BERCUME v. Ronald R. BERCUME.
• Court: Supreme Judicial Court of Massachusetts

Page 177

704 N.E.2d 177

428 Mass. 635

Carol BERCUME v. Ronald R. BERCUME.

Supreme Judicial Court of Massachusetts Worcester.

Argued Oct. 5, 1998.

Decided Jan. 12, 1999.

Paul M. Sushchyk, Sterling, for Carol Bercume.

Wendy H. Sibbison, Greenfield, for Ronald R. Bercume.

Present (Sitting at Greenfield): WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

Ronald Bercume (Ronald) appeals from a judgment of modification entered by a judge in the Probate and Family Court ordering him to pay weekly alimony of $140 to his former wife, Carol Bercume (Carol). ¹ At the time of their divorce sixteen years earlier, the parties signed a separation agreement (agreement) whereby both waived any claim of alimony "now and forever." The agreement also provided that, if found by the court to be proper, it would be "incorporated merged into and made a part of [this] judgment." ² The judgment so provided.

Represented by new counsel on appeal, Ronald now argues that the Probate Court lacked jurisdiction to award Carol alimony because the language of the agreement demonstrated the parties' intent that it survive the judgment as an independent contract not modifiable by the Probate Court. He also argues that the judgment is jurisdictionally "defective" because alimony was awarded to Carol without consideration of the statutory factors required by G.L. c. 208, § 34. ³ In the alternative, he argues that the judge's findings do not support his conclusion that Carol proved a material change in circumstances as required by G.L. c. 208, § 37. ⁴ We granted Ronald's application for direct appellate review. We reject Ronald's jurisdictional claims, and remand the case to the Probate Court for further proceedings consistent with this opinion.

1. Background facts. Carol was seventeen years old when she married Ronald in 1965. They had three children over the course of their seventeen year marriage. During the marriage, Carol, who never finished high school, did not work outside the home or attend school. The parties were divorced in March, 1982, at which time Carol was thirty-four years old and the children were fourteen years, thirteen years and five years old, respectively. ⁵

Carol was awarded physical custody of the three children, and they all resided with her until each in turn was emancipated. Ronald paid Carol $150 each week for child support. Carol also sought work outside the home for the first time; she has since been employed full time. The couple's youngest child was emancipated in 1997, at which time, as provided in the agreement, Ronald terminated all child support payments to Carol. ⁶

In March, 1996, fourteen years after the divorce, Carol filed a complaint for modification seeking alimony from Ronald. The judge found that, because Carol had raised the three children while employed full time and could not afford the cost, she had been unable to further her education or increase her earning potential significantly. Her employment had been limited to unskilled or semi-skilled jobs, with little room for advancement. At the time of trial, Carol had no assets and earned a net weekly income of $227, but was receiving less than that amount because she was temporarily disabled and receiving disability benefits. There was testimony that Ronald remarried in 1985 and that he has a daughter with his current wife. The judge found that, after the divorce, Ronald had been able to devote all of his time to the growth and success of his business as a builder while Carol was charged with the task of raising the parties' three children. He found that Ronald is now on a secure financial footing: his net weekly income is $627 and he has assets totaling approximately $700,000, for the most part unencumbered. The judge concluded that Carol is in need of spousal support, and that Ronald has the ability to pay her $140 each week in alimony, with a minimal impact on his present standard of living. He ruled that there has been a material change in the circumstances of the parties warranting a modification of the original judgment.

2. Status of the separation agreement. Ronald's claim that the Probate Court lacked jurisdiction to award Carol alimony because, in his view, the parties intended their agreement to survive the judgment is meritless. The existence of an independent, enforceable agreement does not deprive the Probate Court of jurisdiction to modify its own judgment. See Stansel v. Stansel, 385 Mass. 510, 512, 432 N.E.2d 691 (1982) (jurisdiction of Probate Court to modify support orders not restricted by surviving agreement between husband and wife purporting to fix support obligations); Feakes v. Bozyczko, 373 Mass. 633, 634-635 n. 2, 369 N.E.2d 978 (1977) (requirement that Probate Court give full effect to intention of parties as expressed in separation agreement does not limit court's power to modify subsequent divorce decree); Ryan v. Ryan, 371 Mass. 430, 432, 358 N.E.2d 431 (1976) (power of Probate Court to modify its support orders may not be restricted by agreement between husband and wife purporting to fix "for all time" amount of husband's support obligation); Wilson v. Caswell, 272 Mass. 297, 302, 172 N.E. 251 (1930) (parties "cannot by contract deprive the Probate Court of jurisdiction to modify a decree of alimony"). A surviving agreement may prompt a judge "in his discretion" not to modify an order, Knox v. Remick, 371 Mass. 433, 435, 358 N.E.2d 432 (1976); it is not a jurisdictional bar to the action.

We consider next his claim that the agreement survived the judgment. It has long been the law of this Commonwealth that "[a]greements made while parties are separated may provide for the agreement's termination or continuation after a decree nisi is entered." Surabian v. Surabian, 362 Mass. 342, 345, 285 N.E.2d 909 (1972). Ronald argues that, notwithstanding the merger provision contained in art. VIII(F) of the agreement, see note 2, supra, the agreement is "silent" on whether it is to survive as an independent contract, and that other language of the agreement demonstrates that Carol and Ronald intended that it should survive. Ronald points in particular to three provisions of the agreement: art. I provides that the agreement is "made in order to settle finally and completely all claims of each party against the other" ⁷; art. III provides that "[e]ach of the parties hereby waive [sic ] now and forever any claim of alimony against the other"; and art. VIII provides that the parties release all claims against each other. ⁸ As to the merger provision, Ronald argues (for the first time on appeal) that it is not "dispositive" of the parties' intent, relying on DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231, 237-239 & n. 10, 508 N.E.2d 104 (1987).

The case was not presented or tried on this theory. The judgment of divorce nisi provides that the agreement "shall be incorporated, merged into and made a part of the judgment." There is nothing in the record to suggest that Ronald ever objected to the form of the judgment. He filed an answer to Carol's complaint for modification admitting that the judgment incorporated and merged the separation agreement, but denying Carol's claim that she was unable to support herself on her full-time earnings. Cf. Parrish v. Parrish, 30 Mass.App.Ct. 78, 79-80, 566 N.E.2d 103 (1991) (despite provision in separation agreement that it would merge with judgment, wife alleged that agreement intended by parties to survive divorce judgment and husband alleged that agreement ceased to have any independent legal significance); Mansur v. Clark, 25 Mass.App.Ct. 618, 619, 521 N.E.2d 759 (1988) (wife pleaded separation agreement as bar to modification); DeCristofaro, supra at 233, 508 N.E.2d 104 (in response to complaint for modification husband denied material change of circumstances and alleged that separation agreement at issue survived judgments of divorce and modifications). At the commencement of the trial, Carol's attorney explained to the judge that Carol was seeking to "modify the judgment on the divorce nisi ... by awarding her a reasonable amount of spousal support, alimony, for her support and maintenance." ⁹ Ronald's counsel did not challenge that characterization of the hearing, and he waived making an opening statement. The separation agreement was not entered in evidence, ¹⁰ and Ronald made no claim that it was the parties' intent that it survive the judgment: ¹¹ he offered no testimony concerning the intent of the parties. In a posttrial memorandum Ronald repeatedly acknowledged that the separation agreement had merged with the judgment, and advanced a theory that the judgment of divorce was modifiable, but only on a showing of "something more than a material change in circumstances" or if Carol could establish "countervailing equities, which have been generally interpreted to mean that [she] would ... become a public charge," citing O'Brien v. O'Brien, 416 Mass. 477, 623 N.E.2d 485 (1993), and Knox v. Remick, 371 Mass. 433, 358 N.E.2d 432 (1976). ¹² The appeal, therefore, should proceed on the same theory. Kagan v. Levenson, 334 Mass. 100, 106, 134 N.E.2d 415 (1956) (theory of law on which case is tried cannot be disregarded when appellate court looks at acts of trial judge); Santa Maria v. Trotto, 297 Mass. 442, 447, 9 N.E.2d 540 (1937) (same). See Freedman v. Freedman, 29 Mass.App.Ct. 154, 155-156, 557 N.E.2d 1386 (1990); Larson v. Larson, 28 Mass.App.Ct. 338, 341, 551 N.E.2d 43 (1990).

Although what we have said is sufficient to dispose of Ronald's claim, we think it appropriate to comment further on one aspect of his argument because the subject arises frequently before the judges of the Probate Court of the Commonwealth and is the subject of continuing confusion. See DeCristofaro v. DeCristofaro, supra at 239 n. 10, 508 N.E.2d 104 ("The question of merger or survival is of great importance in many situations. Confusion apparently...