Britton v. Britton

• Decision Date: 11 May 2007
• Docket Number: No. 06-P-275.,06-P-275.
• Citation: 865 N.E.2d 1174,69 Mass. App. Ct. 23
• Parties: Mary Louise BRITTON v. Dennis L. BRITTON.
• Court: Appeals Court of Massachusetts

865 N.E.2d 1174

69 Mass. App. Ct. 23

Mary Louise BRITTON v. Dennis L. BRITTON.

No. 06-P-275.

Appeals Court of Massachusetts, Essex.

Argued February 13, 2007.

Decided May 11, 2007.

George P. Lordan, Jr., Salem, for Dennis L. Britton.

Amy L. Blake, Boston (Charlene A. Caldeira with her) for Mary Louise Britton.

Present: RAPOZA, C.J., CYPHER, & COWIN, JJ.

CYPHER, J.

Following a judgment of divorce, the husband appeals, claiming that a Probate and Family Court judge erred in failing to enforce the parties' agreement to sell the marital residence in Wenham, an agreement he argues survived the judgment of divorce. The husband also claims error in the award of alimony.

Background. The wife filed a complaint for divorce on January 2, 2004, after a twenty-three year marriage. After a twoday trial in October, 2005, the probate judge entered a judgment of divorce nisi on December 5, 2005, on the ground of irretrievable breakdown of the marriage. At that time, the couple's three children were twenty-two, twenty, and fourteen years of age. The provisions for care and education of the two younger children are not in dispute. The judge divided the total marital assets of $2,459,831 equally. The wife was assigned the equity in the marital residence of $895,000, and the husband was required to transfer all his right, title, and interest in the property to her. The wife was ordered to refinance the mortgage to remove the husband from that obligation, and to be solely responsible for all the related expenses of the property. The award of alimony was for $6,000 per month, effective June 1, 2004, until the death of either party or the wife's remarriage.

The husband filed a notice of appeal on December 30, 2005, and moved to stay the provision that he transfer his interest in the marital residence. The judge denied the motion in a written order. The husband filed another notice of appeal on January 17, 2006. He then sought a stay from a single justice of this court, which was denied on February 10, 2006. The single justice ordered the wife to provide the husband with sixty days' written notice if she intended to sell or transfer the marital residence during the pendency of the appeal.

Discussion. 1. The agreement to sell the marital residence. The agreement in issue is in the form of a stipulation, among several others, that the parties agreed to on March 22, 2004, prior to trial. The stipulation was hand printed on a court form entitled "STIPULATION OF THE PARTIES." The preprinted court form stated: "It is hereby agreed by the parties ... that the following stipulation shall be made an order or judgment of this court." Hand printed in the space provided was the following:

"3. On or before June 30, 2005, the marital home in Wenham shall either be placed on the market for sale or the wife shall buy out the husband for his 50% share of the net equity defined as the then fair market value less mortgage + closing costs. This paragraph shall be incorporated into the final judgment nisi whether by agreement or trial & Shall Survive As An Independent Contract By The Parties."¹

The husband argues that the judge erred as matter of law in not enforcing the parties' agreement, which he asserts survived the judgment of divorce, and that the terms of the agreement should have been harmonized with the judge's property division. He asks that the judgment be reversed and the case remanded for a new division of marital property, taking into account the parties' agreement.

Generally, parties may fashion an agreement that is to survive a divorce judgment. "It is the intent of the parties which controls, see Moore v. Moore, 389 Mass. 21, 24, 448 N.E.2d 1255 (1983), and that intent is determined from the whole agreement." DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231, 237, 508 N.E.2d 104 (1987). When such an agreement is to be incorporated in the judgment, and to be enforceable, it must be presented to the court, and G.L. c. 208, § 1A, inserted by St.1975, c. 698, § 2, requires the judge to make findings as to "whether or not the agreement has made proper provisions for custody, for support and maintenance, for alimony and for the disposition of marital property." See Stansel v. Stansel, 385 Mass. 510, 512-513, 432 N.E.2d 691 (1982).

Our view of the record submitted indicates that the judge was not presented with an agreement that the parties proposed should survive the judgment of divorce, and accordingly, he was not required to order the sale of the marital residence in his property division.

After the stipulation was signed on March 22, 2004, the parties prepared pretrial memoranda on April 7 and 8, neither of which referred to the stipulation. In their memoranda, the parties agreed that the value of the marital home was in dispute, and generally agreed on an equal division of assets. The wife specifically sought to retain the marital residence.

After various motions, and extensions of the trial date, the anticipated date for sale of the marital residence of June 30, 2005, passed. None of these motions directly concerned the sale, with the exception of a complaint for contempt filed by the husband on July 28, 2005, asserting that the wife failed to comply with the order to sell the marital residence. This complaint was not pursued or disposed of until after trial, which began on October 26, 2005.

There was little attention given to the marital residence during the trial.² In their proposed judgments submitted after trial, the wife proposed that the husband transfer his interest in the marital residence to her, and the husband proposed that the residence be sold pursuant to the prior stipulation. The husband also proposed that the wife be adjudged in contempt for failing to abide by the terms of the March 22, 2004, stipulation.

This record clearly shows that the parties did not pursue the presentation of their stipulation to the court as an agreement intended to survive the judgment of divorce. Moreover, the stipulation as written—"[t]his paragraph shall be incorporated into the final judgment nisi whether by agreement or trial"—appears to require some further agreement of the parties or action at trial to incorporate it into the judgment.³ "A party is ... bound by an agreement made in open court and acted on by the judge." Dalton v. Post Publishing Co., 328 Mass. 595, 599, 105 N.E.2d 385 (1952). See Dominick v. Dominick, 18 Mass.App.Ct. 85, 89 n. 2, 463 N.E.2d 564 (1984) ("stipulations made in open court by the parties or their attorneys and acted upon by the court have been held to be binding on the parties"). Here, there was neither any further agreement nor any action of the parties at trial to preserve the stipulation. Accordingly, the husband's complaint for contempt failed because there was no order to be obeyed.⁴ See Larson v. Larson, 28 Mass.App.Ct. 338, 340, 551 N.E.2d 43 (1990).

An agreement intended to survive a judgment of divorce cannot specifically be enforced without a ruling by the judge that it was "not the product of fraud or coercion, that it was fair and reasonable at the time of entry of the judgment nisi, and that the parties clearly agreed on the finality of the agreement." Knox v. Remick, 371 Mass. 433, 436-437, 358 N.E.2d 432 (1976). There was no error here.

2. Alleged error in award of alimony. Dissatisfied with what he complains is an "irrational alimony figure," the husband asserts that he is required to pay forty percent of his income to the wife as alimony, and that the judge's decision is not reflective of his ability to pay or grounded in the wife's actual...