DeCristofaro v. DeCristofaro

• Decision Date: 30 July 1987
• Citation: 508 N.E.2d 104,24 Mass.App.Ct. 231
• Parties: Mary G. DeCRISTOFARO v. Clement P. DeCRISTOFARO.
• Court: Appeals Court of Massachusetts

Page 104

508 N.E.2d 104

24 Mass.App.Ct. 231

Mary G. DeCRISTOFARO v. Clement P. DeCRISTOFARO.

Appeals Court of Massachusetts Middlesex.

Argued Dec. 11, 1986.

Decided May 27, 1987.

Further Appellate Review Denied July 30, 1987.

Robert J. Annese, Arlington, for plaintiff.

Allan R. Curhan (Richard J. Shea, Boston, with him), for defendant.

Before BROWN, QUIRICO and WARNER, JJ.

WARNER, Justice.

By a judgment of divorce nisi (which became absolute on August 4, 1977), the plaintiff (wife) was awarded custody of the parties' two minor children, and the parties were ordered to comply with the terms of a separation agreement which, in accordance with its terms, was "incorporated and merged" into the judgment. The agreement provided, among other things, for the payment by the defendant (husband) of support ¹ and certain of the college expenses ² of the children.

On April 18, 1978, the wife filed a complaint for modification seeking an increase in child support from $200 per week to $300. In his answer, the husband raised the separation agreement as a bar. The parties settled that action, however, by a stipulation (which was "incorporated and merged" into a judgment of modification) providing for an increase in weekly child support to $250. On October 12, 1979, the husband filed a complaint for modification asking that the support order be reduced to the original $200 weekly. That should be done, he said, because the $50 increase was to enable the wife to place the younger child in day care, and this was no longer necessary. Again, the parties reached agreement that the order be reduced to $200 weekly, and their written agreement was "incorporated and merged" into a judgment of modification.

The disputes which are the subjects of this appeal began on April 18, 1985, when the wife filed a complaint for modification, later amended, asking that the husband be ordered to pay (1) $400 weekly as child support, (2) the medical and dental expenses for each child until the child becomes self-supporting, and (3) the educational expenses of four years of college for each child. The amended complaint alleged that the older child had reached eighteen years of age, that the husband had ceased paying medical expenses and support ($100) for that child, that the husband's income had increased since the date of the original and modified judgments of divorce, and that the needs of the children had increased. On June 5, 1985, a Probate Court judge entered a temporary order increasing the weekly support order to $250 until the older child entered college, when the order would be reduced to $200, and ordering the husband to pay all the reasonable college expenses of the older child. In his subsequent amended answer and counterclaim, the husband denied that there had been a material change in circumstances, alleged that the separation agreement survived the judgments of divorce and modifications and asked for an order "indemnifying" him for increased payments under the temporary order of June 5, 1985, and for an award of counsel fees. The husband also filed a complaint for contempt alleging that, by filing the complaint for modification on April 18, 1985, and obtaining the temporary order, the wife had violated the judgment of February 4, 1977, ordering the parties to comply with the separation agreement.

After consolidation of the cases and trial, a Probate Court judge made findings of fact and conclusions of law and ordered that (1) the wife's complaint for modification be dismissed; (2) the husband's complaint for contempt be dismissed; and (3) the husband receive "credit" on his counterclaim only for amounts which he paid after December 11, 1985 (the last day of trial), in excess of those called for in the separation agreement. The judge further ordered that the husband not seek in any other proceedings to recoup excess payments made under the temporary order from June 5, 1985, to December 11, 1985, or any costs incurred in the current litigation. ³ Neither party was awarded counsel fees or costs. Lastly, the judge ordered the parties to comply with the terms of the separation agreement. Both parties have appealed. ⁴ The wife claims error in the dismissal of her complaint for modification as, she argues, there had been a material change of circumstances, and in the denial of an award of counsel fees. The husband contends that there was error in the dismissal of his complaint for contempt, in the orders on his counterclaim that he not recoup overpayments in child support in another proceeding, and in the refusal to award him counsel fees.

1. The status of the separation agreement. The judge concluded, on the basis of the terms of the agreement itself, that it was the intent of the parties that the agreement survive the judgment of divorce. ⁵ Applying a test suggested in Knox v. Remick, 371 Mass. 433, 437-438, 358 N.E.2d 432 (1976), the judge concluded that, while there had been a substantial change in circumstances, the wife had not sustained her burden of showing that "the level of available support for the child is inadequate in the circumstances because one former spouse [here, the wife] is incapable of meeting ... her obligation for child support expressed in [the separation] agreement." Id., at 438, 358 N.E.2d 432. ⁶ We first consider the relevant consequences which flow from the survival or the extinction of a separation agreement. If an agreement does not survive a judgment of divorce, that is, if it is merged in the judgment in the technical sense, the agreement loses its identity; it retains no independent legal significance apart from the judgment. See Knox v. Remick, supra, 371 Mass. at 435, 358 N.E.2d 432; Stansel v. Stansel, 385 Mass. 510, 513, 432 N.E.2d 691 (1982); Gottsegen v. Gottsegen, 397 Mass. 617, 619, 492 N.E.2d 1133 (1986). In that event, modification of the judgment of divorce is governed by the usual rule which requires a showing of a material change of circumstances. See Stansel v. Stansel, supra, 385 Mass. at 515, 432 N.E.2d 691; Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 12-13, 411 N.E.2d 1305 (1980).

Where a separation agreement is incorporated in a divorce judgment but survives it and retains its force as an independent contract, the agreement is not an absolute bar to subsequent modification of the judgment. See Ryan v. Ryan, 371 Mass. 430, 432, 358 N.E.2d 431 (1976); Knox v. Remick, supra, 371 Mass. at 435-436, 358 N.E.2d 432. "Where, however, [as here] the parties have entered into a separation agreement that was fair and reasonable when the judgment of divorce entered, was not the product of fraud or coercion, and survives the judgment of divorce, something more than a 'material change of circumstances' must be shown before a judge of the Probate Court is justified in refusing specific enforcement of that agreement" (footnote omitted). Stansel v. Stansel, supra, 385 Mass. at 515, 432 N.E.2d 691. See Knox v. Remick, supra, 371 Mass. at 436-437, 358 N.E.2d 432. In the case of an agreement with respect to interspousal support, "something more" has been characterized as "countervailing equities," such as where one spouse "is or will become a public charge," where there has been failure to comply with the agreement, or where there are equally compelling reasons. Knox v. Remick, supra. Stansel v. Stansel, supra, 385 Mass. at 515-516, 432 N.E.2d 691. In those circumstances, a Probate Court judge may order payment in excess of that called for in the agreement. Knox v. Remick, supra, 371 Mass. at 435-437, 358 N.E.2d 432. We are concerned here only with the provisions of a separation agreement with respect to the support of children. "An agreement to fix a spouse's support obligation for minor children stands on a different footing. Parents may not bargain away the rights of their children to support from either one of them. However, an informed agreement made by the parents, allocating responsibility for support of a minor child, should be upheld as far as possible as between the contracting parties, assuming the agreement is free from fraud and coercion and was fair and reasonable at the time the divorce judgment was entered. But a Probate Court support order may recast the burden of support for a child, as expressed in a separation agreement, for example, where (a) a support order would be entered or modified, as the case may be, in the absence of such an agreement and (b) the level of available support for the child is inadequate in the circumstances because one former spouse is incapable financially of meeting his or her obligation for child support expressed in that agreement" ⁷ (citations omitted, emphasis supplied). Knox v. Remick, supra, 371 Mass. at 437-438, 358 N.E.2d 432. Even where a judge of the Probate Court properly refuses specific performance and orders support (whether interspousal or child support) different from that called for in the agreement, the party aggrieved by that order has a claim for breach of contract. Id., at 435-438, 358 N.E.2d 432, and cases cited. Cf. Ratchford v. Ratchford, 397 Mass. 114, 489 N.E.2d 1015 (1986).

We next consider the propriety of the judge's conclusion that the parties intended the separation agreement to survive the judgment of divorce. 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. See Freeman v. Sieve, 323 Mass. 652, 655-656, 84 N.E.2d 16 (1949); Hills v. Shearer, 355 Mass. 405, 408-409, 245 N.E.2d 253 (1969); Pavluvcik v. Sullivan, 22 Mass.App.Ct. 581, 584, 495 N.E.2d 869 (1986). Further, we examine indicia of intent in light of established public policy. "The Commonwealth's strong policy has favored survival of separation agreements, even when such an intent of the parties is merely implied (citations omitted). We have noted that 'it is not lightly to be presumed that a decree, ephemeral in that it could be...