Dominick v. Dominick

• Decision Date: 27 June 1984
• Citation: 463 N.E.2d 564,18 Mass.App.Ct. 85
• Parties: Bonnie T. DOMINICK v. Andrew A. DOMINICK.
• Court: Appeals Court of Massachusetts

Page 564

463 N.E.2d 564

18 Mass.App.Ct. 85

Bonnie T. DOMINICK v. Andrew A. DOMINICK.

Appeals Court of Massachusetts Essex.

Argued Nov. 16, 1983.

Decided May 3, 1984.

Further Appellate Review Denied June 27, 1984.

Richard D. Clarey, Boston (George C. Deptula, Boston, with him), for Bonnie T. Dominick.

David M. Wright, Boston (Jacob M. Atwood and David E. Cherny, Boston, with him), for Andrew A. Dominick.

Before ARMSTRONG, KASS and WARNER, JJ.

WARNER, Justice.

Cleared of the underbrush, this case presents for the first time in Massachusetts the questions whether and in what circumstances (1) a detailed oral marital separation agreement read into the record, with the express intention of the parties that the agreement be reduced to writing and signed, is binding absent a formal signed agreement, and (2) if such an oral agreement is binding, a party may recant before the entry of a judgment of divorce nisi which incorporates the terms of that agreement.

The trial of the parties' cross complaints for divorce began on Thursday, May 20, 1982, and was suspended in the afternoon on the request of counsel for both parties that they be allowed to conduct settlement negotiations. Discussions proceeded over the next few days between counsel and between experts retained by each party to value certain closely held entities and real estate. On May 25, 1982, counsel reported a settlement to the judge, and counsel for the husband asked that both counsel be allowed to participate in reading into the record "the bare bones" of an agreement which "we would like to incorporate in a formal agreement at a later stage but, nevertheless, to read the basic understandings into the record." There followed a detailed recitation of the parties' agreement, made with the assistance of a draft, which dealt with the transfer and retention of all of the marital assets, alimony, child support (including costs of education through college), custody, visitation and miscellaneous matters. The parties were present when the agreement was read into the record, and thereafter the judge conducted the colloquy which is set out in the margin. ¹ The judge then heard evidence on the ground for divorce (irretrievable breakdown of the marriage under G.L. c. 208, § 1B) and invited the parties to submit a formal agreement for incorporation in the judgments of divorce nisi. Within about a month the wife repudiated the oral settlement agreement and retained new counsel. On July 9, 1982, the judge denied the wife's motion to reopen the proceedings, the grounds of which will be discussed below, and granted the husband's motions for the entry of judgment. On July 12, 1982, judgments of divorce nisi were entered for each party, incorporating, as the agreement of the parties, precisely the terms of the oral agreement read into the record on May 25, 1982. The wife's motions for a new trial and for relief from the judgments (Mass.R.Dom.Rel.P. 59[a] & 60[b] [1975] ) were denied on August 9, 1982. The wife appeals from the denial of her motion to reopen the proceedings, the judgments, the denial of her post judgment motions, and a judgment of contempt.

1. The effect of the oral agreement. The agreement of the parties was reached after lengthy and apparently intensive negotiations. Experts retained by each party conferred and arrived at valuations for the closely held entities and the real estate. Counsel for the husband prepared a draft of an agreement which was reviewed with counsel for the wife. After further negotiations, some changes were made in the draft. It was this amended draft which was used as the basis for the agreement which was read into the record by counsel. Despite the characterization of that agreement as the "bare bones" and the "basic understandings" by counsel for the husband, it contained all of the essential elements, in unusual detail undoubtedly because counsel was using the draft, of a marital separation agreement appropriate to the circumstances of the parties. The parties heard the agreement read and, in response to the clear questions of the judge, indicated that they entered the agreement freely, that it was not the product of fraud, that each had full knowledge of the assets and liabilities of the other, that each had been advised by counsel as to the meaning of the "individual clauses" and that each was satisfied with the agreement. When the wife indicated some hesitancy about possible omissions, the judge told her that "this is the moment of truth" and that "everything has to come to an end at one time and before it comes to an end, we like to have all bases covered." The wife stated her understanding of that concept and pressed the point no further. In referring to the contemplated "formal written agreement," the judge told the parties that it would include all that had been dictated into the record and "standard clauses which lawyers frequently refer to as boiler plate." The parties indicated their understanding of the term "boiler plate."

We conclude that, at this stage of the proceedings, in the particular circumstances presented, the agreement read into the record was binding on the parties. See Burke v. Burke, 204 Md. 637, 646-647, 106 A.2d 59 (1953); Schlemm v. Schlemm, 31 N.J. 557, 582-584, 158 A.2d 508 (1960); Eisenson v. Eisenson, 158 Colo. 394, 398-399, 407 P.2d 20 (1965); O'Benar v. O'Benar, 410 S.W.2d 214, 217 (Tex.Civ.App.1966); Zachry v. Zachry, 185 Neb. 336, 342-343, 175 N.W.2d 616 (1970); Markwardt v. Markwardt, 617 S.W.2d 461, 462-463 (Mo.App.1981). See also 2 Lindey, Separation Agreements and Antenuptial Contracts § 36, at 36-24 to 36-26 (1964 & 1983 Supp.); Grumbles v. Grumbles, 238 Ark. 355, 356-357, 381 N.W.2d 750 (1964); Keeney v. Keeney, 374 Mich. 660, 662-663, 133 N.W.2d 199 (1965); Liles v. Liles, 272 S.C. 511, 512-513, 252 S.E.2d 886 (1979); Mathews v. Mathews, 244 Ga. 757, 757-758, 262 S.E.2d 69 (1979); Thomas v. Thomas, 5 Ohio App.3d 94, 97-99, 449 N.E.2d 478 (1982). Cf. Klaeveman v. Klaeveman, 300 S.W.2d 205, 209-212 (Tex.Civ.App.1957); Cooke v. Cooke, 126 So.2d 160, 162 (Fla.App.1961); Crawford v. Crawford, 39 Ill.App.3d 457, 461-463, 350 N.E.2d 103 (1976); Conrad v. Conrad, 92 Wis.2d 407, 414-419, 284 N.W.2d 674 (1979); Wallace v. Wallace, 1 Haw.App. 315, 322, 619 P.2d 511 (1980). ² Although it would have been preferable had the judge made a finding that the agreement was fair and reasonable, he was, in accepting the agreement at this point, entitled to rely on the representations of experienced domestic relations counsel, the fact that each party had been advised by experts in the valuation of marital assets, the answers of the parties to the questions put by the judge, and the comprehensiveness of the agreement, to which no addition of substance was contemplated in the subsequent written agreement. ³

2. The motion to reopen the proceedings. On June 25, 1982, the husband filed motions for the entry of judgment in the cross actions for divorce in accordance with the agreement of May 25, 1982. On July 7, 1982, trial counsel for the wife was allowed to withdraw for the reason that the wife had repudiated the May 25, 1982, agreement. New counsel for the wife appeared on July 7, 1982, and on July 9, 1982, filed a motion to reopen the proceedings. The three motions were heard together on the latter date; the husband's motions were allowed, and the wife's motion was denied.

The question whether to allow the motion to reopen the proceedings was within the discretion of the trial judge. See Kerr v. Palmieri, 325 Mass. 554, 557, 91 N.E.2d 754 (1950). ⁴ The only argument that the wife advances on appeal (see Mass.R.A.P. 16[a], as amended, 367 Mass. 921 [1975] ) is that the judge abused his discretion in not reopening the proceedings in the face of the wife's allegations that the experts consulted during the settlement negotiations had made a major error in the valuation of business entities owned by the parties. In support of the motion the wife's counsel made general representations to the judge that he would produce a new expert who would testify that the original experts had used an improper method of valuing these entities, with the result that they were undervalued by one million dollars. The judge denied the motion, noting that the wife did not allege "fraud, misrepresentation or deceit" in connection with the settlement agreement, that before accepting the agreement he had conducted a colloquy (see note 1, supra) in which the wife indicated her full understanding of the underlying facts and the essential elements of the agreement and that she entered into it without coercion, that she understood the finality of the agreement, and that expert opinions regarding the value of assets such as those in question often vary widely. The wife's counsel then made an "offer of proof" which included a written report of the wife's new expert which concluded that "[u]nfortunately, our Courts reject a speculation on future economic conditions, in most cases," and recommended that the wife seek a division of the entities in question into a "tenancy in common." There was nothing in the report to undermine the valuations established by the experts for both parties beyond the expression, acknowledged to be speculative, that future economic conditions would result in an increase in the value of the entities. There was no abuse of discretion in the denial of the motion to reopen the proceedings.

3. The judgments of divorce nisi. We hold that in the circumstances it was error to enter the judgments of divorce nisi incorporating the oral agreement of the parties and directing that the agreement should survive the entry of the judgments, without first finding that the agreement was fair and reasonable. Separation agreements which fix the mutual financial and property rights and obligations of a husband and wife, including those relating to a division of marital assets, are valid and binding, and specifically...