Gottsegen v. Gottsegen

• Decision Date: 22 May 1986
• Parties: , 55 USLW 2038 Sandra L. GOTTSEGEN v. Robert S. GOTTSEGEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1133

492 N.E.2d 1133

397 Mass. 617, 55 USLW 2038

Sandra L. GOTTSEGEN v. Robert S. GOTTSEGEN.

Supreme Judicial Court of Massachusetts Worcester.

Argued Dec. 2, 1985.

Decided May 22, 1986.

Monroe L. Inker, Boston (Robert J. O'Regan, Boston, with him), for plaintiff.

Robert J. Kates, Boston (Douglas S. Segal, Boston, with him), for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

ABRAMS, Justice.

We hold that in a judgment for divorce, a judge of the Probate Court may not order the termination of alimony on the occurrence of an event unrelated to the recipient spouse's need for alimony or the supporting spouse's ability to pay.

On December 11, 1980, the plaintiff, Sandra L. Gottsegen, filed a complaint for divorce in the Probate and Family Court on the ground of irretrievable breakdown of her marriage to the defendant, Robert S. Gottsegen. G.L. c. 208, § 1A. A judge of the Probate Court entered a judgment of divorce nisi on August 3, 1981. On October 12, 1983, the plaintiff filed a complaint for civil contempt against the defendant for violation of the August 3, 1981, order. The judge dismissed the complaint, ¹ but awarded counsel fees to the plaintiff. Both parties appealed. The plaintiff then retained new counsel and, on April 24, 1984, moved for relief from the judgment of divorce under Mass.R.Dom.Rel.P. 60(b) (1975), and concurrently moved for leave to take discovery, for an evidentiary hearing, and for reference to a master. The judge allowed the defendant's motion to strike the various motions, and denied the plaintiff's subsequent motion for reconsideration. The plaintiff appealed the allowance of the motion to strike. The appeals were consolidated. We transferred the case here on our own motion. We now affirm the rulings on the motion for relief under rule 60(b) and on counsel fees. We vacate and remand the ruling on contempt.

Before the plaintiff filed for divorce, she and the defendant executed a separation agreement. Under art. V.3 of the separation agreement, the parties agreed to request the Probate Court to incorporate the terms of the agreement into a final judgment of divorce. They further agreed that if the court did so, the provisions of art. III of the agreement ("Financial Arrangements Relating to Wife") would be merged in the judgment, but that the remaining provisions would survive as an independent contract. In the judgment of divorce nisi, the court ordered that the agreement be made a part of the judgment. The clauses here in controversy derive from art. III of the agreement which, by the terms of the agreement, merged into the judgment and did not survive. ² They therefore have no legal significance independent of the divorce judgment. See Knox v. Remick, 371 Mass. 433, 435, 358 N.E.2d 432 (1976). Cf. Bell v. Bell, 16 Mass.App.Ct. 188, 190, 459 N.E.2d 109 (1983) (agreement survives judgment and has independent significance), rev'd on other grounds, 393 Mass. 20, 468 N.E.2d 859 (1984).

Paragraph A.1 of art. III of the judgment requires the defendant to pay the plaintiff $812.50 per month for her support and maintenance. Paragraph A.5 of art. III provides that, "[i]n the event of the wife's remarriage (as hereinafter defined) at any time prior to the fifth (5th) anniversary of the date of execution hereof, the husband's support obligation ... shall thereupon terminate and be substituted by an obligation to pay to the wife, or for her benefit, for her support and maintenance" $30,000, at the rate of $833.33 per month for three years. Paragraph A.9 provides, "The remarriage of the wife shall, for purposes of this Agreement, be deemed to include her cohabitation with the same unrelated man with whom the wife has a romantic relationship for more than two (2) consecutive months."

1. The civil contempt complaint. In early 1983, the defendant began to suspect that the plaintiff was cohabiting with one L.W. After confirming his suspicions through personal observation and the report of a private investigator, the defendant concluded that the plaintiff had been cohabiting with L.W. for more than two consecutive months. On July 15, 1983, he commenced making monthly payments of $833.33, pursuant to the remarriage and cohabitation clauses of the agreement.

The plaintiff responded to the changed alimony payments by filing a complaint for civil contempt. The defendant denied that he was in contempt of the divorce judgment. He counterclaimed to request a judgment declaring that the plaintiff had remarried pursuant to paragraph A.9 of art. III of the agreement and determining the date of the remarriage and his further alimony obligations. The parties stipulated that the plaintiff had a romantic relationship with L.W. The judge found that, during the seven-week period from April 17 through June 5, 1983, the plaintiff and L.W. spent the night together on an average of at least 5.5 nights per week, including one period of seventeen consecutive nights. The judge made detailed findings about the plaintiff's and L.W.'s living, social, and financial arrangements, including the following: "40. [L.W.] and Mrs. Gottsegen have never represented to be man and wife, even on over night trips. 41. Mrs. Gottsegen receives no financial support from Mr. [L.W.] except [that] he pays for about 85% of the cost of eating out. Mrs. Gottsegen provided no financial support to [L.W.]. 42. Mrs. Gottsegen and [L.W.] have no joint assets of any kind. 43. Mrs. Gottsegen and [L.W.] maintain separate residences. 44. There is a continuing need for alimony for Mrs. Gottsegen." The judge concluded that the plaintiff and L.W. were cohabiting for more than two consecutive months within the terms of the cohabitation clause, ³ and that the remarriage provisions should take effect as of June 1, 1983. He concluded by finding the defendant not in contempt.

We begin our analysis by considering briefly the history of judicial jurisdiction over alimony. In England, questions of divorce and alimony were not within the jurisdiction of the common law courts, but instead were decided by the ecclesiastical courts, applying canon law. 1 Legal Papers of John Adams 281 (L. Wroth & H. Zobel 1965). ⁴ Because there was no alimony jurisdiction at common law, this court early held that the power to grant alimony was wholly statutory. Davol v. Davol, 13 Mass. 264, 264-265 (1816). See Orlandella v. Orlandella, 370 Mass. 225, 227, 347 N.E.2d 665 (1976); Parker v. Parker, 211 Mass. 139, 141, 97 N.E. 988 (1912). In 1692, the provincial Legislature vested jurisdiction over all questions of marriage and divorce in the Governor and Council. Province Laws 1692-1693, c. 25, § 4. In 1695, the justices of the Superior Court of Judicature were empowered to assign to a wife whose marriage had been nullified by reason of consanguinity "such reasonable part of the estate of her late [i.e., former] husband as in their discretion the circumstances of the estate may admit." Province Laws 1695-1696, c. 2, § 3. ⁵ By St.1785, c. 69, § 7, the Legislature enacted comprehensive legislation regulating marriage and divorce, and directed that all questions of divorce and alimony be heard by the Supreme Judicial Court. The act set out several grounds for divorce--more limited than are available today--and provided for property settlement and alimony that varied according to the grounds for divorce. ⁶ The property settlement and alimony scheme reflected the necessity of providing support for women who, by social convention and traditional property law, were usually dependent on their husbands.

In Holbrook v. Comstock, 16 Gray 109, 110 (1860), this court defined alimony as "that portion of the husband's estate which is allowed [the wife] for her present subsistence and livelihood." ⁷ In subsequent years, as the Legislature gradually expanded the conditions in which alimony could be granted, see Parker v. Parker, 211 Mass. 139, 141-143, 97 N.E. 988 (1912), the support purposes behind alimony remained constant. Thus, in Topor v. Topor, 287 Mass. 473, 192 N.E. 52 (1934), we stated, "The word 'alimony' as used in our statutes carries the meaning of money or property which under order of court a husband provides for the support and maintenance of his wife and such minor children as are committed to her custody.... From the nature of the word 'alimony' support or maintenance of the recipient is an essential element." (Citations omitted.) Id. at 475, 192 N.E. 52.

Throughout this period, the amount of alimony to be granted lay in the "just and reasonable" discretion of the court. While mere subsistence may have been the minimum to which the wife was entitled, the court could grant greater sums depending on the property and capacity of the husband. Graves v. Graves, 108 Mass. 314, 321 (1871). By 1916, it was clear that support and maintenance comprehended "the condition in life of the parties and their mode of living," Brown v. Brown, 222 Mass. 415, 417, 111 N.E. 42 (1916), which, the court later explained, meant "maintain[ing] her and the family according to the property and condition in life of her husband." Coe v. Coe, 313 Mass. 232, 236, 46 N.E.2d 1017 (1943), quoting Jordan Marsh Co. v. Cohen, 242 Mass. 245, 249, 136 N.E. 350 (1922).

In 1974, the Legislature substantially revised the statutory treatment of alimony. G.L. c. 208, § 34, as appearing in St.1974, c. 565. See generally Bianco v. Bianco, 371 Mass. 420, 358 N.E.2d 243 (1976). The amendment made alimony available to either party, depending on the needs and circumstances of the case. The statute now requires the court, in determining the amount of alimony, to consider "the length of the marriage, the conduct of the parties during the marriage, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income."...