Heistand v. Heistand

• Decision Date: 02 July 1981
• Citation: 423 N.E.2d 313,384 Mass. 20
• Parties: Marjorie G. HEISTAND v. Peter J. HEISTAND.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 313

423 N.E.2d 313

384 Mass. 20

Marjorie G. HEISTAND v. Peter J. HEISTAND.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 4, 1981.

Decided July 2, 1981.

David M. Shaw, Braintree, for Peter J. Heistand.

Russell H. Mann, Jr., Brookline, for Marjorie G. Heistand.

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

LIACOS, Justice.

The plaintiff, Marjorie G. Heistand, filed a complaint for divorce on October 21, 1977. A judgment of divorce nisi for the cause of "utter desertion" was entered on September 11, 1978, in the Norfolk Probate and Family Court. This case originated with the plaintiff's complaint for contempt, filed on September 26, 1978, and for modification, filed October 10, 1978. The defendant, Peter Heistand, appeals from judgments for contempt and for modification entered in the Probate Court on October 4, 1979. He appeals as well from the denial of his subsequent motion to amend these judgments. ¹

The Probate Court judge found the defendant in contempt on one of the alleged grounds of arrearage and ordered upward modification of the defendant's child support obligation. The plaintiff not having appealed those aspects of her complaint which were denied, our review is limited to the issues raised by the defendant. He seeks review of these judgments and also of the denial of his request for declaratory relief and for counsel fees. We transferred the case from the Appeals Court on our own motion. G.L. c. 211A, § 12.

The relevant facts are as follows. In June, 1978, the parties entered into a stipulation as to custody and support of three minor children, alimony, and property settlement. The parties commenced performance under this stipulation on June 9, 1978. The provisions of that agreement which are relevant to this appeal are the following. The husband was to pay the wife the sum of $150 a week for her support and the support of three minor children, to be treated as income to the wife, and deductible for tax purposes by the husband, "until the remarriage of Wife." Upon the wife's remarriage, the husband would pay $40 a week for the support of each minor child, or a child support obligation of $120 a week. In addition, the parties agreed to share pro rata the 1978 income tax liability, by a provision set out in the margin. ²

On June 24, 1978, Marjorie Heistand participated in a so called "marriage ceremony" with one David Lowry whereby they purported to exchange "marriage vows" although Marjorie was still married to the defendant. Contemporaneously with the ceremony, the pair sent out printed announcements to inform their acquaintances that they considered themselves married. Marjorie used the surname Lowry thereafter. At the time, the defendant was informed orally of the arrangement whereby David Lowry, with his children, lived with the plaintiff and her children as husband and wife. On or about June 11, 1978, Lowry paid the defendant the $15,000 by which the plaintiff acquired full title to the real estate which had been the Heistand's family home. ³

The judgment nisi of September 11, 1978, incorporated the June stipulation, filed with the court on August 4, 1978; the stipulation then merged into the judgment, losing all independent significance. The parties' divorce became absolute on March 12, 1979, and Marjorie Heistand and David Lowry were officially married on March 19, 1979. The defendant paid the plaintiff $150 a week from June 9, 1978, until March 19, 1979. From that March date until May 4, 1979, the defendant paid $120 a week as child support.

After May 4 the defendant reduced his weekly support payments by $40. ⁴ This offset he claimed as the plaintiff's share of Federal and State income tax liability for 1978. The parties filed joint tax returns for 1978 as agreed in the stipulation. On the Federal return the defendant took an adjustment to income in the amount of $5,960 paid to the plaintiff as alimony. ⁵ Prorating this amount (and an additional $86 attributable as the wife's income) over the total gross income, the defendant presumed a proportionate tax liability in the plaintiff of 19%, or $757. The Probate Court judge found no tax liability on the plaintiff's part. Her contempt judgment ordered the defendant to repay the arrearage by adding $40 to his weekly support payments commencing October 20, 1979. In addition the judge modified the support obligation from $40 a week for each minor child to $60 a week. We discuss seriatim the defendant's several claims of error in the judgment and conclusions of the Probate Court judge.

1. Termination of alimony. By his answer to the complaint for modification the defendant sought a declaration that the plaintiff had remarried for purposes of the alimony termination set out in the stipulation. ⁶ He claimed further that he should receive a credit for overpayment of alimony. He argues that the unofficiated ceremony of June, 1978, though not cognizable as a marriage under the laws of Massachusetts, was a remarriage within the intendment of the parties' agreement. Therefore, the defendant postulates that he overpaid the plaintiff from June 24, 1978, through March 19, 1979. Although the defendant recites relevant law, proper application of that law to the facts at bar does not upset the result below.

The ceremonial exchange of vows between the plaintiff and David Lowry was a legal nullity in this Commonwealth, as the judge below acknowledged. Massachusetts does not recognize common-law marriage. Commonwealth v. Munson, 127 Mass. 459, 470 (1879). See generally J. F. Lombard, Family Law § 1035 (1967). Contrast Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909 (1972) (despite subsequent annulment, Colorado marriage ceremony was "remarriage" for purposes of alimony termination).

The defendant argues that the probate judge erred in failing to conclude that the actions of the plaintiff in forming a "spousal-oriented" relationship with Lowry constituted a "remarriage" within the meaning of the stipulation. He cites, inter alia, Ruquist v. Ruquist, 367 Mass. 662, 327 N.E.2d 742 (1975), and Glazer v. Silverman, 354 Mass. 177, 236 N.E.2d 199 (1968), in support of this argument.

The holding of Ruquist v. Ruquist, supra 367 Mass. at 666, 327 N.E.2d 742, might be applicable to the case at bar, if it were shown that the plaintiff had received support from Lowry after the June ceremony. Such a state of facts would, as a matter of equity, trigger the principles of Glazer v. Silverman, 354 Mass. 177, 236 N.E.2d 199 (1968). Because the law of New York entitled the wife to support from her second husband after annulment of her remarriage, the court in Glazer deemed it inequitable to allow the wife to receive support from two husbands. Id. at 180, 236 N.E.2d 199. In that case this court also evaluated a ceremonial, invalid marriage according to its effect on third parties. Id. at 178, 236 N.E.2d 199. The court declined to hold a husband liable for alimony where he was entitled to rely on the apparent validity of his former wife's remarriage. The Glazer court would not reinstate an alimony obligation "upon disclosure of circumstances to which the husband was not privy and which he has no reasonable means of discovering." Id. at 179, 236 N.E.2d 199. Neither of the criteria dispositive in Glazer double support or third-party reliance is evident on the record before us.

Similarly, in Ruquist, the wife left the State with the minor children of the marriage and cohabited with another in the U.S. Virgin Islands. These actions were taken without the knowledge and consent of the former husband and in violation of the visitation rights of the husband, and of the laws of the Commonwealth. The court upheld a judgment treating this conduct as a "remarriage" under the support agreement.

Although the defendant asserts that Lowry assumed the obligation to support the plaintiff from June 24, 1978, until their legal marriage, he adduced no evidence thereof. Lowry's advancement of the purchase money for the defendant's half interest in the marital home and his expenditures to remodel that home cannot be construed as assuming support of Marjorie. At trial, the plaintiff was questioned only about her expenses and resources at the time of the hearing. By that time the plaintiff was legally Lowry's wife and thus entitled to support from Lowry. See Davis v. Misiano, 373 Mass. 261, 262, 366 N.E.2d 752 (1977). During the nine months of cohabitation preceding the March 19 solemnization, Lowry had no legal obligation to support the plaintiff, nor was there any evidence of such an undertaking on his part. Davis v. Misiano, supra. See generally Sutton v. Leib, 199 F.2d 163, 164 (7th Cir. 1952) (there can be no double support where putative second husband is not legally obliged to support wife). Nor does this record evince an implied obligation, such as an agreement between Lowry and the plaintiff. Contrast Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976) (enforcing parties' agreement to share property acquired during cohabitation).

Moreover, we cannot extend to this record the equitable principle of Glazer, supra, that the defendant legitimately relied on the wife's changed status. See generally Gerrig v. Sneirson, 344 Mass. 518, 521, 183 N.E.2d 131 (1962). The facts in the case of Surabian v. Surabian, 362 Mass. 342, 285 N.E.2d 909 (1972), on which the defendant relies, are also distinguishable. In Surabian the wife participated in an apparently valid Colorado marriage ceremony. After that marriage was annulled, she sought reinstatement of alimony. The court's refusal to reinstate alimony implicitly recognized the husband's expectation that a valid remarriage had occurred. See 362 Mass. at 346-347, 285 N.E.2d 909. Here, the defendant was informed almost forthwith of the ceremony and his wife's living arrangement. Having knowledge of the June 24 ceremony, the defendant nevertheless continued to pay the...