Parrish v. Parrish

• Decision Date: 05 February 1991
• Docket Number: No. 90-P-199,90-P-199
• Citation: 566 N.E.2d 103,30 Mass.App.Ct. 78
• Parties: Robert M. PARRISH, Jr. v. Jean S. PARRISH (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 103

566 N.E.2d 103

30 Mass.App.Ct. 78

Robert M. PARRISH, Jr. v. Jean S. PARRISH (and a companion case ¹).

No. 90-P-199.

Appeals Court of Massachusetts Middlesex.

Argued Oct. 4, 1990.

Decided Feb. 5, 1991.

Elizabeth A. Zeldin, Boston, for Jean S. Parrish.

David E. Cherny, Boston, for Robert M. Parrish, Jr.

Before WARNER, C.J., and FINE and GILLERMAN, JJ.

WARNER, Chief Justice.

Once again, we visit the problems created by the use of inconsistent and confusing language in a divorce separation agreement, the resolution of which has critical legal consequences. See DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231, 239 n. 10, 508 N.E.2d 104 (1987). By a judgment of divorce nisi under G.L. c. 208, § 1A, entered June 30, 1986, the parties were ordered to comply with the terms of an agreement dated May 29, 1986, which was "filed, incorporated and merged" into the judgment. ² The agreement provided, among other things, that Jean have physical custody of the parties' three minor children and that Robert pay to Jean, as unallocated alimony and support, the sum of $5,800 a month (subject to certain self-executing adjustments). Neither party appealed from the divorce judgment.

On August 18, 1986, Jean filed a complaint for contempt alleging that Robert had failed to comply with various provisions of the judgment. As part of a "Schedule A" attached to her complaint, she also sought (in a section entitled "Modification") to alter the date by which Robert would make alimony payments, or alternatively, the manner in which payment would be made. After Robert filed his answer and a counterclaim, the matter was settled by the parties and an order of dismissal was entered.

The disputes which are the subject of the present appeals began on November 9, 1987, when Robert filed a complaint for modification seeking to reduce his support obligation. He alleged that his income had substantially decreased while his living expenses and "net indebtedness" had substantially increased. In January, 1988, Jean filed a complaint for contempt, alleging that Robert was in arrears in his support payments and had failed to pay, among other things, summer camp expenses incurred by the children in 1987. Shortly thereafter, Jean filed her answer to Robert's complaint, and a counterclaim, in which she alleged that the 1986 agreement was intended by the parties to survive the divorce judgment, but that if modification were to be granted, changes in her own circumstances and those of the children warranted an increase in Robert's support obligation. In his answer to Jean's counterclaim, Robert averred that the parties' agreement merged into the divorce judgment and ceased thereafter to have any independent legal significance.

After consolidation of the cases and trial, a Probate Court judge found that the agreement merged into the divorce judgment and was not intended by the parties to survive as an independent contract, that Robert had suffered a sixty percent reduction in income since 1986, ³ and, consequently, did not have the ability to continue to make support payments as required by the judgment, and that Robert's reduction in support payments was not orchestrated to defeat or frustrate the agreement. The judge concluded that Robert had demonstrated a material change in circumstances which would warrant modification of the divorce judgment and that he should be "credited with payments dating back to the date of service of [his] Complaint for Modification." The judge noted that because of Jean's financial position, she could not pay back the funds to be credited, and left the matter to be addressed by the parties at a later date. The court denied Jean's motion for counsel fees, stating that she had already been awarded $3,000 in order to defend the modification complaint, and (with her attorney) had not proceeded in the matters in good faith. ⁴ The judge also found that Robert was not in contempt.

On August 18, 1988, a modification judgment entered which reduced Robert's support payments to $2,500, retroactive to March 8, 1988, and ordered him to pay as additional support for Jean and the children twenty percent of all future bonuses from employment when and as received. The total combined support payments to be made were not, in any one month, to exceed $5,800. Judgments also entered dismissing Jean's complaint for contempt and her counterclaim for modification.

In September, 1988, Robert filed a motion to amend the judgment and Jean filed a motion for relief from the judgment. After hearing, the court entered an amended modification judgment, nunc pro tunc to August 18, 1988, maintaining the base support obligation at $2,500 a month, but revising certain provisions of the judgment (e.g., those pertaining to reductions in support upon the sale of the house or Jean's remarriage) to reflect the new modified support award. The amended judgment also provided that Jean pay to Robert a "sum equal to the difference between all support paid to [Jean] by [Robert] pursuant to the [alimony and support provisions of the agreement and judgment] and Two Thousand Five Hundred ... Dollars from all time periods from and including January 22, 1988, to the present." There were subsequent postjudgment motions and an amendment of the judgment which are not relevant to our discussion. On August 6, 1989, a single justice of this court stayed the modification judgment, as it relates to alimony and the repayment obligations imposed on the wife, pending determination of the appeal.

On appeal, Jean argues that the judge erred in concluding that the parties' agreement did not survive as an independent contract and was, thus, modifiable. She also argues that certain findings made by the judge are clearly erroneous, that the findings are inadequate in that they fail to show that the court considered "all attendant circumstances" of the parties and the children, and that, in any event, Robert failed to demonstrate a material change in circumstances sufficient to support modification of the original divorce judgment. Robert rejoins that the judge properly concluded that the agreement merged, in the technical sense, into the divorce judgment, and that, even if the agreement were deemed to have survived the judgment with independent significance, the evidence supports a finding that he had demonstrated "something more than a material change of circumstances." ⁵

1. The status of the separation agreement. The consequences which flow from the survival or the extinction of a separation agreement have been considered at length in cases such as Knox v. Remick, 371 Mass. 433, 435-438, 358 N.E.2d 432 (1976); Stansel v. Stansel, 385 Mass. 510, 512-513, 432 N.E.2d 691 (1982); Ames v. Perry, 406 Mass. 236, 239-241, 547 N.E.2d 309 (1989); and DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. at 235-236, 508 N.E.2d 104, and there is no reason to rehearse them. It is enough to say that "[i]f an agreement does not survive a judgment of divorce nisi, 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." DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. at 235, 508 N.E.2d 104, and cases cited. In that event, modification of the judgment is governed by the usual rule which requires a showing of a material change of circumstances. Ibid. On the other hand, a separation agreement which fixes interspousal or child support, and which survives a divorce judgment and is valid at the time of entry of that judgment, should be specifically enforced, absent "changed circumstances ... [which] give rise to countervailing equities." Ames v. Perry, 406 Mass. at 240, 241, 547 N.E.2d 309. Dennis v. Dennis, 29 Mass.App.Ct. 161, 162-163, 558 N.E.2d 991 (1990). This standard has been properly abbreviated (by DeCristofaro v. DeCristofaro, supra, 24 Mass.App.Ct. at 236 n. 7, 508 N.E.2d 104) into the shorthand phrase of "something more than a material change of circumstances." Ames v. Perry, 406 Mass. at 241, 547 N.E.2d 309.

In determining whether or not a parties' separation agreement survives a judgment of divorce, it is the intent of the parties, rather than the inclination of the judge, which controls, see Moore v. Moore, 389 Mass. 21, 24, 448 N.E.2d 1255 (1983); DeCristofaro v. DeCristofaro, supra 24 Mass.App.Ct. at 237, 508 N.E.2d 104; Freedman v. Freedman, 29 Mass.App.Ct. 154, 155, 557 N.E.2d 1386 (1990), and that intent is determined from the whole agreement. DeCristofaro v. DeCristofaro, supra. Indicia of intent must also be examined in the 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. See Ryan v. Ryan, 371 Mass. 430, 431, 358 N.E.2d 431 (1976); Freeman v. Sieve, 323 Mass. 652, 656, 84 N.E.2d 16 (1949); Welch v. Chapman, 296 Mass. 487, 488, 6 N.E.2d 438 (1937). We have noted that 'it is not lightly to be presumed that a decree, ephemeral in that it could be revised downward at any time, was accepted by a wife as a substitute for an existing agreement.' Hills v. Shearer, 355 Mass. 405, 408-409, 245 N.E.2d 253 (1969), quoting Metcalf v. Commissioner, 271 F.2d 288, 292 (1st Cir.1959). The 'general rule [is that] unless the parties expressly provide otherwise, their separation agreement will be held to survive a subsequent divorce decree incorporating by reference the terms of the agreement.' Surabian v. Surabian, 362 Mass. 342, 345-346 n. 4 (1972)." Moore v. Moore, 389 Mass. at 24-25, 448 N.E.2d 1255. DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. at 237, 508 N.E.2d 104.

Against this backdrop, we consider the propriety of the judge's conclusion that the separation agreement merged, in the technical sense, into the divorce judgment. ⁶ The parties' agreement is detailed and comprehensive. It is thirty-four pages in length and makes provisions for...