Stansel v. Stansel

• Decision Date: 05 March 1982
• Citation: 385 Mass. 510,432 N.E.2d 691
• Parties: Betty J. STANSEL v. Arthur G. STANSEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 691

432 N.E.2d 691

385 Mass. 510

Betty J. STANSEL v. Arthur G. STANSEL.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 5, 1981.

Decided March 5, 1982.

Edward M. Mahlowitz, Cambridge, for defendant.

Maryann K. Clark, Sudbury, for plaintiff.

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

LYNCH, Justice.

The parties in this case were granted a divorce under the provisions of G.L. c. 208, § 1A, a statute which enables a couple to obtain a divorce, without alleging or proving fault, on the ground of an irretrievable breakdown of their marriage. Prior to the divorce, the parties (both of whom had retained counsel of their own choosing) entered into a separation agreement. The separation agreement divided the marital property and obligated the husband to pay support to the wife for a two-year period. ¹ The parties waived any further claims to each other's property. The separation agreement recited that it was intended to survive the entry of any divorce decree and to be binding on the parties thereafter.

On June 15, 1978, a judge of the Probate Court for Middlesex County entered an order finding an irretrievable breakdown, approving the separation agreement, and incorporating it into a judgment nisi which was to be entered, pursuant to G.L. c. 208, § 1A, on December 15, 1978. Judgment nisi entered on that date and, in accordance with the statute, ripened into judgment absolute of divorce on June 15, 1979. G.L. c. 208, § 21.

On January 31, 1980, before the support payments were to terminate, the wife (plaintiff) filed a complaint for modification seeking to continue her support payments. In a memorandum in opposition to the plaintiff's complaint, the defendant raised the separation agreement as a bar to modification. After a hearing, a second Probate Court judge, finding a change of circumstances, entered a judgment modifying the original judgment of divorce and ordering the defendant: (a) to continue support payments to the plaintiff for an additional three years; (b) to increase the amount of those payments; (c) to provide the plaintiff with medical and dental insurance coverage until she remarried; and (d) to pay the plaintiff's attorney's fees and costs. The defendant appealed the modification of the original judgment, asserting again that the separation agreement barred the plaintiff from obtaining the relief she sought and raising the further argument that judgments entered under G.L. c. 208, § 1A, are not subject to modification after a judgment nisi has entered. ² We transferred the case to this court on our own motion. We reverse the modification judgment and reinstate the original judgment of divorce.

1. Probate Court jurisdiction to modify judgments of divorce. The defendant asserts that the Probate Court is without jurisdiction to modify judgments of divorce entered under G.L. c. 208, § 1A. Section 1A provides in part that "(f)ollowing approval of (a separation) agreement by the court, but prior to the entry of judgment nisi, said agreement may be modified ... at any time by agreement of the parties and with the approval of the court, or by the court upon the petition of one of the parties after a showing of a substantial change of circumstances; and the agreement, as modified, shall continue as the order of the court." G.L. c. 208, § 1A, as amended through St.1979, c. 362, §§ 1, 2. The defendant argues that this language implies that the Legislature intended the Probate Court to have no power to modify the judgment after the entry of the judgment nisi.

We disagree. "Our decisions have held consistently that the power of a Probate Court to modify its support orders may not be restricted by an agreement between a husband and a wife which purports to fix for all time the amount of the husband's support obligation." Ryan v. Ryan, 371 Mass. 430, 432, 358 N.E.2d 431 (1976), and cases cited. See G.L. c. 208, § 37. If the Legislature had intended to limit a power of the Probate Court so firmly grounded in statute and precedent, it would have done so expressly and not merely by implication. Accordingly, we hold that the Probate Court has jurisdiction, in appropriate circumstances, to modify the support provisions of judgments of divorce entered under G.L. c. 208, § 1A, but that such circumstances do not exist in this case.

2. Incorporation and merger of separation agreements. The plaintiff's contention that the probate judge properly modified the original judgment of divorce rests largely on the language of G.L. c. 208, § 1A. That statute obligates parties seeking a divorce to present their separation agreement to the court, and requires the judge to make findings "as to whether or not an irretrievable breakdown of the marriage exists and whether or not the (separation) agreement has made proper provisions for custody, for support and maintenance, for alimony and for the disposition of marital property." G.L. c. 208, § 1A. If those findings are in the affirmative, the statute states that "the court shall approve the agreement and (the agreement) shall have the full force and effect of an order of the court and shall be incorporated and merged into said order, and by agreement of the parties it may also remain as an independent contract" (emphasis supplied). G.L. c. 208, § 1A.

In the instant case, the judge in the original divorce proceedings found affirmatively with respect to the facts specified in the statute, and the June 15, 1978, order for judgment "incorporated and merged" the parties' separation agreement into the judgment nisi, which subsequently became the judgment absolute of divorce. The plaintiff argues that the term "merged," as used in both the statute and the order for judgment, should be given its technical meaning: "Where any separation agreement is ... merged in a decree it becomes part of the decree and loses its status as a contract and does not survive so that no action may be brought upon the agreement either for specific performance or otherwise ...." 2 J. F. Lombard, Family Law § 1263, at 338 (1967). See Hills v. Shearer, 355 Mass. 405, 408, 245 N.E.2d 253 (1969); Schillander v. Schillander, 307 Mass. 96, 29 N.E.2d 686 (1940). If a technical merger took place, the second Probate Court judge properly refused to specifically enforce the parties' separation agreement.

The plaintiff's contention is without merit. That the Legislature, in enacting G.L. c. 208, § 1A, did not intend to use the term "merged" in its technical sense is clearly demonstrated by the phrase which follows that term in the statute. If a separation agreement approved by the court and incorporated into an order for judgment were truly to be merged into that order, the separation agreement could not, "by agreement of the parties ... also remain as an independent contract."

The separation agreement signed by the plaintiff and the defendant recites that "(n)otwithstanding the incorporation of this agreement in (the) decree (of divorce), the provision hereof shall not be merged in any such decree, but shall survive and be forever binding and conclusive on the Wife and on the Husband, and their respective heirs, successors, and assigns." This clause manifests the parties' evident intention that the separation agreement survive incorporation into the judgment absolute of divorce and remain an independent contract. The statute specifically permits survival under such circumstances, and we hold that the parties' separation agreement therefore survived entry of the judgment absolute.

3. Enforceability of the separation agreement in the Probate Court. It is settled that agreements such as the one involved in the instant case, "when free from fraud and coercion and when fair and reasonable, are valid." Reeves v. Reeves, 318 Mass. 381, 384, 61 N.E.2d 654 (1945). Accord, Knox v. Remick, 371 Mass. 433, 436-437, 358 N.E.2d 432 (1976); 1 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 3(7) (2d rev. ed. 1978), and cases cited. "If a judge rules, either at the time of the entry of a judgment nisi of...