Surabian v. Surabian

• Citation: 362 Mass. 342,285 N.E.2d 909
• Parties: Lucy R. SURABIAN v. Edward SURABIAN.
• Decision Date: 18 July 1972
• Court: United States State Supreme Judicial Court of Massachusetts

Page 909

285 N.E.2d 909

362 Mass. 342

Lucy R. SURABIAN v. Edward SURABIAN.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 8, 1972.

Decided July 18, 1972.

Frank J. Santangelo, Boston, for libellee.

Marcus E. Cohn, Boston, for libellant.

Before TAURO, C.J., and SPIEGEL, REARDON and HENNESSEY, JJ.

TAURO, Chief Justice.

The parties were married on March 12, 1933. The appellant Lucy R. Surabian, hereinafter referred to as the libellant, filed a libel for divorce ¹ on September 24, 1963, in the Middlesex Probate Court. A decree nisi was entered on January 29, 1964, granting a divorce and incorporating by reference the terms of a separation agreement by the parties.

Under the agreement, ² the libellee agreed to pay to the libellant 'the sum of forty ($40.00) dollars per week as alimony for her sole support and maintenance, provided, however, that if the wife remarries such support and maintenance shall forth-with cease and terminate and the husband (libellee) will be under no further obligation to pay any moneys for the support of the said wife.' The agreement, in addition, fully disposed of all jointly held property and adjusted all rights and obligations between the parties.

On December 30, 1968, the libellant married one Jule Sheftel in Denver, Colorado, and thereafter the libellee ceased making support payments. Subsequently, on August 12, 1969, the Colorado marriage was annulled, without contest, by a decree of the Norfolk Probate Court. By a letter dated August 27, 1969, counsel for the libellant informed the libellee that he should resume making support payments pursuant to the 1964 divorce decree. The libellee refused, and on October 10, 1969, the libellant filed in the Middlesex Probate Court a petition to hold the libellee in contempt for failure to make alimony payments since December 30, 1968 (the date of the remarriage).

While the contempt petition was pending, ³ on November 5, 1969, the libellee filed a 'general petition for modification of (the divorce) decree.' The petition alleged that the marriage of the libellant to Jule Sheftel terminated the libellee's alimony obligation, and it prayed that the decree 'be modified by deleting any reference to alimony.' After a hearing, the Middlesex Probate Court on March 25, 1971, 'decreed that so much of said decree dated January 29, 1964, as relates to the payment of alimony be and the same hereby is revoked as of the date of re-marriage of said libellant, and except as herein modified said decree be affirmed.' From this decree, the libellant has appealed.

The case is before us with a report of the evidence. No findings of fact were made by the judge. 'It is our duty to examine the evidence and to decide the case upon our own judgment, not only as to questions of law but also as to questions of fact. . . . ((T)he findings of the judge) necessarily implied from the entry of the decree will not be reversed unless they are plainly wrong. Durfee v. Durfee, 293 Mass. 472, 200 N.E. 395. Berry v. Kyes, 304 Mass. 56, 22 N.E.2d 622.' Levanosky v. Levanosky, 311 Mass. 638, 639, 42 N.E.2d 561, 562.

1. At the outset it is necessary to determine the status of the separation agreement.

Agreements made while parties are separated may provide for the agreement's termination or continuation after a decree nisi is entered. See Schillander v. Schillander, 307 Mass. 96, 29 N.E.2d 686; Fabrizio v. Fabrizio, 316 Mass. 343, 55 N.E.2d 604. Compare Welch v. Chapman, 296 Mass. 487, 6 N.E.2d 438. The separation agreement here does not specify whether it is to remain in force. The mere fact that the provisions of the agreement were incorporated in the divorce decree does not mean that the agreement terminated upon entry of the decree. '(I)t is not lightly to be presumed that a decree, ephermeral in that it could be revised downward at any time, was accepted by a wife as a substitute for an existing agreement.' Metcalf v. Commissioner of Int. Rev., 271 F.2d 288, 292 (1st Cir.), cited approvingly in Hills v. Shearer, 355 Mass. 405, 408--409, 245 N.E.2d 253. '(T)he question is one of intent, which is to be ascertained by a reading of the . . . (parties') agreement (in its entirety).' Id. at 408, 245 N.E.2d at 256. See Freeman v. Sieve, 323 Mass. 65i, 656, 84 N.E.2d 16.

The agreement in the instant case provides, in addition to support, for a division of all properties and for an adjustment of all rights and obligations. A natural reading of the agreement, including the provisions for other court proceedings for specific performance, indicates an intent that the agreement not be superseded by the decree. See Welch v. Chapman, supra, 296 Mass. at 488, 6 N.E.2d 438; Freeman v. Sieve, supra, 323 Mass. at 656, 84 N.E.2d 16; Hills v. Shearer, supra, 355 Mass. at 408, 245 N.E.2d 253. ⁴

Because the separation agreement exists independently of the divorce decree, the libellant could seek to have the support provision enforced in a contract action. Under our decision in Gerrig v. Sneirson, 344 Mass. 518, 520--521, 183 N.E.2d 131, 132, however, she would not prevail. In the Gerrig case, this court said that, where a separation agreement provides that the husband shall make support payments 'until the remarriage of the wife,' the parties will be held to have contemplated termination of payments upon the ceremony of marriage, unless it clearly appears that their intent was otherwise. The husband's support obligation ceases effective upon remarriage and does not revive if the remarriage is later annulled. See also Glazer v. Silverman, 354 Mass. 177, 178--179, 236 N.E.2d 199; Gaines v. Jacobsen, 308 N.Y. 218 223--224, 124 N.E.2d 290; annotation, 48 A.L.R.2d 318, 329--332. Cf. Price v. Price, 24 Cal.App.2d 462, 464--467, 75 P.2d 655.

In these circumstances, it is clear that, by remarrying, the libellant relinquished her right of support under the separation agreement. She seeks to escape the consequences of the contract which she freely entered into by proceeding under the divorce decree rather than by suing under the separation agreement.

2. The issue posed is whether the libellant is entitled to alimony under the divorce decree despite the termination provision incorporated by reference from the separation agreement.

Under our alimony statute, a decree providing for support payments does not rest upon the agreement of the parties, although of course their agreement may be considered by the judge as evidence to aid him in the determination of a proper allowance for the wife. ⁵ G.L. c. 208, §§ 34--37. See Parker v. Parker, 211 Mass. 139, 141--143, 97 N.E. 988, for a review of earlier alimony statutes. 'Husband and wife cannot by contract, deprive the probate court . . . of power to consider their relation in connection with their contract and all other facts material to the issues properly before it in providing for the maintenance of wife . . ..' Wilson v. Caswell, 272 Mass. 297, 302, 172 N.E. 251, 253. See SMITH V. SMITH, MASS., 265 N.E.2D 858.^A Thus, in determining the effect of the termination provision in the instant case, it is the court's intention which must be ascertained. See Farrington v. Boston Safe Deposit & Trust Co., 280 Mass. 121, 127, 181 N.E. 779; Taylor v. Gowetz, 339 Mass. 294, 298, 158 N.E.2d 677.

Since our decision in Gerrig v. Sneirson, 344 Mass. 518, 183 N.E.2d 131, had been rendered at the time the divorce decree was entered, the judge entering the decree was chargeable with knowledge of the construction given there to the word 'remarriage.' The judge in his decree could have, but did not, modify in any way the word 'remarries' in the clause providing for the termination of alimony upon remarriage. The decree, therefore, requires the conclusion that he intended that all matrimonial ties between the parties would be totally dissolved upon the libellant's going through the ceremony of marriage with another man. The case of Robbins v. Robbins, 343 Mass. 247, 178 N.E.2d 281, decided some months before the Gerrig case, is of no assistance to the libellant since the decree there was silent on the effect of remarriage. Nor had the parties in the Robbins case provided in a separation agreement for the termination of alimony. ⁶

There is no doubt a judge of the Probate Court may enter a divorce decree such as the one involved in the instant case. The power of the Probate Court over alimony is extremely broad under our alimony statute. G.L. c. 208, §§ 34--37.

It is well settled that the court's power permits revocation of decrees and also their revision from time to time. See G.L. c. 208, § 37. See also Brown v. Brown, 222 Mass. 415, 417, 111 N.E. 42; Perkins v. Perkins, 225 Mass. 392, 397, 114 N.E. 713; Kerr v. Kerr, 236 Mass. 353, 356, 128 N.E. 409; Watts v. Watts, 314 Mass. 129, 133, 49 N.E.2d 609; Whitney v. Whitney, 325 Mass. 28, 31, 88 N.E.2d 647. The Probate Court may order alimony paid in a gross sum or in instalments. Burrows v. Purple, 107 Mass. 428, 432. Brown v. Brown, supra. Weidman v. Weidman, 274 Mass. 118, 174 N.E. 206. Baird v. Baird, 311 Mass. 329, 333, 41 N.E.2d 5. Klar v. Klar, 322 Mass. 59, 60, 76 N.E.2d 5. Kahn v. Kahn, 353 Mass. 771, 233 N.E.2d 902. Specific property may be ordered transferred as payment of alimony. See Topor v. Topor, 287 Mass. 473, 192 N.E. 52; Klar v. Klar, supra. Further, a decree may require that alimony extend beyond the lifetime of the party ordered to make payments. See Southard v. Southard, 262 Mass. 278, 280--281, 159 N.E. 512; Farrington v. Boston Safe Deposit & Trust Co.,280 Mass. 121, 181 N.E. 779. See also Taylor v. Gowetz, 339 Mass. 294, 299, 158 N.E.2d 677 (where an agreement was so construed).

We are of opinion that the Probate Court may also order that support payments to the wife terminate upon her remarriage. In most instances, a self-terminating provision will be equitable to both husband and wife. ⁷ But in any event, a right of appeal lies from such a decree, G.L. c. 215, §§...