Whelan v. Frisbee

• Decision Date: 27 July 1990
• Docket Number: No. 89-P-615,89-P-615
• Citation: 557 N.E.2d 55,29 Mass.App.Ct. 76
• Parties: Lawrence T. WHELAN v. Susan FRISBEE (and a companion case 1 ).
• Court: Appeals Court of Massachusetts

Page 55

557 N.E.2d 55

29 Mass.App.Ct. 76

Lawrence T. WHELAN v. Susan FRISBEE (and a companion case ¹).

No. 89-P-615.

Appeals Court of Massachusetts Essex.

Argued May 21, 1990.

Decided July 27, 1990.

Mary P. Harrington, Salem, for Susan Frisbee.

Celeste R. Niarchos, Salem, for Lawrence T. Whelan.

Before WARNER, C.J., and DREBEN and PORADA, JJ.

WARNER, Chief Justice.

We come here to another example of the careful and thoughtful formulation by Probate Court judges of approaches to the resolution of problems arising in the enforcement and modification of divorce separation agreements, as they relate to child support, which survive a divorce judgment. See Knox v. Remick, 371 Mass. 433, 437-438, 358 N.E.2d 432 (1976); Ames v. Perry, 406 Mass. 236, 240-241, 547 N.E.2d 309 (1989); DeCristofaro v. DeCristofaro, 24 Mass.App.Ct. 231, 236-237, 508 N.E.2d 104 (1987). See also Davidson v. Davidson, 19 Mass.App.Ct. 364, 373-374 n. 12, 474 N.E.2d 1137 (1985).

By a judgment of divorce nisi, entered on July 17, 1985, the parties, Lawrence and Susan, were ordered to comply with the terms of a separation agreement which was incorporated in the judgment but which survived with independent legal significance. Exhibit A to the agreement, entitled, "Custody: Support," provides, among other things, ² that Lawrence pay Susan $110 each week as alimony and $100 per week as support for each of their two children. Child support would be reduced by $100 per week upon the emancipation of the first child and terminated upon the emancipation of the second child. Emancipation would come under the agreement upon a child's graduation from high school and attaining the age of eighteen, unless the child planned to attend college as a full-time student. In the latter event, the parties agreed that emancipation would occur upon the child's attaining the age of twenty-one or the completion of college.

Exhibit C to the agreement, entitled, "College Education for Children," requires the parties to maintain an education fund for the children, and, in the third paragraph, provides that "With regard to future college education expenses of the children not covered by the aforementioned educational trust fund, the Husband shall be responsible for said expenses, to the best of his ability. The Wife shall make whatever contribution she determines in good faith she is able to provide. She agrees to utilize in so far as any excess funds are on hand and received for child support from the Husband for the children attending college, directly for the child's benefit in connection with college expenses (including room and board, books, clothing allowance, transportation, etc.)."

On September 18, 1987, Lawrence filed a complaint for modification, alleging that the parties' children (then nineteen and almost eighteen years old) were attending college, that the expenses for their tuition, room and board for the first semester amounted to $17,389, and that Susan had failed to make any contribution to those expenses despite her ability to do so. He requested that the divorce judgment be modified by "permitting [him] to first utilize all current support and alimony payments towards the children's college tuition expenses or alternatively, [by] terminating all alimony and support obligations." Susan filed her answer to the complaint, pleading the separation agreement in bar. She also filed a complaint for contempt alleging that Lawrence was in arrears in his child support payments in the amount of $1,300. Lawrence countered claiming that he was spending all child support monies for the children's college tuition and expenses. He too filed a cross complaint for contempt alleging that Susan had failed to utilize excess funds "on hand," as required by the agreement, and to contribute to the children's college expenses.

The complaints were consolidated for hearing by a Probate Court judge who, after reviewing the parties' agreement, financial circumstances and contributions toward the education and other expenses of the children, entered a "modification judgment" which terminated Lawrence's obligation to pay child support and directed him to continue to pay all of the reasonable costs of the children's college educations. On Susan's complaint for contempt, the judge ruled that Lawrence had accounted for support payments by virtue of his assumption of all college tuition and related expenses. A judgment entered for Susan on Lawrence's complaint for contempt.

Susan appeals from the modification and contempt judgments in favor of Lawrence.

1. The background. We take the facts from the judge's comprehensive findings, which have ample support in the evidence. The parties' two daughters attend private colleges. The elder child entered Bard College in September, 1986; the younger child entered Bennington College in September, 1987. The expenses for their tuition, room and board approximate $35,000 per year. Lawrence has paid these amounts and, in addition, about $3,000 per year for books, clothing, transportation, and vacations. Susan has paid nothing toward the college tuition or related expenses of the children. ³

Lawrence, a business manager, earns aproximately $116,000 a year. His present wife earns an additional $45,000 annually, but is responsible for the support of two minor children. Lawrence owns real estate in Gloucester with a fair market value of $180,000-$200,000 (subject to a mortgage of $100,000), and with his wife jointly owns real estate in Andover with an approximate fair market value of $250,000 (subject to a mortgage of $200,000). Lawrence has additional assets worth approximately $75,000.

Susan, a school guidance counselor, earns approximately $41,000 annually (including alimony from Lawrence of $100 per week). She owns real estate in Rockport worth approximately $250,000 (subject to a mortgage of $120,000), and has additional assets worth $96,320. In June, 1986, Susan borrowed $100,000 from a bank which she used to purchase a one-third interest in a closely held corporation, Cove Court Gourmet, Inc., which operates a delicatessen and catering business. The loan was secured by a mortgage on her property in Rockport. Susan later incurred additional debt on behalf of the corporation in the amount of $54,000. At the time of trial, she received no income from Cove Court.

2. The modification judgment. In "modifying" the divorce judgment, the probate judge found that, despite the language of Exhibit C to the separation agreement, Susan had failed to contribute toward the college tuition or related expenses of the children. He further found that absent her voluntary assumption of substantial debt, she would have had additional funds "on hand" to contribute to such expenses. After noting that Susan "has the ability to contribute," the judge concluded that it would be inequitable to require Lawrence to be responsible for the entire college tuition bill as well as to continue payment of $200 per week as child support. The judge expressed reluctance to enforce specifically the separation agreement as, in his view, the provisions with regard to the parties' obligations for college expenses were "vague and open-ended." Rather, he found it "necessary" to modify the divorce judgment based on the presence of "countervailing equities," namely, the vagueness of the agreement coupled with Lawrence's payment of all college expenses and the wife's assumption of substantial debt. See Knox v. Remick, 371 Mass. at 437-438, 358 N.E.2d 432; Ames v. Perry, 406 Mass. at 240-241, 547 N.E.2d 309; DeCristofaro v. DeCristofaro, 24 Mass.App.Ct at 236-237, 508 N.E.2d 104. He thus fashioned a judgment in which Susan made contribution to the children's college expenses in accordance with the separation agreement by relinquishing receipt of the $200 weekly child support payments. The provision for alimony was left intact.

On appeal, Susan argues that the judge erred in modifying the divorce judgment, as the separation agreement survived the judgment with independent significance and barred modification. Additionally, she asserts that there is nothing in the judge's findings to suggest that there are "countervailing equities" which allow modification of the judgment by ordering child support at an amount different from that provided in the agreement. See Ames v. Perry, 406 Mass. at 240-241, 547 N.E.2d 309. We need not address the question whether there was a showing of "countervailing equities" sufficient to justify modification, as, notwithstanding the judge's reluctance to enforce the agreement, it is evident from his findings and judgment that that is essentially, and properly, what he did.

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