Opinion
16-P-153
03-29-2017
Cliff LONDON v. Laura LONDON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from an order striking his statement of objections under Mass.R.Dom.Rel.P. 58(c), to a judgment of divorce nisi becoming absolute. The divorce judgment incorporated but did not merge provisions for alimony in a separation agreement (agreement). The husband alleges that the agreement was not fair and reasonable and that he did not understand it. We affirm.
Background . After twenty-one years of marriage, the husband and the wife filed a joint petition for divorce based on an irretrievable breakdown in the marriage. The petition asked the judge to (1) approve the parties' agreement, (2) incorporate and merge those provisions of the agreement that relate to the three children of the marriage, and (3) incorporate but not merge those portions of the agreement that set forth the parties' obligations to each other.
The parties' March 5, 2014, agreement states that each party "has read, and each understands, all the provisions" thereof, and that "each believ[es] its terms to be fair and reasonable." The agreement outlines the husband's alimony obligations and contains waivers by both parties of the right to seek a modification, subject only to the right to invoke the agreement's dispute resolution procedure "in the event of a major involuntary financial reversal for either of [the parties] as defined in paragraph H." The parties agreed to present a copy of the agreement to a judge and to "request the court to incorporate" it in the judgment of divorce, they "acknowledge[d] that [their] respective legal advisors ha[d] explained to [them] the meaning and legal significance of the concepts ‘merger’ and ‘survival,’ " and they stated that they had "designed [the] Separation Agreement accordingly."
Paragraph H defines "involuntary financial reversal" to include "a major uninsured illness or the inability to find work after reasonable search or market conditions beyond the control of either of [the parties] making it impossible for [the husband] to earn an appropriate living."
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Less than one month later, on April 10, 2014, the parties appeared before a Probate and Family Court judge for a hearing on their petition. The judge reviewed with the pro se parties the provisions of the agreement, and the following exchange ensued:
JUDGE : "So your terms of the alimony obligation terminating, you have the first to occur the death of either of you provided there is life insurance. There are other provisions within the law and I'm assuming that both attorneys reviewed those with you, is that correct?"
HUSBAND : "Yes."
WIFE : "Yes."
JUDGE : "In terms of cohabitation and remarriage that is not for review [inaudible] triggering event to terminate alimony?"
HUSBAND : "It continues, yeah."
JUDGE : "Okay. And you indicated in your status of the agreement that because you have a—you survive the alimony issue which means that you will be paying that alimony going forward, sir, regardless of your job situation or your life situation or her life situation, do you understand that?"
HUSBAND : "Yes."
JUDGE : "So if your current wife remarries Warren Buffet then you're still paying that alimony, do you understand that?"
HUSBAND : "I understand that."
JUDGE : "Do you understand that if you lose your job you're still paying that alimony?"
HUSBAND : "I understand that."
The judge asked the husband how he was able to make the alimony payment and the husband responded that "[i]t's a question that [he] expected [the judge] to ask." The husband told the judge that he had vested interests in five developments, and the money he expected to receive from them "is real." The judge asked the husband to add those assets to his financial statement because "one of the jobs [she has is] to find that this agreement is fair and reasonable." The husband also acknowledged that the wife had no obligation under the agreement to refinance the former marital home, and that he understood "that if [the wife] fails to make [the mortgage] payments that [he is] still obligated on that."
The husband agreed that he had reviewed and understood the agreement. He stated that he was satisfied with the advice he received from counsel, that he signed the agreement freely and voluntarily, and that the agreement "is fair and reasonable to" him. "Based on the testimony that [was] given and reviewing the documents," the judge allowed the parties' petition for divorce. A judgment of divorce nisi subsequently entered in accordance with the joint petition, with two additional statements: (1) "Husband explicitly acknowledges Paragraph H does not change the surviving nature of his alimony obligation"; and (2) "Husband further acknowledges that the Agreement contains no provision requiring Wife to refinance the mortgage on [the former marital home] nor for her to sell it if she fails to timely pay the mortgage."
Several days before the judgment of divorce nisi was to become absolute, the husband filed a statement of objections supported by an affidavit in which he stated that he felt "pressured into signing" the agreement "to just finish the proceedings so that we could move on." The husband asserted that he "was not given any advice or guidance as to the law before signing the agreement," and that he "did not learn until after [the] divorce hearing that [he] would not be able to modify [his] support obligation in the future" by virtue of paragraph H. After a hearing, the judge struck the husband's objections. The husband appeals.
Discussion . "[A]n appeal properly may be taken during the nisi period solely from the dismissal of rule 58(c) objections, where the objections are based on circumstances that became known only after entry of" an order approving a separation agreement. Saltmarsh v. Saltmarsh , 395 Mass. 405, 410 (1985). The circumstances of which the husband allegedly became aware after the April 10 hearing are that his alimony obligation is continuing, that the wife is not obligated to refinance the mortgage on the former marital home, and that his counsel no longer practices law due to a disciplinary resignation. The husband's arguments are "frivolous." Dominick v. Dominick , 18 Mass. App. Ct. 85, 93 n.8 (1984). There are no allegations that the attorney's resignation bore any relation to the husband's case or the advice he (the attorney) rendered in connection therewith. "There is nothing to substantiate the claim [in the husband's affidavit] that [he] was under any misapprehension as to the contract," Gifford v. Gifford , 354 Mass. 247, 249 (1968), where, in open court and under oath, the husband expressed a crystal clear understanding of the specific provisions he now challenges. "The parties heard the agreement read and, in response to the clear questions of the judge, indicated that they entered the agreement freely, that it was not the product of fraud, that each had full knowledge of the assets and liabilities of the other, that each had been advised by counsel as to the meaning of [merger and survival,] and that each was satisfied with the agreement." Dominick v. Dominick , supra at 88. "The general rule is that, in the absence of fraud, one who signs a written agreement is bound by its terms whether he reads and understands it or not or whether he can read or not."Gifford v. Gifford , supra at 248, quoting from Cohen v. Santoianni , 330 Mass. 187, 193 (1953).
The judge was not "required to make an independent finding that the agreement was fair and reasonable before incorporating it in the judgment [ ]," Dominick v. Dominick , supra at 91-92, because, in accordance with the agreement's terms, both parties asked the judge to enforce it. On this record, it is clear that the husband "manifestly was aware on [April 10] of the matters later tendered in support of the" objections, Innis v. Innis , 35 Mass. App. Ct. 115, 117 (1993), and the judge properly rejected his " ‘morning after’ effort to retreat from an agreement now thought to be ill-advised." Id . at 118.
Order striking statement of objections to divorce nisi becoming absolute affirmed .