Opinion
15-P-487
02-23-2016
LAWRENCE R. DEHNER. v. BONNIE L. DEHNER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The husband appeals from the judgments dismissing his complaint for modification and complaint in equity seeking to terminate, due to countervailing equities, his alimony obligation. We affirm.
"If a judge rules, either at the time of the entry of a judgment nisi of divorce or at any subsequent time, that the agreement was not the product of fraud or coercion, that it was fair and reasonable at the time of entry of the judgment nisi, and that the parties clearly agreed on the finality of the agreement on the subject of interspousal support, the agreement concerning interspousal support should be specifically enforced, absent countervailing equities." Knox v. Remick, 371 Mass. 433, 436-437 (1976). Countervailing equities include situations where one spouse is or will become a public charge, or where there has been a failure to comply with the agreement. Id. at 437. Countervailing equities may also be found on other grounds "at least as compelling as" those discussed in the Knox decision. Stansel v. Stansel, 385 Mass. 510, 516 (1982). See Hurlbut v. Hurlbut, 40 Mass. App. Ct. 521, 526 (1996). "[A] party seeking modification of an alimony provision in a surviving separation agreement has a heavy burden. Something more than a material change of circumstances must be shown." Larson v. Larson, 37 Mass. App. Ct. 106, 108 (1994). "A policy of enforcement supports finality and predictability, allows the parties to engage in future planning, and avoids recurrent litigation in the highly charged emotional area of divorce law." Ames v. Perry, 406 Mass. 236, 240-241 (1989).
With these legal principles in hand, we turn to the specifics of this case. After twenty years of marriage, the parties, each of whom was represented by experienced counsel, were divorced by judgment nisi dated September 12, 1990. Their separation agreement was incorporated, but not merged, into the judgment and the "intention of the [p]arties [was] that the [a]greement shall survive independently from said [j]udgment and shall retain independent legal significance." The divorce judge incorporated into the judgment of divorce nisi findings that the agreement was voluntary and not the product of fraud or coercion, that it was fair and reasonable, and that the parties agreed to the finality of the agreement on the subject of interspousal support. Where, as here, a separation agreement, fair and reasonable at the time of the divorce and not the product of fraud and coercion, is incorporated into the judgment of divorce nisi but retains legal significance, more than a material change of circumstances is required before a judge is justified in modifying the agreement. See Stansel v. Stansel, 385 Mass. at 515; Dwight v. Dwight, 52 Mass. App. Ct. 739, 744 n.6 (2001); Cabot v. Cabot, 55 Mass. App. Ct. 756, 761 (2002).
As the parties so stipulated in the agreement.
The husband's complaint for modification and separate complaint in equity sought to terminate his alimony obligation based on countervailing equities. The modification complaint alleged that "the former wife has amassed substantial assets and interest in different corporations, as a result of inheritance and trust beneficial interests which she misrepresented and fraudulently failed to fully and completely disclose at the time of the divorce." The equity complaint set forth in greater detail the husband's allegations of fraud and misrepresentation at the time of the divorce. The allegations of both complaints could well be foreclosed by the terms of the separation agreement as set out in the margin.
"Each Party has carefully considered the future projected income, financial resources, liabilities and expenses of the other and of themselves, and the within Agreement is executed based upon the said knowledge of each. Thus, the Husband and the Wife acknowledge, represent and declare that any non-willful omission or error or failure of either party to disclose any asset, liability, expense or income shall not be deemed to have been a fraudulent representation sufficient to justify voiding of the obligations of the Parties under the provisions of the within Agreement. It is agreed and understood by the Parties that they have been afforded the opportunity for full discovery of any and all pertinent data with regard to the income, assets, liabilities and expenses of the other, and that each executes this Agreement based upon the discovery conducted, and his or her personal knowledge."
However, we do not rest our decision on that basis but rather agree with the reasoning of the judge who determined that the facts, taken in the light most favorable to the husband, as a matter of law do not amount to countervailing equities or to fraud on the court. See Sahin v. Sahin, 435 Mass. 396, 399-406 (2001).
For the reasons set out above, the judgments dismissing the complaints are affirmed. Furthermore, the wife's request for an award of appellate attorney's fees and double costs is allowed. In accordance with Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the wife may, within fourteen days of the rescript, submit an application for attorney's fees and costs with the appropriate supporting materials. The husband shall have fourteen days to file a response to that application.
Judgments affirmed.
By the Court (Green, Wolohojian & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 23, 2016.