Opinion
No. 12–P–620.
2013-01-29
Denise OLIVEIRA v. Don OLIVEIRA.
By the Court (CYPHER, BROWN & COHEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff (wife) and the defendant (husband) were divorced in 2006, after fifteen years of marriage. The present action is a declaratory judgment action brought by the wife to obtain a judicial interpretation of the meaning of a provision in the parties' handwritten separation agreement, dated August 8, 2006. Except for terms relating to their children and alimony, that agreement expressly survives the judgment of divorce as an independent contract.
The provision in question states: “Wife shall receive 50% of the coverture value of Husband's military pension for the length of the marriage.”
A judge of the Probate and Family Court ruled that the provision was clear and unambiguous, declined to hear evidence outside the four corners of the agreement, and concluded that its plain meaning was that the wife was to receive one half of the value of the husband's pension based upon his rank and time of service at the time of the parties' divorce. In this appeal, the wife argues that the provision should be understood to mean that she is entitled to the benefit of postdivorce increases in the husband's rank and pay grade, or, at a minimum, that the provision is ambiguous, and an evidentiary hearing must be held to ascertain the parties' intentions. Because the interpretation of a separation agreement is a matter of law, we conduct our review de novo. See, e .g., Colorio v. Marx, 72 Mass.App.Ct. 382, 386 (2008). “If the words of a contract are plain and free from ambiguity, then they must be construed in accordance with their ordinary and usual sense.” Id. at 388, quoting from Fried v. Fried, 5 Mass App.Ct. 660, 663 (1977). However, where the language used by the parties is unclear or lends itself to ambiguous interpretation, the court may consider parol evidence as to the parties' purpose and intent. Pierce v. Pierce, 455 Mass. 286, 305 (2009). “Extrinsic evidence bearing upon the background and purpose of the parties, as well as their understanding of the meaning of particular language used in the contract, may be considered both in the construction of ambiguous contract language and in resolving uncertainties in applying the terms of the written contract to the subject matter.” Parrish v. Parrish, 39 Mass.App.Ct. 78, 86 (1991), quoting from USM Corp. v. Arthur D. Little Sys., Inc., 28 Mass.App.Ct. 108, 116 (1989).
The husband's pension vested after twenty years of military service. Although the record is silent as to the length of his military career, he represents in his brief that he has been in active service since January, 1990. In any case, it is undisputed that at the time the separation agreement was drafted, the husband had not reached the twenty-year eligible retirement mark.
We conclude that the language in question is ambiguous. While the provision plainly manifests the parties' intent that the amount of the wife's share of the husband's military pension is to be adjusted in relation to the number of years the couple were married, their intent with respect to the effect of postdivorce enhancements in the husband's position is far from clear. Had the issue not been addressed in the parties' surviving separation agreement, the division of the pension would have been for the court to determine in its discretion.
Here, however, the question is the intent of the parties, which is not readily ascertainable from the language of the provision, itself.
See Brower v. Brower, 61 Mass.App.Ct. 216, 219–220 (2004), concluding that it was within the judge's discretion to decide for purposes of asset distribution pursuant to G.L. c. 208, § 34, that the husband's retirement benefit should be calculated under the “time rule” formula, reasoning that, where a pension buy-out was not feasible at the time of divorce, “ ‘in consideration of the one spouse foregoing the present enjoyment of the benefits, he or she will share in any increase in benefits that continued employment will produce, including increase in pension benefits and salary.’ “ Id. at 220, quoting from In re Marriage of Hunt, 909 P.2d 525, 537 (Colo.1995). The exercise of discretion will be informed by considering whether the postdivorce pension enhancements were built on foundation work and efforts undertaken during the marriage, id. at 219 n. 8, or whether they appropriately should be viewed as the separate, independently acquired property of the employee spouse. “The ultimate consideration is fairness.” Id. at 222, n. 14.
We recognize that the judge opined in the alternative that even if she determined that the agreement was ambiguous, she would not have found any other division of the asset to be fair, given that the parties divided all of their other assets as of the time of the divorce, and the wife made no contributions to the husband's pay increases after the dissolution of the marriage. However, we cannot accept this alternative ground for decision. The task at hand was to determine what the parties intended and not, at that juncture, to make an independent judicial determination of the appropriate division of the asset.
We therefore vacate so much of the judge's January 4, 2012, order declaring that the wife's share of the husband's military pension is to be computed on the basis of his rank and pay grade at the time of dissolution, and remand the case for an evidentiary hearing so that parol evidence may be introduced and findings made as to the background, purpose, and intent of the separation agreement in this regard.
So ordered.