22 Mass. App. Ct. 331 | Mass. App. Ct. | 1986
In September, 1983, the plaintiff was granted a judgment of divorce nisi from the defendant. The
In February, 1984, the plaintiff filed a complaint in the Superior Court seeking specific enforcement of a separation agreement signed by both parties, which, despite a provision stating that its terms were to be incorporated in any ensuing divorce or separate support judgment, had not been presented to the probate judge by either party. The separation agreement, like the judgment nisi, called for the defendant to transfer his interest in the marital home to the plaintiff, but, unlike the judgment nisi, it made no provision for a compensatory payment from her to him. The agreement made no provision for periodic support payments but contained what may have been approximate equivalents.
The defendant cites no authority for his contention that the failure of either party to present the separation agreement to the probate judge for incorporation in the judgment nisi had the legal effect of discharging the agreement. The terms of the agreement imply that it is to survive whether incorporated or not. The general enforceability of such an intention is beyond question. See Schillander v. Schillander, 307 Mass. 96, 98 (1940); Knox v. Remick, 371 Mass. 433, 435 (1976); Stansel v. Stansel, 385 Mass. 510, 513-515 (1982); Moore v. Moore, 389 Mass. 21, 25 (1983). On general principles the failure of the parties to bring the separation agreement to the attention of the probate judge could be corroborative of other evidence tending to show an agreement or understanding on their part to abrogate the separation agreement in its entirety. Here there was no evidence offered of such an agreement or understanding between the parties.
The form of the judgment is objectionable due to its generality (“The defendant . . . shall comply with the terms of the [separation agreement]”). An order of specific enforcement, like any injunctive order, should be clear and unequivocal so as to lay a proper foundation for a contempt action. Nickerson v. Dowd, 342 Mass. 462, 464 (1961). It should be tailored to the precise relief sought, avoiding general or vague terms or legal conclusions. It should be complete on its face and not require resort to the evidence to ascertain its meaning. Inspector of Bldgs, of Provincetown v. Eder, 11 Mass. App. Ct. 1011 (1981). Incorporation of documents by reference should be avoided where possible.
The judgment should be amended so as to order the defendant to transfer his interest in the home to the plaintiff, appropriately conditioned (see note 7, supra) on her tendering the $27,000 (which is now payable under the terms of the judgment nisi), and to execute a beneficiary form naming the plaintiff his beneficiary under the teachers’ retirement system. As so modified, the judgment is affirmed.
So ordered.
In 1983 the home was assessed at $60,000 by the assessors of Williamsburg.
In January, 1985, the daughter would become twenty-one years old. A younger child would not require support because he was about to join the Army.
The defendant was forty-eight years old, was a public school teacher, and was a member of the Massachusetts Teachers’ Retirement System. His earnings were $22,000 as a teacher, supplemented by $4,000 to $5,000 as a carpenter. The plaintiff had been employed for seven years as a secretary-typist and earned $11,804 per year.
In particular, the defendant was to pay for the children’s educational expenses to age twenty-two and was to pay all bills relating to the home (heat, taxes, utilities, etc.) until all of the children were emancipated. The defendant was, however, permitted under the agreement to live in the home until that time.
The agreement itself contained a severability clause.
The plaintiff filed for divorce, and the divorce was granted, under G. L. c. 208, § 1. There is no suggestion that the agreement was drafted or executed in contemplation of a divorce proceeding under § 1A (inserted
The defendant does not dispute his obligation to transfer his interest in the marital home to the plaintiff. The plaintiff does not contest her obligation under the divorce judgment to compensate the defendant in the amount of $27,000 as of June 30, 1985; and, in any event, a judge asked to order specific performance has considerable discretion in conditioning the enforcement order to avoid inequity. Roberts-Neustadter Furs, Inc. v. Simon, 17 Mass. App. Ct. 262, 270-271 (1983).
The result in the Utley case would have been different under the 1981 amendment, which provided that a pension or retirement allowance might be “attached, taken on execution, assigned, or subject[ed] to other process to satisfy a support order under [G. L. cc. 208, 209, or 273].” The only such order in this case has been fully complied with and expired after January, 1985.
Under § 12 certain options substantially exhaust available benefits during the lifetime of the member. Others (in exchange for reduced pension benefits to the member) can vest a beneficiary with a separate pension after the death of the member.
The executed agreement was dated (in handwriting) April 22, 1982, both at the top and next to the plaintiff’s signature. No date appears next to the defendant’s signature. TTie wife testified that she held the signed agreement for a period of time in the hope of avoiding the necessity for filing the divorce action. The unsigned draft inferentially came into existence after the divorce action had been filed (September, 1982), because it bears the probate docket number in what appears to be the original typing. The form for notarization has a 1983 date typed in.