In this аppeal we are asked to consider whether the Probate Court has subject matter jurisdiction
The case was before the Probate Court on the following statement of agreed facts. The defendant and the plaintiff s mother (now deceased) were divorced in Connecticut in 1966. A separation agreement was executed and incorporated into the judgment of divorce. At the time of the divorce, the defendant was employed by Morris Alper & Sons, Inc. (Morris Alper), and had a vested interest in the amount of $18,570.41 in that company’s retirement plan. Paragraph 5 of the separation agreement, set forth in the margin,
1
contained provisions regarding this interest. Para
On December 21, 1966, the defendant left the employ of Morris Alper & Sons, Inc. In April, 1974, he authorized withdrawal of his $18,570.41 interest in the retirement fund to be used to purchase an annuity contract from the Metropolitan Life Insurance Company (Metropolitan Life). The annuity is assignable and can be surrendered by the defendant for cash value at any time. The defendant’s attorney, Frank Mongillo, is designated the primary revocable beneficiary. The plaintiff and her brother are named contingent
The judge ruled that the Probate Court had subject matter jurisdiction over a valid separation agreement entered into in another State, and that G. L. c. 215, § 6, confers jurisdiction on the Probate Court. He determined that “where, as here, a Separation Agreement between the parents is made and is for the benefit of the children as well as the parents, the children or either of them is entitled to enforcement of the Agreement.” The judge concluded that pursuant to paragraph 5 (c) the plaintiff was entitled to the sum of $9,285.20 with interest thereon “from September 14, 1976 until the date of [the] judgment as provided by law.” The defendant appealed.
Jurisdiction. The defendant claims that the allegations in the plaintiff s complaint and her request for money relief deprive the Probate Court of subject matter jurisdiction over the plaintiffs complaint. He asserts that since the plaintiff has an adequate remedy at law, there is no jurisdiсtion in equity.
General Laws c. 215, § 6,
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recognizes the special expertise the Probate Courts have developed in the areas of fam
The plaintiff is sеeking equitable relief relative to a matter enumerated in the statute and cognizable under the general principles of equity jurisprudence. The complaint alleges fraud by the defendant in transferring certain funds into an annuity plan, in violation of a separation agreement entered into by the plaintiffs parеnts. The plaintiff also asks the court to establish a constructive trust of the assets which should have been placed in trust under paragraph 5 (c). In substance, the allegations suggest that the defendant is violating a fiduciary duty toward his daughter in failing to give due recognition to her interests under paragraph 5 (c). The fact that the plaintiff included in her complaint a prayer that the defendant be ordered to compensate her directly does not remove the case from the Probate Court’s jurisdiction. “Relief is based on the allegations of a bill, and not on its prayers.”
Commonwealth
v.
DeCotis,
Further, the Massachusetts Rules of Civil Procedure permit a litigant to assert separate claims in a complaint, regardless of whether they are legal or equitable. Mass. R. Civ. P. 8 (a) (2),
The fact that the relief ultimately awarded by the Probate Court was direct payment of a sum of money from the
Construction of the separation agreement. The Probate Court judge found that, by the terms of paragraph 5 (a) of the separation agreement, the defendant irrevocably divested himself of all right or interest to the extent of $18,570.41 in the Morris Alper retirement plаn. The judge held that the defendant was required to place that amount in trust for his wife and children at the time of his severance from the plan and that the trustee had no authority to disburse the $18,570.41 except in compliance with paragraph 5 (c). The judge concluded that, at the time of the death of the plaintiff s mother on September 14,1976, the defendant or trustee was obligated to disburse one-half of the money to the plaintiff.
On the other hand, the defendant asserts that, if paragraphs 5 (b) and 5 (c) are read together in the context of the entire agreement, it is evidence that it was the intent of the parties that the defendant receive рayments from an annui
When an element of ambiguity appears in a written instrument, we consider the entire instrument and the general scheme it reveals to determine the significance and meaning of the ambiguous terms. See
MacDonald
v.
Gough,
At the time of the divorce, the defendant was required to execute the documents needed to effectuate the provisions of paragraphs 5 (a), (b), and (c). He failed to do so. Hе now argues that the annuity contract he purchased from Metropolitan Life effectuates the same purpose as the trust which should have been created under paragraph 5 (c). Further, he argues that paragraph 5 (b) expressly reserves in him the right to receive his interest in the fund as an annuity until his death.
We agreе that under paragraph 5 (b) the defendant could' have elected to receive his interest in the retirement fund as an annuity. However, he was required by the separation agreement to execute documents making that election at the time of the divorce. He did not do so. Moreover, the de
Since the annuity contract does not meet the requirements of paragraph 5 (b), the withdrawal of the fund with which it was purchased must be viewed as a severance from the Morris Alper plan. In the event of a severance, paragrаph 5 (c) requires the defendant’s interest in the Morris Alper plan to be placed in trust for his wife and children. At the defendant’s death 8 the trust would have provided alimony payments to the wife during her life or until she remarried and would then go to the children.
The annuity contract which the defendant purchased with the funds does not fulfil the general scheme set forth in paragraph 5. The money was not placed in a trust for the protection of the wife. The annuity purchased may be assigned or surrendered for cash value at any time and therefore is contrary to the provisions of paragraph 5 (a). See note 1,
supra
. The defendant failed to comply with the
So ordered.
Notes
“5. The Husband, at the present time, has a vested interest in The Morris Alper & Sons, Inc. Profit Sharing Retirement Plan And Trust in the amount of $18,570.41. Upon the entry of a decree of divorce, the Husband shall forthwith execute any and all instruments or documents necessary to effectuate the following in regard to the Morris Alper & Sons, Inc. Profit Sharing Retirement Plan and Trust:
“a) A waiver of any right of аssignment, alienation, sale, hypothecation or surrender of his interests to the extent of $18,570.41 in said fund excepting upon the express written consent of his wife, Jean Bruce Green-leaf.
“b) An election to receive upon retirement that portion of the fund to the extent of $18,570.41 as an annuity waiving any right to accept a lump sum payment excepting on the written consent of his wife, Jean Bruce Greenleaf.
“c) To provide that upon his death or his severance from the Profit Sharing Retirement Plan and Trust prior to his death that his death benefits or severance benefits to the extent of $18,570.41 shall be paid to Frank Mongillo, Esq., 185 Church Street, New Haven, Connеcticut, or his successor as Trustee for the benefitrof Jean Bruce Greenleaf to pay to her in weekly installments the amount equal to the amount of alimony
Paragraph 9 of the separation agreement provides in part: “Each party for himself or herself or his or her respective personal representatives agree that he or she will at any time and from time to time hereafter take any and all steps and execute and deliver any and all instruments, Agreements, conveyances, Wills and insurances which the other party or his or her personal representative shall reasonably require for the purpose of giving full force and effect to the provisions and the intent and purpose of this Agreement, and so that the parties may act regarding their real and personal property exactly as if they were single and unmarried.”
The plaintiff s original complaint prayed for recovery in the amоunt of $18,570.41, plus costs and interest. The complaint was amended to set the amount at $9,285.21. The plaintiffs brother makes no claim on the other half of the $18,570.41.
General Laws c. 215, § 6, as appearing in St. 1975, c. 400, § 55, provides in part: “Probate courts shall have original and concurrent jurisdiction with the supreme judicial and superior courts of аll cases and matters of equity cognizable under the general principles of equity jurisprudence and, with reference thereto, shall be courts of general equity jurisdiction ....
“Probate courts shall also have jurisdiction concurrent with the supreme judicial and superior courts, of all cases and matters in which equitablе relief is sought relative to: ...
(in)
trusts created by will or other written instrument; ...(«) trusts created by parol or constructive or resulting trusts. . . . They shall also have jurisdiction to grant equitable relief to enforce foreign judgments for support of a wife or of a wife and minor children against a husband who is a resident or inhabit
The comрlaint also asks the Probate Court judge to declare that the funds segregated by paragraph 5 were held in trust. Hence, the Probate Court also had jurisdiction under G. L. c. 231A, § 1, to make a declaration of rights and duties under the separation agreement apart from the issue of appropriate relief.
A separаtion agreement executed and incorporated into a divorce decree in another State is enforceable in equity in Massachusetts.
Lipman
v.
Sprague,
Since we conclude there is jurisdiction in the Probate Court, we leave open the question whether a judge faced with a serious jurisdictional issue must dismiss a complaint оr whether the proper procedure is for a judge to ask the Chief Administrative Justice to transfer the case, or the judge, or both, to the appropriate department. See G. L. c. 211B, § 9, inserted by St. 1978, c. 478, § 110. See also G. L. c. 211, § 4A.
The language of paragraph 5 (c) is not entirely clear, but we read the language specifying thаt alimony payments from the trust fund were to be in the amount paid by the defendant at the time of his death as indicating that the parties intended payment to be made from the trust only after the death of the defendant. The defendant argues that, if this interpretation is correct, the $18,570.41 is “frozen” during the time between his retirement and his death, as he would receive no annuity and his wife could not be paid from the fund until after the defendant’s death. He argues that unless he was receiving an annuity, the alimony payments, determined as a percentage of his gross income, would be drastically reduced after his retirement, and neither party would have use of the funds segregated by paragraph 5. Thus, the defendant argues, the parties must have intended that he receive the fund as an annuity rather than place it in trust. The short answer to this argument is that, if the defendant had fulfilled his obligations under paragraphs 5 (a) and 5 (b) rather than severing himself from the retirement fund, he would have received the annuity and the terms of paragraph 5 (c) as we read it would not have applied.