*1 Larson v. Larson.
Judy R. Larson vs. Richard A. Larson.
No. 93-P-466. Middlesex. June 9, 1994. 1994. July Brown, Fine, Porada, Present: & JJ. Separation, Separation agreement, Alimony, Divorce and Modification of Contract, judgment. agreement. Separation probate judge properly interpreted A alimony provision separation in a agreement judgment independent sig- that survived the of divorce with nificance, providing pay percentage the husband a of his earned alimony, properly provide ordered the husband to a rea- income alimony, sonable amount of where the husband had decided on his own years to retire in health from a successful career some before his income, stopped normal retirement and thus without hav- ing provision support. made some other for his former wife’s [108-111] Brown, J., concurring.
Complaint for divorce filed in the Middlesex Division of the Probate and Court on June 1979. Family Department modification, 15, 1992, A filed on for complaint January was heard Edward M. J. Ginsburg,
Edwin C. Hamada for Richard A. Larson. R.
Barry Connelly J. Larson. Judy Fine, a J. are called to decide whether upon probate judge ordering erred in notwith- alimony, in the standing provision contrary parties’ a apparently judgment which survived was re- significance. divorce with independent month quired by pay per child the emancipation unallocated until support children, of the three and thereafter youngest couple’s in- at the rate of of his annual earned thirty percent gross child became emancipated May come. youngest earned claiming longer 1991. The that he no had income, no since that time. In paid January circumstances, filed a alleging changed peti- *2 tion for modification. The case was tried in the Probate Court before the same who had over the di- judge presided wife, vorce. He ruled in favor of ordering the the husband to pay alimony. Claiming that the barred modification, the husband appeals.
The background the is set forth in Larson v. dispute Larson, 28 Mass. (1990), Ct. 338 and Larson v. Lar App. son, 30 two actions contempt brought before the same under the same judge separation agreement. She prevailed both actions at trial facts, and on appeal. those repeat only undis essentially which puted, bear on the present controversy.
In divorced, when the were the husband parties had $90,000 been as a and working surgeon In annually. addition, he had unearned income in the amount of approxi- $10,000 $593,000. mately assets worth approximately homemaker, The wife was a her husband dependent upon for support, with a modest amount of assets. the time of By the modification, on hearing the petition to the according judge’s findings, health, the although had retired from the practice of medicine and leading a life of leisure. His unearned income had increased to approxi- $50,000 mately and his annually, assets had increased in value $1,000,000. wife, approximately fifty-seven health, in good was working as a museum tour guide. She $97 was earning per week and had unearned income in the $104 amount of assets, week. In per addition she had princi- pally the marital gained settlement, home in the divorce $400,000. worth
The parties’ separation agreement states unequivocally their intent to have it survive with independent legal signifi- cance and govern their respective obligations “even though future events might occur that would alter the of ei- position ther party as it exists today,” thereby protecting against each the other attempts by the terms. vary ordered the in the amount judge month, roughly of the husband’s per thirty percent income, death, then-current unearned until his the death of or her whichever should remarriage, occur earliest. decision, In his memorandum judge stated' ques- tion to be decided: “whether the of countervailing concept enough is to afford relief in the circum- equities expansive stances the husband’s Ruling against of this case.” position, stated: judge agreement] husband’s interpretation
“[the an undue and reduction the standard place hardship Court, she nor living of the wife which neither *3 which on the fairness of the passed original agreement, would thing It is one to ex- reasonably anticipated. clude unearned income as a source of when the alimony surgeon husband was a successful with of many years him mat- productive earnings before but another quite ter when that husband at the of ... fifty-five excellent health retires in order to voluntarily pursue retire, another The husband is entitled to but lifestyle. he is not entitled to the total economic burden place that act his former wife of voluntary upon many years who of a lack of and the loss earning capacity because at a in time where she could not alimony point put aside for her later is not rendered a enough years public charge living but is reduced to modest standard of very well below that to which she was accustomed both dur- ing and after the marriage.” recognize seeking that a modification an ali- party has a surviving agreement in a mony provision Something change burden. more than a material heavy v. McCarthy McCarthy, circumstances must be shown. See is re- showing 36 Mass. Ct. A App. that, modification, the modifi- spouse seeking without quired O’Brien v. charge, cation will otherwise become a see public O’Brien, that the other (1993), party 416 Mass. not with the of the see Knox agreement, complied provisions 37 Mass. Remick, 433, or that there are
v. “at least as two countervailing as equities compelling [those] Stansel, ...” Stansel v. grounds. case in wife is
(1982). This is not a which the threatened the husband’s two becoming charge. Although with a public countervailing bear on the issue of prior contempts may equi- ties, think, recognized, we the issue is as the judge implicitly in the usual countervailing not existence of sense equities “in accor- but proper interpretation justice dance with and common sense and inten- probable Frisbee, of the parties.” tion Whelan Ct. 76, 81 (1990). we On what believe to be the proper interpre- obligations tation husband’s under the order for of some alimony appropriate.
We assume that both parties reasonably contemplated the time the bargain was reached either continue to work in his over the course of profession his normal work life as he expectancy, long remained in health, or make some other arrangement the wife’s support.1 Barry Contrast Barry, 409 (1991) (wife agreed which would terminate when O’Brien, husband reached O’Brien v. sixty-five); Mass. at 479-480 (wife agreed that would end approxi five mately and one-half from the date of the years *4 judgment).
“Every contract each a of imposes upon party duty good and faith fair in its and dealing its enforce performance ment.” (Second) (1979). Restatement of Contracts 205 § Ins., See Warner Ins. v. Co. Commissioner 406 Mass. of 354, Boston, 362 n.9 from v. quoting Kerrigan 361 24, Mass. 33 This been (1972). in principle recognized commercial Massachusetts in situations. See Center Garment Co., 633, v. United Co. 637 Refrigerator (1976); Co., 96, v. Fortune National Mass. Register Cash 373 104 1 Court, In an acknowledges affidavit to the Probate submitted that, separation at the time she into the entered it was her retire, understanding and expectation that her husband would at the earli est, when sixty-two. he turned 37 106
110 Ct. Four, Assocs., (1977); Pier Inc. v. 411 Anthony’s HBC 451, (1991). 471-472 See also Heinrich v. R.L. Oil & Co., 1989). Gas The is at (S.D. N.W.2d principle least as in the context of a marital separation applicable agreement. See 127 A.D.2d Lavington Edgell, (N.Y. violated covenant of faith and fair 1987) (wife good dealing agreement by under terms separation depriving husband of notice and to opportunity purchase property); Clark, 289 Md. Trust Co. v. Wilmington dealing faith and fair (1981) (although good covenant does in suicide of husband may apply separation agreements, covenant). not constitute breach of the Cravero Compare Ch. At the heart of (Del. 566 A.2d Holleger, “ understanding is the mutual ‘that neither covenant destroying shall do that will have the effect of party anything or of the other to receive the fruits injuring right party Four, . . .”’ Pier Inc. v. HBC As Anthony’s the contract. socs., 471-472, Ro 411 Mass. at from Drucker v. quoting Assocs., land Wm. Hav Jutras of his to his ing agreed earnings a pay portion support his former the husband violated a breach of duty faith in the circumstances when he decided on his own good while in his mid-fifties and retire from a successful career some other for his making provision health without her former wife’s That decision the wife of deprived support. fruits of the reasonably anticipated Re bargain.” amounted to an “evasion of the spirit comment d. (Second) statement of Contracts § order was reasonable amount. judge’s alimony of the husband’s thirty amount was less than percent less than considerably thirty unearned income time of the divorce. The of his earned income percent terminate, however, should no later than the husband’s order reaching age.2 the normal retirement *5 1, affidavit, supra, see note the Because of the wife’s admission in her Although sixty-two. would be husband’s normal retirement in this case so, however, alimony obligated paid husband no for the he was to do the 1991, May the date on which the period seventeen-month between should the be judgment modification Accordingly, “until the defendant’s reach adding the words amended after the “month” in ing the normal retirement word age” the judgment. third line of one of modification the paragraph amended, so the affirmed.3 judgment As is
So ordered. I in with the (concurring). fully J. am accord Brown, However, it majority. well-reasoned the seems to opinion First, me that a few are additional observations warranted. better obviated the draftsmanship likely most if (but not the is problem litigation prior any experience Second, guide). I am amazed that an surgeon af- orthopedic filiated in with a was private hospital only Massachusetts $90,000 And I think it was annually.1 lastly, patently unfair to the for a healthy, medical spouse productive spe- cialist to retire without his abruptly former forewarning where, here, spouse, particularly, as the percentage income based, factor on which her is is to zero. reduced If the husband knew at he the time entered into the agree- and, thus, ment that he would retire prematurely have no earned income time the in alimony provision issue effect, would come into one could infer that it easily was de- ceitful in those him circumstances for not to have indicated known, that to his wife. she knowledge given Had hus- youngest emancipated, child became and the effective date order, Thus, order, October 1992. in fairness to the insofar as requires payments it until reaches “the normal retirement age,” interpreted requiring payments should be to continue for an beyond period sixty-second additional seventeen-month the husband’s birthday. may The wife submit to this a motion court for counsel fees within thirty days rescript, after proce issuance our accordance with the Castro, Mgmt. of Yorke requirements dural $144,000, surgeons 1The figure mean income for Census, increased to over 1990. U.S. Bureau of the Statistical Abstract of the United States Medical No. Practice Characteris tics, by (113th Speciality: Selected ed. *6 37 Mass. time,
band’s substantial means at the she obviously Although a different financial settlement. sought is reluctant to assume such deceit on the majority part conduct is it seems to me that when the husband’s viewed in its basis for the wife’s totality adequate appears avoiding agreement. emotional, and oft- “games” spouses play highly See, irrational, cease to amaze.
times divorce situations never e.g., Kennedy Kennedy, However,
where, here, incarnations. unlike there were four rules, even if the are not parties prepared play “we (and it) divorce bar must mean say step up which not is ethical and sound only won’t play anymore,” self-interest, the re- enlightened given but professionalism,2 Steele, cent decision of Avery regard accompanying comments Standards of Conduct and 2See in this Advo Academy Lawyers, Bounds of in American of Matrimonial set out Inker, Kindregan Family Law and Practice cacy (1991). & See also (Supp. 11.1 §