8 Mass. App. Ct. 875 | Mass. App. Ct. | 1979
Prior to their divorce on March 28, 1969, by a decree of the District Court of the Virgin Islands, the parties had entered into a "settlement agreement” which provided that the wife would bear the ongoing burden of supporting the children and would receive no alimony but that the husband would transfer certain of his assets to a trust for the ultimate benefit of the children. The husband admits that, at the time ‘he executed the agreement, he had no intention of carrying out its provisions. By this action in the Superior Court the wife sought and obtained a judgment ordering the husband to comply, as nearly as is now possible, with his obligations under the agreement. 1. The husband’s first contention on appeal is that the agreement was merged in the divorce decree and may no longer be enforced as a contract. Such a result might be inferred by considering in isolation the words, "In the event all or any portion of this [ajgreement is not incorporated in [a contemplated] divorce decree, this [ajgreement shall survive as a binding [ajgreement upon the parties hereto ...;” but the words in context and in light of the circumstances are to be read as merely indicating an intention by the parties that the provisions of the agreement should remain enforceable in the event that the court should decline to incorporate all or any portion in the divorce decree or should enter a decree imposing alimony or support obligations inconsistent with those of the agreement. Absent Virgin Islands’ authority on the point, we assume that its law is the same as ours. See Mass.R.Civ.P. 44.1, 365 Mass. 809 (1974); Commercial Ins. Co. v. Pacific-Peru Constr. Corp., 558 F.2d 948, 952 (9th Cir. 1977), construing the equivalent Federal rule, Fed.R.Civ.P. 44.1. See also Commercial Credit Corp. v. Stan Cross Buick, Inc., 343 Mass. 622, 625 (1962). Our law is that "as a general rule, unless the parties expressly provide otherwise, their separation agreement will be held to survive a subsequent divorce decree incorporating by reference the terms of the agreement” (emphasis supplied). Surabian v. Surabian, 362 Mass. 342, 345-346 n.4 (1972). Feakes v. Bozyczko, 373 Mass. 633, 634 n.2 (1977). 2. The children, as third-party beneficiaries of the settlement agreement, were
Judgment affirmed.
