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SJC-11726

                GEORGE J. RODMAN    vs.   ROBERTA RODMAN.



           Norfolk.       October 6, 2014. - January 30, 2015.

Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines,
                                   JJ.

Divorce and Separation, Alimony, Modification of judgment, Separation
     agreement. Statute, Retroactive application.



     Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on March 12, 2008.

     Following the filing of a complaint for modification on November
14, 2013, a question of law was reported by Gregory V. Roach, J.

     The Supreme Judicial Court granted an application for direct
appellate review.


     David E. Cherny (Thomas D. Ritter with him) for the husband.
     Michael P. Doherty for the wife.


     DUFFLY, J.       The former husband, George J. Rodman, brought a

complaint for modification in the Probate and Family Court, seeking

to terminate certain obligations to his former wife, Roberta Rodman,

arising under a separation agreement the parties had entered into in

connection with their divorce.      The divorce judgment nisi, which

entered in April, 2008, incorporated and merged into that judgment
                                                                    2

the provision at issue here, obligating George to pay alimony to

Roberta in the amount of $1,539 per week.1    During the pendency of

the modification proceeding, George filed a motion seeking immediate

termination of the alimony payments on the ground that he had reached

"full retirement age" as defined by G. L. c. 208, § 48, which was

enacted by St. 2011, c. 124 (alimony reform act or act).   The motion

asserted that the alimony reform act became effective March 1, 2012,

and that George therefore was entitled to termination of the alimony

order pursuant to G. L. c. 208, § 49 (f) (retirement provision), which

provides that "general alimony orders shall terminate upon the payor

attaining the full retirement age."

     A Probate and Family Court judge denied the motion and then

reported the following question to the Appeals Court:

          "Whether or not [G. L. c. 208, § 49 (f),] is to be applied
     retroactively to judgments entered before March 1, 2012."

We granted the plaintiff's application for direct appellate review.

     The plaintiff presents an argument that differs somewhat from

that in Chin v. Merriot, ante at      (Chin), concerning whether, and

in what circumstances, the retirement provision may be applied to

modify an alimony judgment that was in existence when the alimony

reform act became effective.   He argues that, because his agreement

merged with the judgment, it was, under applicable law, always subject


     1
       Because they share a last name, we refer to George J. Rodman
and Roberta Rodman by their first names.
                                                                     3

to modification based on his having reached the age of retirement,

and therefore that his complaint for modification does not derogate

from the proscription against retroactive application set forth in

the alimony reform act.

     Background.   Our summary of the facts is drawn from the statement

of uncontested facts set forth in the judge's reservation and report,

supplemented by undisputed facts in the record.     The parties were

married on March 1, 1969, and have two adult children.     At the time

of the divorce in April, 2008, they had been married for thirty-nine

years.   The parties entered into a separation agreement that

obligated George to pay Roberta alimony in the amount of $1,539 per

week, and further provided that, "[t]he Husband's obligation to pay

alimony to the Wife shall terminate upon the death of the Husband,

the death of the Wife, or the remarriage of the Wife, whichever first

occurs."2   Except as to provisions relating to property division,

the agreement was incorporated into and merged with a judgment of

divorce nisi that entered on April 28, 2008, and became "absolute,"

or final, "ninety days from the entry thereof," on July 23, 2008.

G. L. c. 208, § 21.

     George filed a complaint for modification in November, 2013,


     2
       Under the terms of the agreement, George also was obligated
to reimburse Roberta's employer for the cost of maintaining medical
insurance coverage for the parties, and to maintain life insurance,
naming Roberta as sole beneficiary, with a death benefit in the amount
of $650,000.
                                                                     4

seeking to terminate his obligations to (1) pay alimony to Roberta,

(2) reimburse her for the costs of health insurance payments, and (3)

maintain life insurance for her benefit.      The basis for the

modification was George's claim that, because he had reached full

retirement age, the retirement provision required termination of his

obligation to pay alimony.3

     Discussion.   1.   Statutory interpretation standard.    "[A]

statute must be interpreted according to the intent of the Legislature

ascertained from all its words construed by the ordinary and approved

usage of the language, considered in connection with the cause of its

enactment, the mischief or imperfection to be remedied and the main

object to be accomplished, to the end that the purpose of its framers

may be effectuated."    Commonwealth v. Figueroa, 464 Mass. 365, 368

(2013), quoting Harvard Crimson, Inc. v. President & Fellows of

Harvard College, 445 Mass. 745, 749 (2006).    Where a literal reading

would "lead to an awkward and even intolerable result," we will eschew

it "for a more liberal or more encompassing approach."     Mailhot v.

Travelers Ins. Co., 375 Mass. 342, 348 (1978).

     2.   Claim that application of the retirement provision to merged

agreements is not retroactive.   George acknowledges that §§ 4 through

6 of St. 2011, c. 124, the uncodified transitional provisions of the

alimony reform act (uncodified sections), govern the extent to which
     3
       George was born in January, 1947, and was sixty-six years old
when he filed the complaint for modification in November, 2013.
                                                                    5

the act operates to apply prospectively or retroactively to existing

alimony judgments.   George also agrees that express language in these

provisions declares that the alimony reform act is, in the main,

prospective.4    He claims, however, that modification of an alimony

agreement that merges with a judgment that entered prior to March 1,

2012, as compared to one that survives the judgment, is not

retrospective but prospective in effect; he contends that this applies

as well to modification based on the retirement provision.

     In support of this claim, George looks to uncodified § 4 (c),

which provides that "[u]nder no circumstances shall [G. L. c. 208,

§§ 48-55,] provide a right to seek or receive modification of an

existing alimony judgment in which the parties have agreed that their

alimony judgment is not modifiable, or in which the parties have

expressed their intention that their agreed alimony provisions

survive the judgment and therefore are not modifiable."    The second

clause of uncodified § 4 (c), would not permit George to seek

modification pursuant to the retirement provision if his alimony

agreement had survived the judgment, except in very limited

circumstances.    See Chin, ante at    & nn.10-12.   Focusing on this

clause, George appears to argue that the Legislature must therefore


     4
       Uncodified provisions, such as those in §§ 4, 5, and 6 of St.
2011, c. 124 (uncodified sections), express the Legislature's view
on a particular aspect of the operation of a new statute, including
whether the statute is to be applied prospectively or retroactively.
See Chin v. Merriot, ante at       (Chin).
                                                                     6

have intended the retirement provision to apply to merged alimony

agreements, which are always subject to modification on a showing of

a material change in circumstances.5    See, e.g., Pierce v. Pierce,

455 Mass. 286, 293 (2009), quoting Schuler v. Schuler, 382 Mass. 366,

368 (1981); C.P. Kindregan, M. McBrien, & P.A. Kindregan, Family Law


     5
       It is well settled that alimony provisions in separation
agreements either merge with or survive the divorce judgment. See
G. L. c. 208, § 1A, as amended by St. 1985, c. 691. George does not
explicitly address whether the first clause of uncodified § 4 (c),
stating that the alimony reform act provides no right to seek
modification "of an existing alimony judgment in which the parties
have agreed that their alimony judgment is not modifiable," refers
to a judgment in which the alimony agreement has merged. Based on
George's assertion that his merged agreement was always subject to
modification upon a showing of a material change in the parties'
circumstances, he appears to assume that the first clause refers to
merged agreements. Because his merged agreement contains no language
that alimony is not modifiable, George can make the argument that he
is not precluded from seeking a modification of his alimony judgment.

     We agree that the first clause appears, by implication, to
include merged agreements, and that the Legislature intended to honor
clear expressions by parties regarding the terms under which alimony
may terminate, notwithstanding that merged agreements generally are
subject to modification on a showing of a material change in
circumstances. This reading is consistent with our decision in
Bercume v. Bercume, 428 Mass. 635, 644 (1999), and the Legislature
is presumed to be aware of "preexisting law and the decisions of this
court." Condon v. Haitsma, 325 Mass. 371, 373 (1950).

     The language referring to parties' agreements that their alimony
judgment is not modifiable is mirrored in G. L. c. 208, § 49 (e), which
provides: "Unless the payor and recipient agree otherwise, general
term alimony may be modified in duration or amount upon a material
change of circumstances warranting modification." Because of the
reference to the standard for modification that applies to merged
agreements, and the absence of any reference to surviving agreements,
this provision also appears to contemplate that parties to such a
merged agreement nonetheless may agree that their agreement will not
be modified in duration or amount.
                                                                    7

and Practice § 90.4, at 433-434 (4th ed. 2013) ("when the alimony

agreement does not survive the divorce judgment the ordinary test of

material change of circumstances controls in modification actions").

Under this view, modification of pre-existing, merged alimony

agreements is not retroactive because parties to agreements that are

always subject to modification will have anticipated potential

modification based on retirement, and modification based solely on

the retirement provision is thus prospective in effect.6

     We do not accept George's view of the meaning of uncodified

§ 4 (c), because it would require us to disregard the familiar

principle of statutory construction under which we interpret a statute

as a whole.   Instead, we consider the statutory provision bearing in

mind that "it is improper to confine interpretation to the single

section to be construed."   Johnson v. Kindred Healthcare, Inc., 466

Mass. 779, 784 (2014), quoting Commonwealth v. Keefner, 461 Mass. 507,

511 (2012).   We also consider the "surrounding text and structure"
     6
       Also under this view, parties to a merged agreement that is
modified pursuant to G. L. c. 208, c. § 49 (f), continue to have the
same rights as they have always had to modify existing alimony awards,
with the only differences being a shift in burdens and a heightened
standard for establishing the need for ongoing alimony. We do not
agree that the alimony reform act wrought no significant change to
parties' expectations regarding modification of their alimony
agreements. As we noted in Holmes v. Holmes, 467 Mass. 653, 656
(2014), "the prior alimony statute did not provide presumptive
termination dates for alimony." However, because of the result we
reach, we need not address George's argument that, even if the
retirement provision is retroactive in effect as applied to him, the
statute passes constitutional muster because it is a procedural and
not a substantive change.
                                                                    8

of these sections of the alimony reform act.   Maracich v. Spears, 133

S. Ct. 2191, 2209 (2013).

     The alimony reform act became effective on March 1, 2012.    The

uncodified sections of the alimony reform act are transitional

provisions that do not contain the substantive law governing the

duration and termination of alimony under the act.     See Chin, ante

at    .   The first sentence of the first paragraph of uncodified § 4

(a) states the Legislature's intent:    "General Laws c. 208, § 49,

"shall apply prospectively, such that alimony judgments entered

before March 1, 2012 shall terminate only under such judgments, under

a subsequent modification or as otherwise provided for in this act."

When considered against this backdrop of declared Legislative intent,

it is apparent from the surrounding text and structure that the

provisions that follow uncodified § 4 (a) state the exception to the

Legislature's overarching declaration of prospective application.

The subsequent sections proceed to place conditions on the exceptions,

and conclude by delineating transitional implementation dates for the

filing of complaints seeking modification based on these exceptions.

     The sole exception to what is in essence a bar to retroactive

application of the substantive provisions of the alimony reform act

is set forth in uncodified § 4 (b).    That section provides that the

durational limits of alimony awards under G. L. c. 208, § 49, are

applicable to "existing alimony judgments that exceed the durational
                                                                     9

limits," and that payment of alimony for a period that extends beyond

the statutory limits, "shall be deemed a material change of

circumstance that warrant modification."     See Chin, ante at       .

The next paragraph, uncodified § 4 (c), however, specifies when the

exception to these durational limits does not apply.     "Under no

circumstances" will the exception be available to modify "an existing

alimony judgment in which the parties have agreed that their alimony

judgment is not modifiable, or in which the parties have expressed

their intention that their agreed alimony provisions survive the

judgment and therefore are not modifiable."     The succeeding

provision, uncodified § 5, sets forth the dates after implementation

of the alimony reform act on which a payor may file a complaint for

modification based solely on a claim that an "existing alimony

judgment exceeds the durational limits."7   These dates are staggered,


     7
         Uncodified § 5 of the alimony reform act provides, in full:

     "SECTION 5. Any complaint for modification filed by a payor
under [§] 4 of this act solely because the existing alimony judgment
exceeds the durational limits of [G. L. c. 208, ' 49,] may only be
filed under the following time limits:

     "(1) Payors who were married to the alimony recipient [five]
years or less, may file a modification action on or after March 1,
2013.

     "(2) Payors who were married to the alimony recipient [ten] years
or less, but more than [five] years, may file a modification action
on or after March 1, 2014.

     "(3) Payors who were married to the alimony recipient [fifteen]
years or less, but more than [ten] years, may file a modification
                                                                  10

and based on the length of the marriage.8   For example, payors who

had been married to the alimony recipient for five years or less were

permitted to file a modification action on or after March 1, 2013,

whereas payors who had been married ten years or less were not

permitted to do so until on or after March 1, 2014.    Uncodified § 5

(1), (2).

     Having considered the structure and textual refinements of the

uncodified sections of the alimony reform act in the context of the

Legislature's declared intent, we conclude that uncodified § 4 (c)

provides no basis for the argument that the act precludes retroactive

application only as to surviving alimony agreements.    The provision

creates a single general exception to prospective application for

"existing alimony judgments that exceed the durational limits under"

G. L. c. 208, § 49, but imposes a condition on the durational limits

exception, limiting it to prospective application.     The act states

clearly that under "no circumstances" will the durational limits

exception be available where there is "an existing alimony judgment

in which the parties have agreed that their alimony judgment is not

modifiable," or where the alimony agreement survives the judgment.

action on or after March 1, 2015.

     "(4) Payors who were married to the alimony recipient [twenty]
years or less, but more than [fifteen] years, may file a modification
action on or after September 1, 2015."
     8
       The alimony reform act defines "[l]ength of the marriage" in
G. L. c. 208, § 48.
                                                                    11

See Lalchandani v. Roddy, 86 Mass. App. Ct. 819 (2015).      The

Legislature plainly intended that only a claim for modification based

on durational limits may (but will not always) apply retroactively

to existing alimony judgments.9   We therefore reject George's claim


     9
       To the extent that there is any ambiguity in the language of
the alimony reform act, the legislative history provides additional
clarification. Floor debate prior to passage of the act demonstrates
the Legislature's intent that the act be prospective. As
Representative Cantwell stated, "This bill is only prospective. It
cannot go back and change agreements." Representative Fernandes, a
sponsor of the bill, commented:

          "[T]he bill is intended to be prospective. Now, agreements
     between the parties that are made and are subject to modification
     provisions. We are not making any changes to that. . . . [The
     act] does not allow for existing amounts or modification of
     alimony awards in the past. The only thing it would allow is
     a modification to the duration of an existing alimony award,
     which may go on forever."

     This comment was made in reference to a prior draft of the bill,
Senate Doc. No. 665. But apart from reorganization of some
provisions, that earlier version was substantially identical to the
final version of the bill, with one exception that lends support to
our interpretation.

     The prior proposed language states: "The provisions of this
section shall be prospective, such that alimony judgments entered
before the effective date of this act shall terminate only as set forth
in [§] 7 (b) of this chapter." Section 7 (b) of the earlier draft
provided in part that "[e]nactment of this chapter shall be deemed
a material change of circumstance that warrants modification of
existing alimony judgments that exceed durational limits . . . ."
That portion of § 7 (b) was retained in uncodified § 4 (b).

     It is apparent that, standing alone, the broad language, "alimony
judgments entered before the effective date of this act shall
terminate only" in accordance with the provisions relating to
durational limits, could have been read to suggest that such judgments
could not be modified on any basis, including a change in circumstances
or as otherwise provided in the judgment. This was corrected by the
                                                                   12

that the retirement provision may apply to modify an alimony agreement

that merged in a judgment that entered prior to March 1, 2012.10

     Conclusion.   We answer the reported question:     General Laws

c. 208, § 49 (f), does not apply retroactively to alimony orders in

divorce judgments that entered before March 1, 2012.    The matter is

remanded to the Probate and Family Court for further proceedings

consistent with this opinion.

                                          So ordered.




drafters in the final version. The language now appears in uncodified
§ 4 (a) and incorporates the clarifying comments of the
representatives that "alimony judgments entered before March 1, 2012
shall terminate only under such judgments" or "under a subsequent
modification."
     10
        George suggests that in Holmes v. Holmes, 467 Mass. 653, 661
n.9 (2014), we effectively confirmed that the alimony reform act does,
in fact, apply retroactively to judgments issued prior to its
effective date. A footnote in that case, commenting on arguments by
a party who did not appeal from the decision of a trial judge, was
not intended to be dispositive of the question posed here.
