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13-P-951                                              Appeals Court

               JILL S. BECKER   vs.   MONT ANDREW PHELPS.



                              No. 13-P-951.

            Middlesex.      June 2, 2014. - August 22, 2014.

               Present:   Green, Trainor, & Grainger, JJ.


Divorce and Separation, Alimony.      Contract, Consideration,
     Waiver.



     Civil action commenced in the Middlesex Division of the
Probate and Family Court Department on August 2, 2012.

     A motion to dismiss was heard by Dorothy M. Gibson, J., and
a motion to alter or amend judgment was considered by her.


      Jill S. Becker, pro se.
      Brian P. Heneghan for the defendant.


      GRAINGER, J.    The parties, formerly married, raise an

interpretive question of first impression under a provision of

the Alimony Reform Act of 2011, 1 G. L. c. 208, § 49(a).



      1
          See St. 2011, c. 124, codified at G. L. c. 208, §§ 34, 48-
55.
                                                                     2


     Background.    The facts are uncontested.   After eight years

of marriage the parties divorced on November 9, 2010.    The

parties entered into a separation agreement addressing various

topics, including the division of marital assets, payment of the

expenses of medical insurance and education for the couple's

children, and the parties' respective obligations to maintain

life insurance.    Germane to the issue raised on appeal, the

parties also stipulated to two lump sum payments of $500,000 in

lieu of periodic alimony payments.    The payments were due to be

paid by the wife to the husband on or before December 1, 2013,

and on or before December 1, 2018.    Unpaid amounts were subject

to a four percent annual interest payment commencing December 1,

2011.    These annual payments were terminable upon the death of

either party or upon the payment in full of the two lump sums,

whichever occurred earlier.    The agreement was incorporated into

the judgment of divorce, specifically provided that it would

survive the judgment, and contained no other provision for

termination of these enumerated obligations. 2


     2
         The pertinent language of the agreement is as follows:

     "(2.) The parties both waive their respective rights to
     receive periodic alimony payments from the other party,
     past, present and future. The parties' respective waivers
     of alimony shall survive the entry of a Judgment of Divorce
     Nisi. In consideration for the Husband's waiver of
     periodic alimony from the Wife, the Wife shall pay to the
     Husband the sum of $500,000.00 on or before December 1,
     2013, and a further sum of $500,000.00 on or before
                                                                     3


     The husband remarried in June of 2012, after the first four

percent annual payment was made.   Shortly thereafter the wife

filed a complaint for declaratory relief in the Probate and

Family Court asserting that all alimony obligations "were

terminated by operation of law."   She appeals from the dismissal

of her complaint and the subsequent denial of her motion to

alter or amend the judgment.   For the reasons set forth below we

affirm.

     Proceedings in the Probate and Family Court.    The husband's

motion to dismiss the wife's complaint relied on the Supreme

Judicial Court's statement in Keller v. O'Brien, 420 Mass. 820,

826 (1995), that remarriage would "not of itself automatically

terminate alimony" unless "otherwise provided in the judgment of

divorce or in an agreement between the parties."    The wife



     December 1, 2018, as non-taxable alimony to the Husband,
     and non-deductible by the Wife. In addition, the Wife
     shall pay to the Husband annually commencing Dec. 1, 2011,
     an amount for alimony equal to 4% of the outstanding
     indebtedness for lump sum alimony referred to above. This
     annual alimony payment and only the annual alimony payment,
     shall be taxable to the Husband and deductible by the Wife,
     and shall terminate on the Husband's death, the Wife's
     death or the payment of all sums due for lump sum alimony,
     whichever first occurs.

     " . . .

     "(16.) This agreement shall survive the judgment of divorce
     except as provisions relating to the children."
                                                                    4


countered this citation with a motion for judgment on the

pleadings invoking G. L. c. 208, § 49(a), a provision of the

Alimony Reform Act which became effective on March 1, 2012, and

provides that "[g]eneral term alimony shall terminate upon the

remarriage of the recipient."   The wife also pointed to St.

2011, c. 124, § 4(b), which provides that "[e]xisting alimony

awards shall be deemed general term alimony." 3

     In a further response the husband invoked St. 2011, c. 124,

§ 4(c), 4 which states that certain enumerated sections of c. 208,

including § 49 on which the wife relied, do not "provide a right

to seek modification of an existing alimony judgment . . . . in

which the parties have expressed their intention that their

agreed alimony provisions survive the judgment and therefore are

not modifiable."    The wife thereupon disputed the applicability

of § 4(c) with the argument that she was not seeking to "modify"

a surviving agreement but, rather, to eliminate it.

     The judge discharged her unenviable task of distilling

these numerous salvos by dismissing the wife's complaint with a

succinct order noting the parties' agreement to incorporate the

stipulation into a judgment, and the clear language that it

would survive the judgment.   The judge pointed out that the

     3
       This language appears in the text of the Alimony Reform
Act, as approved September 26, 2011, but it does not appear in
the text of the published volume of G. L. c. 208, §§ 48-55.
     4
         See note 3, supra.
                                                                   5


Alimony Reform Act was pending at the time the parties entered

into the agreement, and that the lump sum payments were

inextricably entwined with a general asset and property division

which was "fair and reasonable."

     Discussion.    In their agreement, the parties denominated

the lump sum payments in question here not as "alimony," but as

payments made as consideration for the husband's "waiver of

periodic alimony."    Two sentences later, in the same document,

the four percent interest payments due on unpaid portions of the

lump sum payments are described as "annual alimony payment[s]."

      We conclude that the judgment of divorce, incorporating

the language of the agreement, renders the four percent interest

payments alimony.    The lump sum payments, however, are

specifically classified as payments that are not alimony, but

replace it.   The legal arguments advanced by the parties, both

in the Probate and Family Court and on appeal, refer exclusively

to alimony obligations.    As it does not change the result in

either instance, we affirm the judge's decision on two different

rationales.

     1.   Lump sum payments.   As stated, the complaint does not

properly address this obligation.    The termination of all

alimony payments resulting from remarriage alleged by the wife,

even if correct, would not affect payments that the wife herself

agreed to make in consideration of the husband's waiver of
                                                                   6


alimony.    The judge's finding that the over-all division of

marital property was "fair and reasonable" is particularly

pertinent in this context. 5

     2.    Four percent interest payments.   We consider these

payments, agreed upon to provide the husband with income

generated by the unpaid amount of the lump sum funds (and

possibly as an incentive for the wife to pay the lump sum prior

to the due dates) to be alimony, consistent with the language

used by the parties.    Accordingly, we consider the statutory

provisions invoked by the parties.

     We do not view the Alimony Reform Act as a direct

contradiction of the holding in Keller v. O'Brien, 420 Mass. at

826-827.    Rather, it represents a change of emphasis in that

alimony, deemed not to terminate "automatically" by the Supreme

Judicial Court in Keller, now cannot be modified under the

statute if the parties have agreed that alimony survives the

judgment of divorce.    See St. 2011, c. 124, § 4(c).   As the

husband aptly points out, the parties' agreement in this case

provides that it shall survive the judgement of divorce,

excepting only the provisions relating to the children.




     5
       Even were the lump sum payments properly characterized as
alimony, dismissal of the complaint was proper for the reasons
enunciated in our consideration of the four percent interest
payments.
                                                                    7


     We consider the wife's argument that she is not seeking to

"modify" alimony, hence that St. 2011, c. 124, § 4(c), is

inapplicable here, unavailing.   The clearly expressed

legislative intent of the statute is to provide finality to

alimony agreements that the parties have designated as final,

either by designating them as "not modifiable" or achieving the

same result by agreeing that alimony provisions shall "survive

the judgment."   In this context we consider termination to be no

more than a maximum form of modification, all the more

disfavored as a result.   We note the use of interspersed terms

such as "suspended, reduced or terminated" in describing the

consequence of a recipient spouse's cohabitation, G. L. c. 208,

§ 49(d), as well as the use of "modified in duration" as a

substitute for termination.   G. L. c. 208, § 49(e).   The wife's

argument, taken to its logical conclusion, would interpret the

statute to prohibit reduction of an alimony obligation to one

dollar, but to allow elimination altogether.   See, e.g.,

Bridgewater State Univ. Foundation v. Assessors of Bridgewater,

463 Mass. 154, 160 (2012) (court should adopt statutory

interpretation that is most "reasonable and sensible in the

circumstances"), citing Mailhot v. Travelers Ins. Co., 375 Mass.

342, 348 (1978) (where strict, literal interpretation of statute

"is seen . . . to lead to an awkward and even intolerable
                                                                   8


result, [it will be] abandoned for a more liberal or more

encompassing approach"). 6,7

                                   Judgment affirmed.

                                   Order denying motion to amend
                                     judgment affirmed.




     6
       We also note that in Keller v. O'Brien, supra at 822 &
n.3, the Supreme Judicial Court treated a complaint for
modification as the appropriate vehicle through which to seek
termination of alimony payments upon remarriage of the payor
spouse.
     7
       We decline to award appellate attorney's fees and costs as
requested by the husband.
