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14-P-1057                                          Appeals Court

            SUSAN F. McMANUS   vs.   PETER G. McMANUS.


                          No. 14-P-1057.

        Middlesex.     March 2, 2015. - August 11, 2015.

            Present:   Katzmann, Milkey, & Agnes, JJ.



Divorce and Separation, Alimony, Modification of judgment,
     Separation agreement. Practice, Civil, Summary judgment.



     Complaint for divorce filed in the Middlesex Division of
the Probate and Family Court Department on November 12, 2004.

     A complaint for modification was heard by Jeffrey A.
Abber, J., on a motion for summary judgment.


    Amy J. Devaney for the wife.
    Kathleen P. Ryder for the husband.


    AGNES, J.   The question presented for our review is whether

a separation agreement (agreement) that merged in part and

survived in part a judgment of divorce nisi, and that contains a

waiver of any claim for "past or present alimony," constitutes

an agreement to waive a party's claim for alimony in the future.
                                                                       2


A judge of the Probate and Family Court concluded that it did,

and he allowed the former husband's (defendant's) motion for

summary judgment.    We conclude that when read in its entirety,

the agreement contains an omission with regard to either party’s

right to file a complaint for modification seeking future

alimony that precludes a determination, at this stage, of the

parties' intent.    Accordingly, the plaintiff should have an

opportunity to offer parol evidence to enable the judge to

determine the intent of the parties concerning future alimony.

We vacate the judgment and remand the matter for further

proceedings.

     Background.    The essential facts are not in dispute.     Both

parties were represented by counsel during the divorce

proceedings.   A judgment of divorce nisi entered on January 30,

2006.   It provided in relevant part as follows:   "It is . . .

ordered that the parties shall comply with the terms of an

Agreement dated January 30, 2006, filed, incorporated and not

merged in this Judgment which shall survive and have independent

legal significance, except for provisions relating to the

children, and medical insurance, which provisions shall merge

and not survive."   The general rule is that unless the parties

intend otherwise, a separation agreement survives a judgment of

divorce that incorporates the agreement by reference.     See

Subarian v. Subarian, 362 Mass. 342, 345 n.4 (1972).     Under the
                                                                    3


terms of the divorce judgment, the agreement survives as a

contract with independent legal significance insofar as it

addresses the subject of alimony.1   The question is whether the

parties intended that the reference to alimony "past and

present" to encompass future alimony as well.   The intent of the

parties "is determined from the whole agreement."   See Parrish

v. Parrish, 30 Mass. App. Ct. 78, 83 (1991).

     The agreement consists of fifteen sections and a series of

six exhibits that are attached to and incorporated by reference

into the agreement.   At the outset, the agreement's "Statement

of Facts" provides that the parties were married in 1983, that

they have three children (at the time, ages twenty, sixteen, and

twelve), and that the parties had been living apart since


     1
       The parties' intent that certain aspects of the agreement
survive is demonstrated by section IX of the agreement, entitled
"Incorporation, Survival & Merger of Agreement," which provides
in part that "[n]otwithstanding the incorporation of this
Agreement in the Judgment Nisi, all of the provisions of the
Agreement except as to those pertaining to health insurance and
the care, custody, support, maintenance, welfare and education
of the parties' minor children, shall survive the Judgment Nisi
and be forever binding upon the Husband and the Wife and their
heirs, executors, administrators and assigns for all time,
retaining independent legal significance as a valid and binding
contract between the parties." In contrast, "[w]hen parties to
a divorce negotiate an agreement for alimony that is
'incorporated and merged into [such a] judgment' upon approval
by a judge and in accordance with G. L. c. 208, § 1A or 1B, the
judgment . . . is subject to modification based on a material
change in circumstances." Chin v. Merriot, 470 Mass. 527, 534-
535 (2015).
                                                                     4


October 13, 2003.   The agreement's "Statement of Purpose"

recites that it is to "settle and determine" four issues:     "(a)

What should be paid as alimony . . . ; (b) What the equitable

division of the marital assets should be . . . ; (c) What

provisions should be made for the support and maintenance of the

parties' minor children . . . ; and (d) All other matters,

issues, rights, obligations and claims by and between the

parties arising from the marital relationship and which should

be settled in view of the existing Complaint for Divorce."2

Section VI of the agreement refers to the six exhibits, which


     2
       Much of the agreement contains boilerplate language
frequently found in separation agreements. For example, section
II of the agreement consists of a joint waiver of any interest
either party might otherwise have in the other's estate "except
to enforce any obligation imposed by this Agreement." Section
III contains a set of mutual releases whereby "the Husband and
Wife hereby mutually release and forever discharge each other
from any and all actions, suits, debts, claims, demands and
obligations whatsoever, both in law and in equity, which either
of them has ever had, now has, or may hereafter have against the
other, upon or by reason of any matter, cause or thing up to the
date of this Agreement." Section IV is a "warranty against
debts," which has no bearing on the issue in this case. Section
V provides in relevant part that "[t]he parties each agree to
accept the provisions set forth in this Agreement in full
satisfaction and discharge of all claims, past and present which
either may have against the other party and which in any way
arise out of the marital relationship, including all such rights
as either party may have, or claim to have, under the terms and
provisions of G. L. c. 208, [§] 34. Each party further agrees
that, except for enforcement of this Agreement, he and she will
not seek from any court having jurisdiction over the parties any
order that is inconsistent with the provisions set forth in this
Agreement."
                                                                   5


address (1) custody (exhibit A); (2) alimony and child support

(exhibit B); (3) medical and dental expenses (exhibit C); (4)

education expenses (exhibit D); (5) life insurance expenses

(exhibit E); and (6) property division (exhibit F).3   The

agreement contains no language concerning future alimony

obligations, providing solely that each party "hereby waives any

claim against the [other] for the receipt of past or present

alimony."



     3
       Section VII of the agreement states that each party has
had full discovery, independent legal advice, and voluntarily
consents to the terms of the agreement. Furthermore, section
VII states that "[t]he parties further acknowledge and declare
that this Agreement contains the entire agreement between them.
There are no agreements, promises, terms, conditions or
understandings and no representations or inducements leading to
the execution of this Agreement, either expressed or implied,
other than those terms expressly set forth in this Agreement.
No oral statement or prior written matter extrinsic to this
Agreement shall have any force or effect. Each party declares
that they do not have any undisclosed assets." Section VIII of
the agreement deals with the execution of documents and notice
and has no bearing on the issue in this case. Section X
provides that if the parties cannot agree on the interpretation
of any provision, the dispute shall be submitted to the Probate
and Family Court. Section XI provides that a party will not be
deemed to have waived any right simply because he or she did not
insist on strict enforcement of a particular term or provision.
Section XII provides that if any provision is deemed to be
invalid it will not affect the validity of other provisions.
Section XIII provides that the agreement takes effect on January
30, 2006, and is governed by the law of the Commonwealth.
Finally, section XIV provides that the agreement "shall not be
altered or modified except by an instrument in writing signed
and acknowledged by the Husband and the Wife or by order of a
Court having competent jurisdiction."
                                                                   6


     On October 1, 2013, the plaintiff filed a complaint for

modification, which states in relevant part, that the plaintiff

"is in need of support in the form of alimony now that the

defendant intends to terminate the payment of child support."

By motion dated March 17, 2014, the defendant sought summary

judgment on the plaintiff's complaint.4   On May 5, 2014, the

judge allowed the defendant's motion, reasoning that "[w]here

parties have expressly set forth that the 'Agreement is made to

settle and determine . . . what should be paid as alimony

. . .', the Court is entitled to infer that the agreement

addressed future alimony [quoting from Cappello v. Cappello, 23

Mass. App. Ct. 941 (1986)]".

     Discussion.   Future alimony.   The plaintiff argues that

because the agreement contains an explicit waiver of either

party's right to a claim for "past and present" alimony, and is

silent with regard to any future alimony obligations, the issue

of whether the parties intended to address the potential for

future alimony is a question of material fact that precludes the

allowance of summary judgment.   See Seaco Ins. Co. v. Barbosa,

     4
       The defendant filed the motion for summary judgment after
first responding to the complaint by answer and a counterclaim
for modification. In the counterclaim, the defendant sought to
terminate his child support obligations to the plaintiff and
demanded that the plaintiff begin paying the defendant child
support. The parties have not addressed the counterclaim or its
status in this appeal, and we do not address it here.
                                                                   7


435 Mass. 772, 779 (2002) (where terms of contract "are

ambiguous, uncertain, or equivocal in meaning, the intent of the

parties is a question of fact to be determined at trial").

    "The standard of review of a grant of summary judgment is

whether, viewing the evidence in the light most favorable to the

nonmoving party, all material facts have been established and

the moving party is entitled to a judgment as a matter of law."

Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).

See Mass.R.Dom.Rel.P. 56(h).   In interpreting a surviving or

partially surviving separation agreement, the rule is that "a

judge should respect 'the desire of the parties to determine

their own destinies.'"   Bercume v. Bercume, 428 Mass. 635, 644

(1999), quoting from Moore v. Moore, 389 Mass. 21, 24 (1983).

In particular, "[w]e must construe the [separation] agreement in

a manner that 'appears to be in accord with justice and common

sense and the probable intention of the parties . . . [in order

to] accomplish an honest and straightforward end [and to avoid],

if possible, any construction of a contract that is unreasonable

or inequitable.'"   Krapf v. Krapf, 439 Mass. 97, 105 (2003),

quoting from Clark v. State St. Trust Co., 270 Mass. 140, 153

(1930).   However, whether a separation agreement is ambiguous is

a question of law, and we review the issue de novo.   Lalchandani

v. Roddy, 86 Mass. App. Ct. 819, 823 (2015).
                                                                   8


     Here, we cannot say that the agreement permits a judge to

determine the intent of the parties with respect to future

alimony simply by reference to the terms used by the parties.

The issue of the intent of the parties regarding future alimony

obligations is therefore a question of material fact that cannot

be resolved on a motion for summary judgment at this stage.      See

Pierce v. Pierce, 455 Mass. 286, 305 (2009) (where language of

separation agreement is "not so clear and unequivocal as to

permit the judge" to determine intent of parties, parol evidence

is admissible to explain parties' intent).5

     Massachusetts case law indicates that parties express their

mutual agreement to waive any and all claims for alimony in

separation agreements by using the phrase "past, present, and

future."   See, e.g., Fabrizio v. Fabrizio, 316 Mass. 343, 345

(1944); Taylor v. Gowetz, 339 Mass. 294, 296 (1959); O'Brien v.

O'Brien, 416 Mass. 477, 480 (1993); Mills v. Mills, 4 Mass. App.

Ct. 273, 274 n.2 (1976); Becker v. Phelps, 86 Mass. App. Ct.

169, 170 n.2 (2014).   Compare Buckley v. Buckley, 42 Mass. App.

     5
       See also Freeman v. Sieve, 323 Mass. 652, 655-656 (1949)
(where separation agreement that survived as independent
contract was unclear regarding obligations of parties court must
read "the entire agreement" to ascertain intent of parties);
Feakes v. Bozyczko, 373 Mass. 633, 634 n.2, 635 (1977) (where
separation agreement that survived as independent contract was
ambiguous regarding obligations of parties, court must look to
the intent of parties to determine "objective sought to be
accomplished by the parties").
                                                                   9


Ct. 716, 720 (1997) (parties' separation agreement expressly

reserved whether alimony would be paid in future); Vedensky v.

Vedensky, 86 Mass. App. Ct. 768 (2014) (separation agreement

contained reservation of rights as to future alimony).     The

agreement here is silent regarding the payment of alimony in the

future.   A reading of the agreement in its entirety does not

resolve the ambiguity.6   "[W]here a contract is so expressed as

to leave its meaning obscure, uncertain or doubtful, evidence of

the circumstances and conditions under which it was entered into

are admissible, not to contradict, enlarge or vary its terms by

parol, but for the purpose of ascertaining the true meaning of

its language as used by the parties."    Waldstein v. Dooskin, 220

Mass. 232, 235 (1915).    See Robert Indus., Inc. v. Spence, 362

Mass. 751, 753-754 (1973) ("When the written agreement, as

applied to the subject matter, is in any respect uncertain or

equivocal in meaning, all the circumstances of the parties

leading to its execution may be shown for the purpose of

     6
       In their briefs and at oral argument, the parties
acknowledged that the terms of the agreement were the product of
negotiation between the parties. The defendant asserts that he
"did not agree to the Marital Agreement containing any
obligation for future alimony." The parties' negotiations are
not part of the record in this case, and we cannot therefore
consider representations in the briefs about the positions taken
by the parties during the negotiation. Further, even if the
defendant's assertion is true, it does not alter the fact that
the parties' agreement is ambiguous on the question of future
alimony.
                                                                  10


elucidating, but not of contradicting or changing its terms").

We conclude that the separation agreement is "ambiguous,

uncertain, [and] equivocal" with regard to whether a party is

free to request future alimony, and therefore "the intent of the

parties is a question of fact to be determined [by the fact

finder]."   Seaco Ins. Co. v. Barbosa, 435 Mass. at 779. See 11

Lord, Williston on Contracts § 30:7 (4th ed. 2012).7

     In concluding that the defendant's motion for summary

judgment should be allowed, the probate judge erroneously relied

on Cappello v. Cappello, supra, to infer that, viewing the

evidence in the light most favorable to the plaintiff, the

parties intended to address in the agreement their future

alimony obligations.   The court in Cappello did not conclude

that the language of the separation agreement at issue barred a

hearing under G. L. c. 208, § 34, to determine whether there

should be an award of alimony; instead, the court concluded that


     7
       See also Cramer v. Hirsch, 18 Mass. App. Ct. 986 (1984)
(where separation agreement that survived divorce judgment as
independent contract did not address subject of child retaining
the father's surname, separation agreement did not contemplate
any obligation related to the name of child). Contrast Bracci
v. Chiccarelli, 53 Mass. App. Ct. 318, 320-321 (2001)
(separation agreement that survived divorce judgment and
subsequent modification judgment as independent contract
encompassed all alimony obligations where agreement included
explicit waiver by each party of "all claim to past, present or
future alimony").
                                                                     11


in the circumstances presented, the party seeking the hearing on

the issue "failed to allege any change of circumstances which

would warrant a hearing on the issue."       23 Mass. App. Ct. at

942.       Further, unlike the agreement in this case which

explicitly addresses the parties' "past and present" alimony

obligations while remaining silent about the parties' future

alimony obligations, the separation agreement in Cappello "made

no reference, explicit or otherwise, to questions of alimony or

the division of property" (emphasis added).       Ibid. (inferring

that separation agreement between parties encompassed division

of property because agreement explicitly purported to be final

settlement of parties' affairs and included "no reference" to

division of property).8




       8
       As noted in the text, supra at   , the critical question
in any case in which the interpretation of an agreement that
survives the judgment of divorce in whole or in part is the
intent of the parties, determined by examining the agreement as
a whole. See DeCristofaro v. DeCristofaro, 24 Mass. App. Ct.
231, 237-238 (1987). In this case, we conclude that the
omission of any reference to "future" alimony, in the context of
the agreement as a whole, creates an ambiguity as to the intent
of the parties, and thus summary judgment was not appropriate.
We do not decide that it is necessary in every case to make
express reference to "future" alimony in an agreement in order
for it to reflect the intent of the parties with regard to
future alimony.
                                                                 12


     Conclusion.   For the above reasons, the judgment is vacated

and the matter is remanded to the Probate and Family Court for

further proceedings consistent with this opinion.9

                                   So ordered.




     9
       We express no opinion on the final outcome of the case.
It should be noted that either party may be entitled to summary
judgment after remand. Depending on the nature of any parol
evidence that is offered with regard to the intent of the
parties at the time the agreement was signed, the judge could
decide that there was mutual intent to leave the matter of
future alimony open and grant summary judgment to the wife on
that question, or conclude that there was mutual intent to
foreclose any complaint for modification to obtain alimony and
award summary judgment to the husband. Alternatively, the
question of the parties intent with regard to future alimony may
remain a disputed question of material fact after the judge
considers parol evidence, in which case there would have to be a
trial on that question.
