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16-P-190                                               Appeals Court

             KATHERINE DeMARCO      vs.   MICHAEL DeMARCO.


                              No. 16-P-190.

           Suffolk.         April 5, 2016. - June 24, 2016.

                 Present:   Meade, Hanlon, & Blake, JJ.


Divorce and Separation, Relief from judgment, Separation
     agreement. Statute, Retroactive application. Contract,
     Modification.


     Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on November 18, 2008.

     A motion for relief from judgment and a complaint in
equity, both filed on August 7, 2015, were heard by John D.
Casey, J.

     Leave to prosecute an interlocutory appeal was allowed in
the Appeals Court by Blake, J.

     Michael P. Angelini for the husband.
     Elaine M. Epstein (Richard M. Novitch with her) for the
wife.
     David H. Lee & Holly A. Hinte, for Lee & Rivers, LLP,
amicus curiae, submitted a brief.


     BLAKE, J.     The husband, Michael DeMarco, and the wife,

Katherine DeMarco, reached a surviving settlement agreement

while trial was underway on their pending complaints for
                                                                        2


modification of alimony under the Alimony Reform Act of 2011,

G. L. c. 208, §§ 34, 48-55 (act), and for contempt for

nonpayment of alimony.      The agreement provides for a lump sum

payment to the wife in exchange for a termination of the

husband's alimony obligation.      After the judgments entered

incorporating the settlement agreement, the Supreme Judicial

Court released its decision in Chin v. Merriot, 470 Mass. 527

(2015), and in two related cases,1 wherein the court concluded

that the provision of the act relevant here is to apply

prospectively.      Thereafter, the wife filed a motion for relief

from the judgments, and a complaint in equity, asserting that

she was entitled to relief from the provisions of the settlement

agreement based on the recently released decisional law.         The

judge allowed the motion, and the husband sought, and obtained,

leave to file an interlocutory appeal.      We reverse.2

       Background.    The parties were divorced in May, 2010.     The

alimony provision within their separation agreement (2010

agreement), which merged with the judgment of divorce, provided

that the husband was to pay alimony to the wife until the death

of either party, the wife's remarriage, or "[a]t such time as


       1
       Rodman v. Rodman, 470 Mass. 539 (2015); Doktor v. Doktor,
470 Mass. 547 (2015).
       2
           We acknowledge the amicus brief submitted by Lee & Rivers,
LLP.
                                                                    3


the Husband has no gross earned income, after turning age 68."

In 2011, the Legislature enacted the act, see St. 2011, c. 124,

which took effect on March 1, 2012.    See St. 2011, c. 124, § 7.

The retirement provision of the act, G. L. c. 208, § 49(f),

inserted by St. 2011, c. 124, § 3, provides that "general term

alimony orders shall terminate upon the payor attaining the full

retirement age."3   In 2012, the husband ceased making full

alimony payments, and, on February 19, 2013, the wife filed a

complaint for contempt for nonpayment of alimony.    Nine days

later, the husband filed an amended complaint for modification,

seeking termination of his alimony obligation based on his

attainment in December, 2012, of the full retirement age under

the act.4

     The complaints were consolidated for trial on February 19,

2014.    The attorneys' arguments, and their discussions with the

judge at that point, indicate that the attorneys as well as the

judge operated under the assumption that the retirement age

provision of the act applied retroactively to alimony judgments

entered prior to March 1, 2012, the effective date of the act,

     3
       Full retirement age is defined by G. L. c. 208, § 48,
inserted by St. 2011, c. 124, § 3, as "the payor's normal
retirement age to be eligible to receive full retirement
benefits under the United States Old Age, Survivors, and
Disability Insurance Program."
     4
       The husband filed his original complaint for modification
of his alimony obligation on March 1, 2012.
                                                                     4


such that, under the facts of this case, the husband would be

entitled to cease making alimony payments because he had reached

the full retirement age.    The wife's attorney nevertheless

argued, based on the length of the marriage and the short period

of time that the wife had been receiving support, that the judge

had discretion for good cause to extend alimony past the

husband's retirement age.   Against that backdrop, and with the

consent of their experienced domestic relations counsel, the

judge addressed the parties on the benefits of settling their

case.   He acknowledged that the interpretation of the act

remained unsettled and was the subject of significant debate

among the members of the bench.   The judge also articulated his

concern that if the case was tried to judgment, the result to

the wife could be harsh.    Finally, he suggested that the parties

consider the amount of legal fees paid, the emotional costs to

each of them, the potential of an appeal, and the benefit of

finality.

    Heeding the judge's advice, the husband and wife reached a

settlement agreement (2014 agreement) during a break on the

first day of trial.   In a colloquy under oath the parties

affirmed to the judge that:   (1) they had read and understood

the terms of the 2014 agreement, which provided for a lump sum

payment to the wife and the termination of the husband's alimony

obligation; (2) they entered into the 2014 agreement freely and
                                                                    5


voluntarily; and (3) they understood that the 2014 agreement "is

intended to survive, [and] if it's approved by the Court, it's

almost impossible to change."   Accepting the parties' testimony,

the judge ordered that as to each complaint judgment was to

enter incorporating the 2014 agreement.   The judgments entered

on February 20, 2014.

     On January 30, 2015, the Supreme Judicial Court issued a

trilogy of cases holding, in direct contradiction to the

presumption of the parties and the judge here, that the

retirement provision of the act applies prospectively, and does

not apply to cases where alimony judgments entered prior to

March 1, 2012, the effective date of the act.     See Chin v.

Merriot, 470 Mass. 527 (2015); Rodman v. Rodman, 470 Mass. 539

(2015); Doktor v. Doktor, 470 Mass. 547 (2015).

     Contending that the judge and both counsel had "relied on a

mistake of law" in crafting and approving the 2014 agreement, on

August 7, 2015, the wife filed a motion for relief from the

judgments pursuant to Mass.R.Dom.Rel.P. 60(b)(5) and (6),5 and a

complaint in equity, seeking reinstatement of the alimony

provision within the parties' 2010 agreement.     The judge

consolidated both the motion and the equity complaint, and, by

     5
       "The text of Mass.R.Dom.Rel.P. 60(b) is the same as that
of Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974). We may,
therefore, look to the cases under the civil procedure rule and
the parallel Federal rule." Freitas v. Freitas, 26 Mass. App.
Ct. 196, 197 n.1 (1988).
                                                                     6


order dated November 24, 2015, allowed the wife's motion on the

ground that the "Wife's reliance on the Court's incorrect

interpretation of the Alimony Reform Act[] to her serious

detriment," constituted an "extraordinary circumstance"

warranting relief under rule 60(b)(6).6    In his memorandum of

decision and order, the judge also found that the wife was

entitled to relief from the judgments pursuant to the Probate

and Family Court's broad equitable powers, "in order to correct

what has been wrongfully done."   The husband filed a petition

pursuant to G. L. c. 231, § 118, with this court, seeking leave

to pursue an interlocutory appeal of the November 24, 2015,

order.   A single justice stayed the order and granted leave to

the husband to pursue an expedited appeal.

     Discussion.   "Rule 60 [of the Massachusetts Rules of

Domestic Relations Procedure] sets forth a comprehensive

framework for obtaining relief from a final judgment or order,

balancing the competing needs for finality and flexibility to be

certain that justice is done in light of all the facts."     Sahin

v. Sahin, 435 Mass. 396, 399-400 (2001).     Subdivision (b)(6) of

the rule is a catchall provision, applicable when subdivisions


     6
       In his memorandum of decision and order, the judge,
finding no change in the law, determined that rule 60(b)(5) was
inapplicable in this case. In relevant part, rule 60(b)(5)
allows a judge to relieve a party from a final judgment if "it
is no longer equitable that the judgment should have prospective
application."
                                                                   7


(b)(1) through (b)(5) do not apply, that allows relief from

judgment for "any other reason justifying relief from the

operation of the judgment."   See Parrell v. Keenan, 389 Mass.

809, 814 (1983); Freitas v. Freitas, 26 Mass. App. Ct. 196, 197

(1988).   Rule 60(b)(6) has an "extremely meagre scope" and

requires the showing of "compelling or extraordinary

circumstances."   Winthrop Corp. v. Lowenthal, 29 Mass. App. Ct.

180, 188 (1990), quoting from Bowers v. Board of Appeals of

Marshfield, 16 Mass. App. Ct. 29, 33 (1983).   Extraordinary

circumstances may include evidence of actual fraud, a genuine

lack of consent, or a newly-emergent material issue.   See

Thibbitts v. Crowley, 405 Mass. 222, 226-228 (1989).   A judge's

ruling on a rule 60(b)(6) motion "will not be reversed on appeal

in the absence of an abuse of discretion."   Rezendes v.

Rezendes, 46 Mass. App. Ct. 438, 441 (1999).7,8


     7
       Although the wife's motion was labelled as being brought
pursuant to rule 60(b)(5) and (6), she failed to make any
specific argument, supported by facts or law, as to the
applicability of rule 60(b)(5) to her claim. We therefore
analyze the wife's claim under rule 60(b)(6). We note, however,
that the wife could have considered filing a complaint seeking
the equitable remedy of rescission of the 2014 agreement.
Although the wife did file a complaint in equity, that complaint
is not included in the record before this court. Even if the
wife had filed a complaint for rescission, the outcome would be
the same because the 2014 agreement is a contract to which there
was no mutual mistake of fact or fraud entitling her to relief.
See Ward v. Ward, 70 Mass. App. Ct. 366, 369-370 & n.6 (2007)
("contracts . . . may only be rescinded or reformed because of
mistake if the mistake is mutual to the parties"). "The parties
are bound by the legal effect of what has really been agreed on,
                                                                     8


    1.    Clarification of the law.    The husband argues that a

"subsequent clarification of the law" is not the type of

extraordinary circumstance intended to be relieved by the

application of rule 60(b)(6).    We agree.

    In Smith v. Arbella Mut. Ins. Co., 49 Mass. App. Ct. 53

(2000), this court affirmed the well-settled principle that

"[c]hanges in decisional law alone are held not to be

extraordinary circumstances and do not justify the reopening of

a final judgment."   Id., at 55-56, and cases cited.    We see no

reason to treat decisional law interpreting recently enacted

legislation differently.   Here, in contrast to the parties in

Chin v. Merriot and Doktor v. Doktor, the wife chose to settle

her case rather than trying it to completion and filing an

appeal.   Smith v. Arbella Mut. Ins. Co., supra at 56, makes

clear that for reasons of finality a rule 60(b)(6) motion is not

a substitute for an appeal.     See Bromfield v. Commonwealth, 400



and cannot have the [contract] set aside on the ground that they
did not fully understand the legal effect of the language used,
and that certain legal consequences which were not anticipated
by the [parties] flowed from its execution." Id. at 370.
    8
       The husband argues that the wife's motion actually seeks
relief pursuant to rule 60(b)(1), with its one year time limit,
because the wife's claim is really one of "mistake" about the
proper interpretation of the act. See Roberts v. Worcester
Redev. Authy., 53 Mass. App. Ct. 454, 461 (2001). Since the
wife failed to file her motion within one year of entry of the
judgments as required by that rule, we need not address the
husband's argument. In any event, rule 60(b)(1) is inapplicable
here as there was no "mistake" of law.
                                                                     9


Mass. 254, 257-258 (1987); Freitas v. Freitas, supra at 198

(because of the importance of finality, "the rule should not be

used as an instrument for relief from deliberate choices which

did not work out").   Alternatively, the wife could have asked

the judge to reserve and report the question to the Appeals

Court pursuant to G. L. c. 215, § 13.9   The wife had a myriad of

options available to her, all with their own advantages and

disadvantages.   By choosing to settle, she also chose the

finality of judgment, which may not be undone through a rule

60(b)(6) motion on the facts present here.    The wife's motion

for relief from judgment should have been denied.

     2.   Surviving agreements.   As an additional basis for

relief on appeal, the husband argues that the wife cannot

prevail on her rule 60(b)(6) motion because the terms of the

2014 agreement provide that it "shall survive and remain an

independent contract that is non-modifiable."    This argument was

not raised below and is accordingly waived.   Nevertheless, in

the exercise of our discretion, we comment on this important

issue that continues to arise in the Probate and Family Court.

     Our decisional law has long permitted and encouraged

divorcing parties to enter into written separation agreements


     9
       We note that the uncertainty expressed by the judge also
could have been resolved by his reservation and report of the
issue, as was the situation in Rodman v. Rodman, 470 Mass. at
540.
                                                                   10


that they may elect to have survive the divorce judgment as

independent contracts.    Krapf v. Krapf, 439 Mass. 97, 103

(2003).   See Moore v. Moore, 389 Mass. 21, 24 (1983)

(Commonwealth has a "strong policy . . . favor[ing] survival of

separation agreements, even when such an intent of the parties

is merely implied").     "Such surviving separation agreements may

secure with finality the parties' respective rights and

obligations concerning the division of marital assets, among

other things, according to established contract principles."

Krapf v. Krapf, supra.    See DeCristofaro v. DeCristofaro, 24

Mass. App. Ct. 231, 235-237 (1987); Larson v. Larson, 37 Mass.

App. Ct. 106, 108-109 (1994).    This policy, and the common law

supporting it, remain unchanged under the act.    See St. 2011,

c. 124, § 4(c) ("Under no circumstances shall said sections 48

to 55, inclusive, of said chapter 208 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"); Lalchandani v.

Roddy, 86 Mass. App. Ct. 819, 822-823 (2015).

    While Probate and Family Court judges enjoy considerable

discretion, that discretion does not extend to vitiating a

contract that was negotiated at arm's length and entered into
                                                                    11


freely and voluntarily.    In the absence of fraud, coercion, or

countervailing equities,10 a signatory to an agreement is bound

by its terms.    Knox v. Remick, 371 Mass. 433, 436-437 (1976).

Grindlinger v. Grindlinger, 10 Mass. App. Ct. 823, 824 (1980).

To hold otherwise would negate the integrity and inviolability

of the innumerable surviving agreements relied upon by parties

across the Commonwealth.     We can never know all of the

considerations of parties who elect to resolve their cases in

this manner, nor does the record reflect such considerations

here.     However, to allow an agreement such as the one here to be

unwound based on one party's subsequent determination that she

would have fared better if she had tried the case to completion,

would deprive the other party of the certainty and finality for

which he bargained.

     3.    Conclusion.   The order dated November 24, 2015,

allowing the motion for relief from the judgments is reversed.

The judgments entered February 20, 2014, are reinstated.11

                                      So ordered.




     10
          None of those theories were alleged by the wife in this
case.
     11
       Neither party is awarded appellate attorney's fees or
double costs.
