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13-P-1988                                               Appeals Court

            MANOHAR A. LALCHANDANI    vs.     RUTH H. RODDY.1


                             No. 13-P-1988.

         Hampden.       November 6, 2014. - January 5, 2015.

             Present:     Green, Wolohojian, & Blake, JJ.


Divorce and Separation, Alimony, Modification of judgment,
     Separation agreement. Contract, Separation agreement.
     Practice, Civil, Motion to dismiss.



     Complaint for divorce filed in the Hampden Division of the
Probate and Family Court Department on December 6, 1990.

     A motion to dismiss a complaint for modification, which had
been filed on March 1, 2013, was heard by Barbara M. Hyland, J.


    Mark A. Tanner for the husband.
    George W. Marion for the wife.


    BLAKE, J.       Manohar A. Lalchandani, the former husband

(hereinafter, husband) of Ruth H. Roddy (hereinafter, wife)

appeals the dismissal of his complaint for modification of a

judgment of divorce, in which he sought to decrease or to


    1
        Formerly known as Ruth Lalchandani.
                                                                    2


terminate his alimony obligation.   In a case of first impression

under the Alimony Reform Act of 2011 (act), we determine whether

a payor spouse who has reached full Social Security retirement

age is entitled to modification of his alimony obligation, where

that obligation stems from a separation agreement that survived

entry of the divorce judgment, but was subsequently modified by

agreement of the parties.   See St. 2011, c. 124.   We affirm.2

     Background.   The parties were divorced on September 21,

1992, after nearly twenty-one years of marriage.    The judgment

of divorce incorporated the terms of the parties' separation

agreement (1992 agreement), which provided, in pertinent part,

that the husband was to (1) pay $4,333.33 per month to the wife

as alimony until either party's death or the wife's remarriage,

(2) maintain health insurance for the wife until either party's

death or the wife's remarriage, and (3) maintain a life

insurance policy with a death benefit of $200,000 until either

party's death or the wife's remarriage.   The 1992 agreement

further provided that it was to be incorporated -- but not

merged -- into the divorce judgment, and accordingly would




     2
       We note that no judgment of dismissal appears to have been
entered in the Probate and Family Court. It also does not
appear that the husband was granted leave to file an
interlocutory appeal. In our discretion, we reach the merits of
the issues briefed by the parties. See Scannell v. Attorney
Gen., 70 Mass. App. Ct. 46, 47 n.2 (2007).
                                                                   3


retain independent legal significance.3   Nevertheless, the 1992

agreement allowed the parties to modify its terms by mutual

agreement.   Specifically, the 1992 agreement indicated, "This

Agreement shall not be altered or modified except by an

instrument signed and acknowledged by the Husband and the Wife."

     In October of 1996, the wife filed a complaint for contempt

against the husband for, among other claims, unpaid alimony.

The parties resolved the contempt action by a stipulation filed

on December 17, 1996.   The stipulation was incorporated, but not

merged, into a modification judgment dated January 8, 1997, and

provided that the husband would pay a compromised amount of the

alimony arrearage to the wife, and the wife agreed to be solely

responsible for the cost of her health insurance.   As

consideration for these concessions by the wife, the husband

agreed "not [to] seek a modification of his alimony obligation

until at least January 1, 1999."   In addition, the parties

agreed that the "moratorium on such a modification shall be

considered absolute; except, however, that [the husband] may

seek relief from the court in the event that he becomes totally

disabled such that he is completely prevented from working, and

     3
       Specifically, the agreement stated that it "is intended to
be and remain effective as a contract and shall not be
extinguished by merger as a result of incorporation in any
decree or order or judgment, irrespective of any court decree,
order or judgment to the contrary stating that it shall merge.
This Agreement shall in all events survive such decree, order or
judgment and be forever binding upon the parties."
                                                                    4


any relief granted shall only apply to the period of [the

husband's] total disability."    Similar to the 1992 agreement,

the parties agreed that the stipulation was to be "incorporated

into a judgment by leave of the Court, but the Stipulation shall

survive said judgment as a binding contract with independent

legal significance."

     On March 1, 2013, the husband filed a complaint for

modification seeking to decrease or to terminate his alimony

obligation, alleging that his attainment of full retirement age

constituted a material change of circumstances.    Furthermore, he

alleged:    "It is March 1, 2013, or after and the alimony payor

has reached full retirement age as defined in G. L. c. 208,

§ 48, or will reach full retirement age on or before March 1,

2015."4    The husband did not plead any other grounds in support

of his requested relief.

     The husband's complaint relies on § 3 of the act,5

specifically where it provides:    "Once issued, general term

alimony orders shall terminate upon the payor attaining the full

retirement age."    G. L. c. 208, § 49(f).   Section 5 of the act

further provided that March 1, 2013, would be the first date



     4
       This allegation was pleaded by checking a box on the
court-generated complaint.
     5
       Certain portions of the act are codified at G. L. c. 208,
§§ 48-55.
                                                                    5


upon which a complaint alleging that the payor had reached full

retirement age6 could be filed.

     The wife moved to dismiss the husband's complaint pursuant

to Mass.R.Civ.P. 12(b)(1) and 12(b)(6), 365 Mass. 754 (1974),

and, following a hearing, a Probate and Family Court judge

allowed her motion, concluding that the 1992 agreement and the

subsequent stipulation survived as independent contracts and

therefore were not subject to modification under the act.7

     Discussion.    a.   Modification under the act.   On appeal,

the husband maintains that the act provides for the termination

of his alimony obligation because he has reached full retirement

age and, therefore, that the judge erred in dismissing his

complaint.   We review the allowance of a motion to dismiss de

novo.    Galiastro v. Mortgage Electronic Registration Sys., Inc.,

467 Mass. 160, 164 (2014).    "In assessing the adequacy of a

complaint, we read the complaint's allegations generously and in

the plaintiff's favor."    Vranos v. Skinner, 77 Mass. App. Ct.

280, 287 (2010).    To withstand dismissal, the complaint's

factual allegations, so read, "must be enough to raise a right

     6
       Full retirement age is defined in 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."
     7
       We limit our discussion to rule 12(b)(6), as the wife made
no argument under rule 12(b)(1) in her brief and waived the same
at oral argument.
                                                                  6


to relief above the speculative level."   Iannacchino v. Ford

Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007).

     Although it is true, as the husband points out, that the

act provides that general term alimony orders terminate upon a

payor attaining full retirement age, that provision does not

apply to an alimony obligation that survives as an independent

contract and did not merge into a judgment.   Section 4(c) of the

act explicitly precludes modification of a surviving alimony

obligation:

     "Under no circumstances shall [the act] 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."

     Although the act changed the legal framework under which

alimony may be awarded upon divorce or in a subsequent

modification action,8 it did not reform our long-standing legal

doctrine that surviving, nonmerged alimony provisions are not

modifiable.   The plain language of § 4(c) evidences that the

Legislature did not intend to displace or to alter our

established legal principle that surviving alimony obligations


     8
       The legal framework established by the act has been
explained and discussed in several recent decisions. See Holmes
v. Holmes, 467 Mass. 653 (2014); Zaleski v. Zaleski, 469 Mass.
230 (2014); Hassey v. Hassey, 85 Mass. App. Ct. 518 (2014).
                                                                     7


are not subject to modification.    See Holmes v. Holmes, 467

Mass. 653, 659 (2014) (statutory language is clearest indication

of legislative intent).     In this way, the act respects our

decisional law, which has permitted and encouraged divorcing

parties to enter into written separation agreements 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) (noting "Commonwealth's

strong policy . . . favor[ing] survival of separation

agreements, even when such an intent of the parties is merely

implied").    "Such surviving separation agreements . . . 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, citing DeCristofaro v. DeCristofaro, 24 Mass. App. Ct.

231, 236-237 (1987); Larson v. Larson, 37 Mass. App. Ct. 106,

108-109 (1994).

    Here, the husband acknowledges that the 1992 agreement,

which survived as an independent contract, is not modifiable.

But he posits that because of the terms of the subsequent

stipulation, he is entitled to the benefit of the act because

(1) the parties reserved to themselves the right to modify their

agreement in the future, and (2) the stipulation contemplated

future modifications.     These arguments fail because both the
                                                                    8


1992 agreement and the stipulation provide, by their own terms,

that they are to remain independent contracts, not subject to

modification.   See Parrish v. Parrish, 30 Mass. App. Ct. 78, 83

(1991) (intent of parties, as determined from "whole agreement,"

controls when deciding whether separation agreement survives

judgment of divorce).9,10

     b.   Ambiguity in stipulation.    The husband further argues

that there is an ambiguity in the stipulation sufficient to

withstand a rule 12(b)(6) challenge.     The question whether a

contract is ambiguous is a question of law, as is the

interpretation of a separation agreement.     See Eigerman v.

Putnam Invs., Inc., 450 Mass. 281, 287 (2007); Cavanagh v.

Cavanagh, 33 Mass. App. Ct. 240, 242 (1992).     We review these

claims de novo.




     9
       In light of our conclusion, we need not address the wife's
contention that the complaint is improper because the act is
prospective only.
     10
       The husband made a passing reference to so-called
"countervailing equities" before the judge below, which he
suggested could provide another avenue of relief apart from the
act. Countervailing equities may allow for the modification of
a surviving alimony obligation in certain limited circumstances
such as when a spouse is, or will become, a public charge. See
Knox v. Remick, 371 Mass. 433, 436-437 (1976). Countervailing
equities are "more than a material change of circumstances."
Larson v. Larson, supra at 108. Countervailing equities were
not pleaded in the complaint, and the issue is waived here
because the husband did not raise it in his brief. See
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
                                                                       9


    The husband contends that the stipulation that modified the

1992 agreement, despite clear language that the 1992 agreement

is not modifiable, serves as a waiver of the surviving nature of

the 1992 agreement, rendering it ambiguous.     We disagree.    As

noted by the judge, the "agreement to modify one term or

provision of an otherwise surviving agreement does not open the

door to further modifications.   In fact, the Stipulation goes on

to further reaffirm the termination of alimony provisions as it

appears in the Separation Agreement."     Moreover, "an ambiguity

is not created simply because a controversy exists between

parties, each favoring an interpretation contrary to the other."

Southern Union Co. v. Department of Pub. Util., 458 Mass. 812,

820-821 (2011), quoting from Lumbermens Mut. Cas. Co. v. Offices

Unlimited, Inc., 419 Mass. 462, 466 (1995).     On this record,

there is no ambiguity.

    c.   Procedure below.   The husband also claims that the

judge considered evidence outside of his complaint, essentially

converting the proceeding to a motion for summary judgment.          The

record does not support this claim.     "In evaluating a rule

12(b)(6) motion, we take into consideration 'the allegations in

the complaint, although matters of public record, orders, items

appearing in the record of the case, and exhibits attached to

the complaint, also may be taken into account.'"     Schaer v.

Brandeis Univ., 432 Mass. 474, 477 (2000), quoting 5A Wright &
                                                                 10


Miller, Federal Practice and Procedure § 1357, at 299 (1990).

Here, the judge appropriately took judicial notice of the 1992

agreement and the stipulation, both of which were docketed

pleadings and part of the record.   See, e.g., Fraelick v.

PerkettPR, Inc., 83 Mass. App. Ct. 698, 700 n.3 (2013)

(plaintiff had notice of "extrinsic" document and relied on it

in framing complaint; defendants' motion to dismiss properly not

converted to one for summary judgment), quoting from Golchin v.

Liberty Mut. Ins. Co., 460 Mass. 222, 224 (2011).

     Conclusion.    The order allowing the wife's motion to

dismiss is affirmed, and judgment shall enter accordingly.11

                                    So ordered.




     11
          See note 2, supra.
