McManus v. McManus (Lawyers Weekly No. 11-104-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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. 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 terms of the divorce judgment, the agreement survives as a contract with independent legal significance insofar […]