DeMarco v. DeMarco (Lawyers Weekly No. 11-075-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 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 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 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, […]