Probate Court Enforcement of
Prenuptial Agreements
KNOX vs. REMICK
371 Mass. 433
Norfolk. October 4, 1976.---December 8, 1976.
Present: HENNESSEY, C.J., REARDON, BRAUCHER,
KAPLAN, & WILKINS, JJ.
Divorce, Separation agreement, Modification
of decree. Contract, Separation agreement.
Where a trust agreement for child support was
incorporated in a divorce decree, a Probate Court had the power
to modify the decree with respect to child support. [434]
Discussion of the relationship of separation
agreements and divorce judgments containing support orders.
[434--438]
LIBEL for divorce filed in the Probate Court
for the county of Norfolk on June 23, 1967.
A complaint seeking modification was reported
by Podolski, C.J., to the Appeals Court. The Supreme Judicial
Court, on its own initiative, ordered direct review.
Paul J. Sullivan for Barbara Y. Knox.
Stuart DeBard for Paul Remick, Jr.
WILKINS, J. A judge of the Probate Court for
Norfolk County has reported (G. L. c. 215, § 13) a question
concerning his power to modify a decree so as to require a
divorced father to make increased payments for the support of
his minor children. The decree of divorce provides that support
of the minor children "is in accordance with a trust agreement
dated June 12, 1967, filed herewith by the parties, which is
incorporated and made part of this decree by reference, until
the further order of the Court." The former wife, since
remarried, sought an order increasing the husband's support
obligations for their minor children. We conclude that the judge
has the authority to order a modification of child support
provisions in this circumstance.
The decree contained an order for the support
of the minor children. The provision in the decree that support
should be as provided in the separation agreement "until the
further order of the Court" shows a clear intention on the part
of the judge who entered the decree that the decree should and
did contain an order for support of the minor children. However,
we do not rest our decision on that language. The incorporation
of the agreement into the decree was sufficient in itself to
cause the decree to contain an order for support, which in turn
could be modified. We so held recently in Salvesen v. Salvesen,
370 Mass. 608, 610--611 (1976), where we expressly disapproved a
contrary view expressed in Gunter v. Gunter, 3 Mass. App. Ct.
729 (1975). Concern over the impact of the Gunter opinion on a
Probate Court judge's power to modify a decree of the character
involved in this case prompted this report. If our opinion in
the Salvesen case did not dispel that concern, our continued
adherence to the views there expressed should do so.(fn1) We
answer the judge's question by stating that the decree contained
an order for child support and, therefore, the judge is not
precluded from modifying the support order, if he determines
that such a modification is appropriate in the
circumstances.(fn2)
Although what we have said is sufficient to
dispose of the question reported, we think it appropriate to
discuss the relationship of separation agreements and orders
entered in connection with judgments of divorce.(fn3) The
subject is one of daily concern to the judges of the Probate
Courts of the Commonwealth. Two other cases decided by us today
involve the relationship of a separation agreement and a divorce
judgment containing a support order. See Ryan v. Ryan, ante, 430
(1976), and Ross v. Ross, post, 439 (1976).
There is, of course, no conflict if a
separation agreement was not intended to survive the entry of
the divorce judgment. Fabrizio v. Fabrizio, 316 Mass. 343,
346--347 (1944). See Whitney v. Whitney, 316 Mass. 367, 370--371
(1944). In such a case, the support obligations of the parties
are expressed only in the divorce judgment which is subject to
modification on petition.
A Probate Court support order may be modified
to require a lower payment than that agreed to between the
parties in a separation agreement which is intended to survive a
divorce judgment. Wilson v. Caswell, 272 Mass. 297, 301 (1930).
The parties may not preclude a Probate Court judge from reducing
the amount of support ordered to be paid, although the terms of
the agreement may prompt a judge in his discretion not to modify
the order. See Oakes v. Oakes, 266 Mass. 150, 152 (1929). Such a
reduction in mandated support payments removes the threat of
contempt proceedings against the obligated spouse to the extent
of the reduction. On the other hand, although the mandated
support may be reduced, the Probate Court judge has no authority
to modify the agreement itself by reducing the obligated
spouse's contractual commitment. Schillander v. Schillander, 307
Mass. 96, 98--99 (1940). See Glazer v. Silverman, 354 Mass. 177,
178 (1968). Thus, where a husband has obtained a reduction in
his support obligation under a court order, the wife is entitled
to recover in a contract action any difference between the
amount he contracted to pay and the amount the judge has ordered
him to pay. Hills v. Shearer, 355 Mass. 405, 408 (1969). Freeman
v. Sieve, 323 Mass. 652, 656--657 (1949). Welch v. Chapman, 296
Mass. 487, 488 (1937). See Whitney v. Whitney, 316 Mass. 367,
370 (1944).
We consider next the consequences of a
support order which directs the payment of support in an amount
in excess of that provided in a separation agreement. As we have
held today, the terms of a separation agreement cannot bar a
Probate Court judge in all circumstances from entering an order
for payments in excess of those expressed in the separation
agreement. Ryan v. Ryan, supra at 432, and cases cited. What
then is the consequence of an agreement by one spouse to accept
the support payments set forth in a separation agreement in full
satisfaction of all future claims for support or of an agreement
by one spouse to hold the other harmless from the consequences
of a future increase in support obligations resulting from a
court order? We have intimated that such agreements are valid
and enforceable. See Schillander v. Schillander, 307 Mass. 96,
98 (1940). It is true that the principal authority relied on in
making such a statement in the Schillander case is opinions of
this court concerning separation agreements providing for
support to be paid during marriage. See, e.g., Aitchison v.
Chamberlain, 243 Mass. 16, 21 (1922). Perhaps the most outspoken
of all these opinions is Bailey v. Dillon, 186 Mass. 244 (1904),
where we declined to enforce specifically a separation agreement
because the husband could set it up as a bar to separate support
proceedings commenced by the wife in the Probate Court. We said
(at 248) that the agreement would be a bar to the Probate Court
proceedings "if [it] was understandingly entered into by [the
wife], and is free from fraud and coercion, and is fair and
reasonable. ..."
We see no reason why parties to a separation
agreement which anticipates that the marriage will be terminated
by divorce may not agree to a permanent resolution of their
mutual rights and obligations, including support obligations
between them. If a judge rules, either at the time of the entry
of a judgment nisi of divorce or at any subsequent time, that
the agreement was not the product of fraud or coercion, that it
was fair and reasonable at the time of entry of the judgment
nisi, and that the parties clearly agreed on the finality of the
agreement on the subject of interspousal support, the agreement
concerning interspousal support should be specifically enforced,
absent countervailing equities. This has been the result
indicated by this court numerous times in the past. See Reeves
v. Reeves, 318 Mass. 381, 384 (1945), and cases cited.(fn4)
Where, however, the Probate Court judge determines that one
spouse is or will become a public charge, the judge may order
support pursuant to his statutory authority, not specifically
enforcing the separation agreement to the point where the
separation agreement would be used to impose support obligations
on the taxpayers of the Commonwealth. See McMains v. McMains, 15
N.Y.2d 283, 284--285 (1965). As indicated above, there may be
other situations where a Probate Court judge will conclude in
his discretion to deny the equitable relief on specific
enforcement. For example, specific performance of an agreement
concerning support payments might be denied where the plaintiff
had not complied with some other provision in the separation
agreement.
An agreement to fix a spouse's support
obligation for minor children stands on a different footing.
Parents may not bargain away the rights of their children to
support from either one of them. Ryan v. Ryan, supra at 432, and
cases cited. 2 J.F. Lombard, Family Law § 1258 (1967). However,
an informed agreement made by the parents, allocating
responsibility for support of a minor child, should be upheld as
far as possible as between the contracting parties, assuming the
agreement is free from fraud and coercion and was fair and
reasonable at the time the divorce judgment was entered. But a
Probate Court support order may recast the burden of support for
a child, as expressed in a separation agreement, for example,
where (a) a support order would be entered or modified, as the
case may be, in the absence of such an agreement and (b) the
level of available support for the child is inadequate in the
circumstances because one former spouse is incapable financially
of meeting his or her obligation for child support expressed in
that agreement. Although the separation agreement will not be
enforced specifically in that circumstance, the spouse whose
support obligation is increased by the judge's order beyond that
spouse's contractual obligation has a claim for breach of
contract, which may have no practical current value because of
the financial condition of the other spouse.
We believe that all aspects of the dispute
between the former spouses should be resolved in one proceeding.
If one spouse seeks modification of a support order so as to
depart from the terms of the separation agreement, the other
spouse should raise the availability of the separation agreement
as a potential bar in the same proceeding. Probate Courts have
jurisdiction over "matters of equity cognizable under the
general principles of equity jurisprudence. ..." G. L. c. 215, §
6, as appearing in St. 1973, c. 1114, § 63. Although rule 13 of
the Massachusetts Rules of Civil Procedure, 365 Mass. 758 (1974)
(concerning compulsory and permissive counterclaims), has not
been adopted in the Massachusetts Rules of Domestic Relations
Procedure (1975), rule 12 (b) of the rules of civil procedure,
365 Mass. 754 (1974), has been adopted in identical form in the
rules of domestic relations procedure. That rule requires that
every defense must be asserted in the defendant's responsive
pleading. Because, as we view the status of a separation
agreement, the agreement may be a bar to a petition for
modification of a support order, the effect of that agreement
should be raised in the Probate Court.
The case is remanded to the Probate Court for
further proceedings consistent with our opinion.
So ordered.
_____________________
Footnotes:
1 The separation agreement contained a
provision that "the court may be requested to enter a decree
incorporating this agreement in lieu of orders relative to
property, maintenance or alimony." We do not know what the judge
was requested to do, but he did not omit a provision for support
in his order relying on the agreement to cover the subject. He
made a specific order for support.
2 This opinion should not be taken, however
to imply that the Probate Court lacks jurisdiction to order
appropriate child support payments if a judgment nisi of divorce
contains no order concerning child support. See Kates v. Kates,
347 Mass. 783 (1964).
3 Under present practice, a decree nisi of
divorce is called a judgment nisi of divorce. We shall refer to
such decrees and judgments by the current designation.
4 Such finality, after approval of the
agreement by the judge and entry of judgment nisi, exists under
the recently enacted so called no-fault ("irretrievable
breakdown") divorce statute. See G. L. c. 208, § 1A, inserted by
St. 1975, c. 698, § 2. We do not consider here the consequences
of such a divorce judgment and a separation agreement made and
approved under that statute.
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