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. |
