Domestic relations – Alimony – Retirement

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Where (1) a Probate & Family Court judge found a divorced defendant not guilty of contempt and (2) the plaintiff has filed an appeal contending that the judge abused her discretion in finding that the defendant did not violate the terms of the parties’ merged separation agreement by reducing, and eventually ceasing, “regular” alimony payments upon his retirement, the judge’s decision must be vacated and a remand ordered because of an ambiguity in the agreement.

“At issue in this matter are two provisions of the separation agreement that are in tension with each other. The first is the ‘regular alimony’ provision, which obligates the husband to pay thirty-five percent of his base salary to the wife. The second is the termination provision, which states that the parties ‘agreed to deviate’ from the Alimony Reform Act (act) ‘as it pertains to the termination of alimony … such that [the husband’s] alimony obligation will not automatically terminate upon [the husband] reaching full social security retirement age.’ The facts of this case illustrate why these provisions are ambiguous when read together. The husband, despite the termination provision that (absent a modification) extended his alimony obligation past his retirement, sought to reduce his payment of regular alimony to zero dollars by voluntarily reducing his salary to zero dollars. When read in isolation, the percentage-based obligation for paying regular alimony might seem to allow the husband to cease paying upon ceasing work, conflicting with the parties’ agreement that the husband seek a judicial modification before terminating alimony payments even upon reaching full retirement age. Read together, once the husband attains full retirement age, the provisions may risk negating each other.

“The ambiguity is evident in the parties’ positions — each maintains the agreement is unambiguous, with each asserting the opposite meaning as correct. On appeal, the wife contends that the judge erroneously interpreted the two provisions and asserts that the provision stating the parties’ intent to deviate from the act obligated the husband ‘to pay alimony at the same amount even after he reaches full retirement age unless and until a trial court judge first modifies those obligations pursuant to a [c]omplaint for [m]odification.’ The husband challenges the wife’s interpretation, adopting the judge’s reasoning that he did not violate his alimony obligation because thirty-five percent of zero income results in a zero-dollar regular alimony payment under the agreement.

“Neither interpretation is self-evidently correct, because each interpretation appears to place too much weight on one provision and too little on the other. …

“… Where, as here, ‘a separation agreement “is susceptible of more than one meaning and reasonably intelligent persons would differ as to which meaning is the proper one,” the language is ambiguous, and resort may be made to extrinsic evidence.’ Jones v. Jones, 101 Mass. App. Ct. 673, 681 (2022), quoting Bercume v. Bercume, 428 Mass. 635, 641 (1999). On remand, to resolve the ambiguity of the agreement, the judge should consider extrinsic evidence provided by the parties regarding their intent in drafting the seemingly contradictory provisions. This evidence should inform an interpretation that ‘“accord[s] with justice and common sense and the probable intention of the parties … [and] accomplish[es] an honest and straightforward end [and avoids], if possible, any construction . . . that is unreasonable or inequitable.”’ Krapf v. Krapf, 439 Mass. 97, 105 (2003), quoting Clark v. State St. Trust Co., 270 Mass. 140, 153 (1930). The extrinsic evidence also ‘cannot be used to contradict or change the written terms, but only to remove or to explain the existing uncertainty or ambiguity.’ General Convention of the New Jerusalem in the U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832, 836 (2007). …

“The judgment dated March 27, 2024, finding the husband not guilty of contempt, is vacated. The case is remanded to the Probate and Family Court for further proceedings consistent with this memorandum and order.”

Scopa Braunstein v. Braunstein (Lawyers Weekly No. 81-111-25) (9 pages) (Docket No. 24-P-703) (July 15, 2025).

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