In our last 2 entries, we reviewed the common central holding of these three cases; namely, that with the sole exception of the presumptive general term alimony durational limits for marriages that lasted 20 or fewer years, alimony payors under judgments that preceded the Alimony Reform Act (eff. 3.1.12) (ARA) cannot benefit from the presumptive retirement age termination provisions of the statute; and, then, the unfortunate treatment of cohabitation in Chin v. Merriot.
Now, we dig into the footnotes of Rodman v. Rodman and worry about a return engagement that Footnote 5 invites with 2001’s Huddleston v. Huddleston. Yikes! We apologize in advance for the length of this blog.
Merger and Survival
Generations of lawyers and clients have chosen between two distinct forms of support agreement: those that merge in the Probate and Family Court’s divorce judgment; and those that survive incorporation with independent legal significance. The differences were stark.
Survival meant that parties together could preclude the court from changing their agreed contractual alimony terms absent express subsequent agreement. Appellate courts limited this power at certain extremes (public charge and major default exceptions of Knox v. Remick and Stansel v. Stansel); but in the main, this prerogative, once incorporated into a divorce judgment, was solid and predictable.
For everyone else, there was merger. Modification of merging agreements, by definition, mirrored judge-made decisions. The parties did not challenge the trial court’s right to modify all support terms of judgments into which agreements had merged, when the circumstances in which they were negotiated had materially changed. Everyone’s safety net was preserved by future court access. Sometimes merger was actively desired; and at others it was all that could be agreed. Everyone knew what they were getting, or so they thought.
Bercume v. Bercume
The erosion between merger and survival began innocently enough with the SJC’s Bercume v. Bercume in 1999. In that case, Justice Marshall observed that the Probate and Family Court’s modification powers should be informed by the parties’ expressed intentions in merged agreements. The modifying court did not write on a clean slate, but on one in which the parties expressed intent ought be determined and respected. Bercume was a curb of sorts on the Probate and Family Court’s modification authority; but it did not shake the foundation of merger and survival theory.
Huddleston v. Huddleston
That is, until Huddleston v. Huddleston came along. In Huddleston, the parties executed a merging support agreement that only identified death of either spouse, or remarriage of the alimony payee, as causes for automatic termination of payment obligations. Common professional understanding of this termination language was that death, remarriage or a judgment of modification for other materially changed circumstances would, or could, result in termination. This was so because of context: merger.
The Wife sought increased alimony; but instead, the trial judge ordered that support would continue unchanged, but then abate at the Husband’s age 65 (a proxy for retirement age - not a recognized concept in pre-ARA Massachusetts). The wife appealed and in Huddleston v. Huddleston, the Massachusetts Appeals Court vacated the age 65 cut-off.
The result could have been justified on prevailing modification law alone. The Husband was not yet at age 65. The facts and circumstances that might exist when he did were then unknown; therefore, the Probate and Family Court judge could be reversed for anticipatory modification unsupported by facts found or knowable. I
Instead, the Appeals Court one-upped Bercume. Justice Duffly wrote that the trial court should have inferred that the parties’ silence about other bases for modification indicated their mutual intention that other modifications never occur. Relying on Bercume v. Bercume, and re-shaping it by extension, the Huddleston court vacated the termination provisions of the modification judgment, precluded as it were, by the sound of the parties’ silence.
Bercume’s erosion became Huddleston’s earthquake.
Reaction to Huddleston
Some cases make divorce lawyers sit up straight as they read. This one raised lawyer-hackles everywhere. Hadn’t we been taught since law school that the court could modify any merged support agreement, to meet materially changed circumstances? Didn’t judge after trial judge tell us to quit fussing, and wasting our clients’ money, by negotiating about endless permutations of what might, or might not, lead to modification? “Don’t worry”, they said. “It’ll be modifiable.”
But, Huddleston made them wrong. In the new century, silence could be louder than words in a merged agreement. “Death or remarriage” no longer read like “death, remarriage or other material change of circumstances.” The parties’ merged agreement had been construed at the appellate level like a surviving contract. Ever since, divorce lawyers have struggled to preserve modification rights in merged alimony agreements, never knowing for sure the ultimate result, clarity and predictability taking the hit.
After Huddleston, just what was the difference between merger and survival?
ARA § 4(c)
Uncodified §4(c) of the ARA states that a court may not modify “… an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable…” Unfortunately the drafters did not distinguish between merging and surviving agreements in this regard.
As a result, since ARA’s enactment, we have worried that this statutory choice, or oversight, would bring down the wall between merger and survival. In an earlier presentation of “The Seven Sins of Alimony”, we fretted that §4(c) could become “Bercume on steroids” in the appellate courts’ hands, meaning that parties’ recitals in merged support agreements might exceed the justifiable influence to which Bercume entitles them; and making them, instead, binding permanently on the court.
Rodman v. Rodman
Then came Rodman v. Rodman. Now writing for the SJC, Justice Duffly observed at Footnote 5 that:
We agree that the first clause [of §4(c)] appears, by implication, to include merged agreements, and that the Legislature intended to honor clear expressions by the parties regarding the terms under which alimony may terminate.
Consigned to a footnote, but neither gratuitous nor insignificant because of its editorial placement, the SJC signaled that merged agreements, which evidence a mutual intent to deny the court authority to modify alimony, may have preclusive effect, as a matter of law. Now, where is the firewall between merger and survival?
When Huddleston Meets Rodman
This is when it gets really scary.
Some day, some party will ask the SJC to rule that a merged agreement that is silent about some or all modification contingencies should have the same legal effect as a surviving agreement that is similarly silent. In other words, in any form of agreement, if authority to modify is not spelled out in sufficiently specific form, modification ought be precluded.
How can the SJC say “no”, when Judge Duffly wrote both Rodman and Huddleston? If they do not, Bercume plus Rodman plus Huddleston will equal the end of merger as we know it. The circle will be closed and merged agreements will equal surviving agreements.
What then becomes of the thousands of merged agreements executed before and after Rodman? How can lawyers advise clients about modification rights or vulnerabilities with anything like assurance? Will people who cannot achieve a surviving agreement (as most cannot) default to a judge-made decision after trial to avoid the vagaries of appellate interpretation of modification rights in their merged deals? At least, so far, judgments entered by a judge, after trial, are still modifiable upon a material change of circumstances.
We hope that our projection proves more paranoid than correct. Otherwise, woe is to the alimony payors and payees, whose expectations of modifiability will be toppled. And what about legal counsel, who did not insist upon, or succeed in attaining, merged agreement language that anticipates every possible basis for a future modification by the court?
Now, that’s something that should keep alimony payors, payees and their counsel up at night.