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Divorce Mediation Blog

The Return of DeMarco v. DeMarco: Contract Trumps Hindsight

Wednesday, August 10, 2016

Some months back, we commented on a trial court decision in the case of DeMarco v. DeMarco. The parties entered into an agreement for the ex-husband to pay a lump sum of cash, in return for a termination of alimony. It followed a discussion with the judge at the outset of trial, in which the court and the lawyers expressed a mutual understanding that M.G.L., ch. 208, §49(f) presaged termination of alimony by reason of the husband’s age. If tried, the wife would likely lose her alimony, with nothing in return. She chose to get something, by settling.

It turned out that the professionals were wrong (as were many of their colleagues), when the Supreme Judicial Court ruled in the Rodman, Chin & Doktor trilogy of cases that §49(f) would only apply to divorces decided after March 1, 2012, of which this case was not one. The wife then sought “relief” from the modification judgment, and contract; and the trial judge embraced personal responsibility for the wife’s decision to settle, in an extraordinary ruling. At the time we worried that the court’s principled decision, which we admired personally, was problematic because of its impact on the finality of agreements, and the judgments into which they incorporate.

The husband appealed and the Massachusetts Appeals Court reversed, recently, in a clear-eyed decision. Quite simply, the panel concluded, the lawyers and judge wrongly predicted the prospective nature of §49(f), and the wife chose to rely on that common misunderstanding in making her deal. In doing so, she did not just walk away. She demanded and received cash consideration for doing so. Thus, she did not rely on “the law” at all, but rather weighed out the risks and benefits of proceeding to trial and came down on the side of salvaging a bad situation. It happens every day in every court in America.

The Appeals Court correctly concluded that the wife’s interest in requesting relief was unhappiness at the result, with benefit of hindsight; and that her cause did not thread the extremely narrow needle of Mass. Dom. Rel. P. 60(b)(5). Litigants make deals every day because of judgment calls about the law’s application to their facts. The only thing that stood this case apart was that it addressed an extremely controversial aspect of a highly contentious new statute (Alimony Reform Act), and that an apparent consensus of judge and lawyers preceded its conclusion.

In the end, the settlement was supported by sound contract principles, unaltered by the SJC’s later “clarification” of the law; and the appellate court reversed. We don’t doubt the legal correctness of the Appeals Court’s decision, which does not reduce, in the least the gallantry of the trial judge’s action. Too few grab responsibility to themselves, even at the risk of being wrong.

In an interesting side-note, we have wondered here previously whether or not the ARA’s blanket statement, in “uncodified” §4(c), that the parties’ surviving agreement that there shall be no alimony is absolutely binding on the trial court, as it states, or if it is still subject to the court-made exception of “countervailing equities”, as expressed in 1976’s Knox v. Remick, and others. The DeMarco panel, at least, believe that this equitable construct survives ARA, as expressed in dicta, at the conclusion of its decision. In other words, surviving agreements to waive or terminate alimony are “almost impossible to change”, in the DeMarco judge’s words, and not absolutely binding as §4(c) suggests, at least until further word.



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