NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-159
JANE K.D. KLINE
vs.
PETER F. KLINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (husband) appeals from a judgment after
remand on the wife's civil contempt complaint, and from an order
denying the husband's motion to amend. On appeal, the husband
argues that the judge abused her discretion in (1) considering
parol evidence before finding the defendant violated the
parties' separation agreement by failing to pay weekly alimony,
and (2) ordering the husband to pay alimony arrears after the
original judgment of contempt had been vacated. We affirm.
Background. On December 13, 2012, the parties divorced by
judgment nisi, which incorporated their separation agreement
except for provisions relating to alimony and child support,
which merged with the judgment. Among other provisions, the judgment required the husband to pay $649 per week in alimony to
the wife and thirty-five percent of any bonus or incentive
payment received as part of his employment compensation.
Neither the judgment nor the agreement specified the duration or
a date for termination of the alimony. In January 2021, the
wife filed a complaint for contempt, alleging the husband
unilaterally stopped paying alimony.1 A judge found the husband
guilty of civil contempt and ordered the husband to pay the wife
alimony arrears of $49,973 and $22,285.50 in attorney's fees.
In December 2022, a panel of this court vacated the contempt
judgment, concluding the agreement was ambiguous as to the
husband's alimony obligation and thus not supportive of a
contempt finding. The case was remanded to the judge to "take
parol evidence to determine the parties' intent with regard to
the termination of the husband's alimony obligation." In March
2023, the judge held an evidentiary hearing where both parties
testified and the only exhibit was a transcript of the parties'
colloquy prior to the entry of their divorce judgment.
1 In July 2015, the husband attained full retirement age. He claims he ceased paying alimony to the wife because he started to receive Social Security retirement benefits and became aware of the Alimony Reform Act, which provides that "general term alimony orders shall terminate upon the payor attaining the full retirement age." G. L. c. 208, § 49 (f).
2 In December 2023, the judge issued findings and judgment
after remand.2 As to alimony, the judge found that at the time
the judgment of divorce entered, "it was the intent of both
parties that Husband pay alimony beyond the statutory retirement
age due to Wife's disability and his ongoing employment" and "to
omit any termination date."3 The judge ordered the husband to
pay the wife $49,973 in alimony arrears, to continue making
weekly alimony payments through the date of the court's
temporary order suspending his obligation,4 and to pay the wife's
attorney's fees in the amount of $20,997.63. The husband moved
to amend the findings "so as to state clearly the . . . theory
of the defendant's liability"; his motion was denied.
Discussion. We review a judge's interpretation of a
separation agreement de novo, see Colorio v. Marx, 72 Mass. App.
2 The judge made seventy-four findings of fact and ten conclusions of law.
3 The divorce judgment colloquy transcript revealed that at the hearing, husband's counsel stated the Husband's attainment of retirement age "creates a presumption and our intention in omitting any specific language with respect to termination -- is that realistically Mr. Kline is likely to work beyond -- full retirement age and would presumably continue to pay according to the agreement if for no other reason than to avoid the -- the hassle of modification."
4 In response to the husband's amended complaint for modification, which he filed on May 26, 2022, the judge suspended his alimony obligation in a temporary order on August 23, 2022.
3 Ct. 382, 386 (2008), and a judge's ultimate decision pertaining
to alimony for an abuse of discretion. See, e.g., Pierce v.
Pierce, 455 Mass. 286, 293 (2009); Smith v. Smith, 93 Mass. App.
Ct. 361, 363 (2018).
1. Parol evidence. The husband first argues that where
the divorce judgment was silent on the duration of the alimony,
the judge erred by treating the prior judgment as a contract and
taking parol evidence to determine the parties' intent.
Instead, he argues, the judge should have applied the Alimony
Reform Act, which provides that "general term alimony orders
shall terminate upon the payor attaining the full retirement
age." G. L. c. 208, § 49 (f).5 We disagree.
"[W]here the parties' separation agreement was merged into
the judgment of divorce, it retains no independent legal
significance apart from the judgment. However, . . . to the
extent that a judgment incorporates the terms of a separation
agreement, we may apply contract principles to the
interpretation of the judgment" (quotation and citation
omitted). Cavanaugh v. Cavanaugh, 490 Mass. 398, 413 (2022).
Among the contract principles that may be applied is the use of
parol evidence. Where the language of a separation agreement is
5 The Alimony Reform Act took effect on March 1, 2012, and thus governs the parties' divorce judgment, which was entered on December 13, 2012.
4 ambiguous, "we may consider extrinsic evidence of the parties'
and the court's intent." Id. at 413.
Here, the judge acted well within her discretion. The
alimony provisions of the parties' separation agreement were
incorporated and merged into the judgment of divorce nisi. A
prior panel of this court determined the judgment was ambiguous
on the question of alimony duration and termination and remanded
this matter to the judge with instructions to "take parol
evidence to determine the parties' intent." The judge proceeded
to follow these instructions precisely, holding an evidentiary
hearing and considering the parties' extrinsic evidence, which
consisted of only their testimony and the colloquy of their
divorce hearing.
2. Alimony Reform Act. The husband further contends that
the judge erred by not making specific written findings as
required by the Alimony Reform Act. We are not persuaded.
"A judge has broad discretion when awarding alimony under
the [Alimony Reform Act]." Zaleski v. Zaleski, 469 Mass. 230,
235 (2014). The act provides: "When the court enters an
initial alimony judgment, the court may set a different alimony
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-159
JANE K.D. KLINE
vs.
PETER F. KLINE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant (husband) appeals from a judgment after
remand on the wife's civil contempt complaint, and from an order
denying the husband's motion to amend. On appeal, the husband
argues that the judge abused her discretion in (1) considering
parol evidence before finding the defendant violated the
parties' separation agreement by failing to pay weekly alimony,
and (2) ordering the husband to pay alimony arrears after the
original judgment of contempt had been vacated. We affirm.
Background. On December 13, 2012, the parties divorced by
judgment nisi, which incorporated their separation agreement
except for provisions relating to alimony and child support,
which merged with the judgment. Among other provisions, the judgment required the husband to pay $649 per week in alimony to
the wife and thirty-five percent of any bonus or incentive
payment received as part of his employment compensation.
Neither the judgment nor the agreement specified the duration or
a date for termination of the alimony. In January 2021, the
wife filed a complaint for contempt, alleging the husband
unilaterally stopped paying alimony.1 A judge found the husband
guilty of civil contempt and ordered the husband to pay the wife
alimony arrears of $49,973 and $22,285.50 in attorney's fees.
In December 2022, a panel of this court vacated the contempt
judgment, concluding the agreement was ambiguous as to the
husband's alimony obligation and thus not supportive of a
contempt finding. The case was remanded to the judge to "take
parol evidence to determine the parties' intent with regard to
the termination of the husband's alimony obligation." In March
2023, the judge held an evidentiary hearing where both parties
testified and the only exhibit was a transcript of the parties'
colloquy prior to the entry of their divorce judgment.
1 In July 2015, the husband attained full retirement age. He claims he ceased paying alimony to the wife because he started to receive Social Security retirement benefits and became aware of the Alimony Reform Act, which provides that "general term alimony orders shall terminate upon the payor attaining the full retirement age." G. L. c. 208, § 49 (f).
2 In December 2023, the judge issued findings and judgment
after remand.2 As to alimony, the judge found that at the time
the judgment of divorce entered, "it was the intent of both
parties that Husband pay alimony beyond the statutory retirement
age due to Wife's disability and his ongoing employment" and "to
omit any termination date."3 The judge ordered the husband to
pay the wife $49,973 in alimony arrears, to continue making
weekly alimony payments through the date of the court's
temporary order suspending his obligation,4 and to pay the wife's
attorney's fees in the amount of $20,997.63. The husband moved
to amend the findings "so as to state clearly the . . . theory
of the defendant's liability"; his motion was denied.
Discussion. We review a judge's interpretation of a
separation agreement de novo, see Colorio v. Marx, 72 Mass. App.
2 The judge made seventy-four findings of fact and ten conclusions of law.
3 The divorce judgment colloquy transcript revealed that at the hearing, husband's counsel stated the Husband's attainment of retirement age "creates a presumption and our intention in omitting any specific language with respect to termination -- is that realistically Mr. Kline is likely to work beyond -- full retirement age and would presumably continue to pay according to the agreement if for no other reason than to avoid the -- the hassle of modification."
4 In response to the husband's amended complaint for modification, which he filed on May 26, 2022, the judge suspended his alimony obligation in a temporary order on August 23, 2022.
3 Ct. 382, 386 (2008), and a judge's ultimate decision pertaining
to alimony for an abuse of discretion. See, e.g., Pierce v.
Pierce, 455 Mass. 286, 293 (2009); Smith v. Smith, 93 Mass. App.
Ct. 361, 363 (2018).
1. Parol evidence. The husband first argues that where
the divorce judgment was silent on the duration of the alimony,
the judge erred by treating the prior judgment as a contract and
taking parol evidence to determine the parties' intent.
Instead, he argues, the judge should have applied the Alimony
Reform Act, which provides that "general term alimony orders
shall terminate upon the payor attaining the full retirement
age." G. L. c. 208, § 49 (f).5 We disagree.
"[W]here the parties' separation agreement was merged into
the judgment of divorce, it retains no independent legal
significance apart from the judgment. However, . . . to the
extent that a judgment incorporates the terms of a separation
agreement, we may apply contract principles to the
interpretation of the judgment" (quotation and citation
omitted). Cavanaugh v. Cavanaugh, 490 Mass. 398, 413 (2022).
Among the contract principles that may be applied is the use of
parol evidence. Where the language of a separation agreement is
5 The Alimony Reform Act took effect on March 1, 2012, and thus governs the parties' divorce judgment, which was entered on December 13, 2012.
4 ambiguous, "we may consider extrinsic evidence of the parties'
and the court's intent." Id. at 413.
Here, the judge acted well within her discretion. The
alimony provisions of the parties' separation agreement were
incorporated and merged into the judgment of divorce nisi. A
prior panel of this court determined the judgment was ambiguous
on the question of alimony duration and termination and remanded
this matter to the judge with instructions to "take parol
evidence to determine the parties' intent." The judge proceeded
to follow these instructions precisely, holding an evidentiary
hearing and considering the parties' extrinsic evidence, which
consisted of only their testimony and the colloquy of their
divorce hearing.
2. Alimony Reform Act. The husband further contends that
the judge erred by not making specific written findings as
required by the Alimony Reform Act. We are not persuaded.
"A judge has broad discretion when awarding alimony under
the [Alimony Reform Act]." Zaleski v. Zaleski, 469 Mass. 230,
235 (2014). The act provides: "When the court enters an
initial alimony judgment, the court may set a different alimony
termination date for good cause shown; provided, however, that
in granting deviation, the court shall enter written findings of
the reasons for deviation." G. L. c. 208, § 49 (f) (1).
5 Here, during the divorce judgment colloquy (nine months
after the act had taken effect), the judge asked the parties,
"So there's no stated termination date of the alimony. Is that
correct?" The wife's attorney said "Correct, your Honor," while
the Husband's counsel responded,
"[The parties'] intention in omitting any specific language with respect to termination . . . is that, realistically, [the husband] is likely to work beyond . . . full retirement age and would presumably continue to pay according to the agreement if for no other reason than to avoid the -- the hassle of modification."
In response, the judge accepted counsel's explanation, stating,
"Okay. All right. Okay." The judge's statements on the record
accepting counsel's explanation for the agreement's deviation
from § 49 (f) are tantamount to written findings as required by
the statute. Cf. Commonwealth v. King, 71 Mass. App. Ct. 737,
739 n.5 (2008) ("While written findings are preferable, . . .
oral recitation of reasons for revocation, when transcribed,
satisfies the requirement of a written statement by the fact
finder"). Even if the judge had failed to make the required
written findings, though, the husband agreed and acknowledged in
the divorce judgment colloquy that he has an obligation to pay
alimony even after attaining full retirement age.
3. Alimony award. The husband asserts that the judge
erred in ordering the husband to pay alimony arrears and
reimposing his alimony obligation under the divorce judgment.
6 Even absent a finding of contempt, "judges possess inherent
authority to clarify the rights and obligations of the parties
based upon the issues raised in a complaint for contempt and to
enter an order for payment of monies due pursuant to [their]
determination of the parties' rights under the separation
agreement" (citation and quotation omitted). Griffin v. Kay,
101 Mass. App. Ct. 241, 249 (2022).
Here, the divorce judgment colloquy demonstrated the
parties' intent that the husband pay alimony beyond his
statutory retirement age due to the wife's disability, and that
termination of the husband's alimony obligation required a
modification judgment. On this basis, the judge properly
determined the husband was obligated to pay the alimony he
unilaterally withheld from the wife, ordered the husband to pay
the wife alimony arrears of $49,973 and to continue to pay his
weekly alimony obligation through the date of the judge's
temporary order suspending his obligation, and to pay the wife
attorney's fees in the amount of $20,997.63.6 In assessing
alimony arrears to be paid by the husband, "[t]he judge's order
simply enforced the parties' separation agreement in order to
insure that the plaintiff received her agreed share of the
6 The husband does not challenge the attorney's fees award.
7 marital estate" (citation omitted). Colorio, 72 Mass. App. Ct.
at 389.
It follows that (1) no further explanation of the theory of
the husband's liability was required, so the motion to amend was
property denied; and (2) the wife's request for appellate
attorney's fees must be allowed pursuant to paragraph twenty-
nine of the agreement. Within fourteen days of this decision,
the wife shall file a motion with supporting documentation; the
husband shall have fourteen days thereafter in which to file a
response. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
Judgment affirmed.
Order denying motion to amend affirmed.
By the Court (Englander, Hodgens & Smyth, JJ.7),
Clerk
Entered: July 14, 2025.
7 The panelists are listed in order of seniority.