Present: Armstrong, C.J., Dreben,
& Duffly, JJ.
Divorce and Separation, Separation agreement, Alimony.
Words, "Substantial inheritance," "Material change of
Complaint for divorce filed in the Norfolk Division of
the Probate and Family Court Department on June 11,
A complaint for alimony, filed on October 14, 1997, was
heard by Robert W. Langlois, J., and a motion for relief
from judgment was heard by him; an additional hearing on
the matter of alimony was had before Eileen M. Shaevel,
Miriam Goldstein Altman for Peter H. Dwight.
Wendy H. Sibbison (Paul M. Doyle with her) for Patricia
The question before us is whether, under the terms of a
separation agreement incorporated in a judgment of
divorce but surviving and having independent legal
significance, the trial judge was correct in awarding
the wife $2,600 per month alimony.
Married in 1960 and divorced on May 29, 1990, the wife
filed a complaint for alimony on October 14, 1997,
relying on the separation agreement. The interpretation
of the following provision is at issue"Based upon the
present existing financial status and an equal division
of the present marital assets, the wife makes no present
claim for alimony and waives her rights to be supported
by the husband except in the event that the husband's
financial situation improves due to a material change of
circumstances whereby the husband receives a substantial
inheritance which increases his income and, in addition,
if at that time the wife's income from all sources is
$35,000 or less, then, in that event, the wife shall
have the right to file a new Complaint for Alimony to
establish alimony payments to her. The provisions of
this paragraph shall not establish an obligation on the
part of the husband to pay any alimony, nor establish a
waiver on the part of the wife to receive any alimony.
It is the intention of the parties that the terms
contained herein shall specifically establish the wife's
right to file an independent Complaint for Alimony for
the sole and specific purpose of obtaining alimony or
support for herself if the Court finds, after hearing,
that the wife requires alimony so as not to deplete her
assets for ordinary living expenses."
Two judges of the Probate Court were involved in this
case. The first judge, although initially denying the
wife's complaint for alimony, on her motion for relief
from judgment vacated the judgment, finding on an agreed
statement of facts(FN1) that the husband's receipt,
albeit in trust, of $435,000 from his father's estate
constituted the receipt by him of a substantial
inheritance. He also found that the wife's income was
under $35,000, and that her expenses exceeded her
income. Based on these findings, he concluded that the
wife had established a prima facie case consistent with
the separation agreement. The matter was set down for
further hearing. For a reason not apparent on the
record, a second judge held that hearing and thereafter
awarded the wife alimony of $2,600 per month.
In his appeal the husband claims (1) that the judges
erred as a matter of law as the husband never received a
substantial inheritance that increased his income; (2)
that the separation agreement provided for a cap of
$35,000 for the wife's annual income and the judge erred
in giving her more than the amount needed to bring her
income up to $35,000; and (3) that the judge erred in
treating her action as a complaint for alimony under G.
L. c. 208, § 34, instead of as a complaint for
modification under c. 208, § 37. We affirm the judgment.
We take our facts from the findings of the second judge
and from the agreed statement of facts. At the time of
the divorce, the parties' assets were divided
approximately in half. The husband's stock portfolio was
then worth approximately $487,000 and the wife's
$462,000. To increase her income, the wife converted
many of her long-term growth stocks into income
producing investments and, as a result, incurred capital
gains taxes of approximately $60,000. Since her divorce
she has substantially reduced her standard of living and
has had to deplete her assets to meet ordinary living
expenses.(FN2) The judge found that the wife, who was 67
at the time of trial, will have spent all of her assets
by age 83. Her annual income is $29,692.
In 1992, the husband's parents created an irrevocable
spendthrift trust giving the husband a special power of
appointment at his death. The trust also provided that
the trustee shall pay the husband "and his issue living
from time to time, so much of the annual net income and
principal of the trust property as the trustee may deem
to be necessary or desirable for the support, comfort,
maintenance, education or benefit of such beneficiary or
beneficiaries . . . . Any income not so distributed
shall be accumulated and added to principal."(FN3)
After the death of the husband's father in 1994,
$435,000 --forty percent of his father's estate after
estate taxes and expenses -- went to the husband, forty
percent to one sister of the husband, and twenty percent
to another sister. The marriages of the sisters were
described in the agreed statement as "intact," and they
received their shares outright. The husband's share,
however, was paid to the trust.(FN4) As of the date of
the agreed statement of facts, April 8, 1998, the trust
had assets valued at $937,508 and the husband's stock
portfolio, which was not invested in income producing
stock, was worth $984,000.
In 1996, the husband received $7,000 from the trust --
the judge mistakenly found that he received this amount
annually. He conceded at the hearing that he had told
the trustee that he did not want any income.
The husband's mother, stipulated to be 94 years old, and
having assets worth between $3 and $4 million dollars,
gives him $10,000 per year. Since his divorce the
husband has lived with his mother. As she pays for all
his needs, his expenses are $52 a week. He also gives
substantial sums to the three adult children of the
The judge concluded that the wife had met the conditions
for bringing the action under the separation agreement:
the husband had inherited substantial funds from his
father, the wife has income of only $29,692 per year,
and she needs alimony because she has to deplete her
assets in order to meet ordinary living expenses. The
judge also ruled that although, ordinarily, G. L. c.
208, § 37, would apply since the issue of alimony was
expressly addressed in the agreement incorporated in the
divorce judgment, see Buckley v. Buckley, 42 Mass. App.
Ct. 716, 722 (1997), here "the parties specifically
agreed that the issue of alimony would be addressed in a
complaint for alimony not a complaint for modification.
. . . By including such language in the Agreement, they
bound themselves to apply the factors under section 34
rather than the traditional material change in
circumstances standard in" c. 208, section 37.
Proceeding to apply the factors under c. 208, § 34, the
judge concluded that the husband "has the ability to pay
a reasonably substantial amount of alimony due to the
amount of income he currently receives, his virtual lack
of expenses, and his access to additional funds if he
need[s] or want[s] them." She then awarded the wife
$2,600 per month.
1. Substantial inheritance. The husband claims that he
did not receive a substantial inheritance because the
trust is a spendthrift trust and because payment of
income and principal to him is not within his control
but is wholly within the discretion of the trustee.
Whether partly a factual determination as urged by the
wife or a legal conclusion as contended by the husband,
the judge's ruling that the husband had received a
substantial inheritance was warranted. Although payments
to the husband are discretionary with the trustee, the
trust provides the husband "with a substantial insurance
policy against economic hardship." Comins v. Comins, 33
Mass. App. Ct. 28, 32 (1992). In such circumstances the
transfer to the trust in 1994 was a substantial
inheritance within the meaning of the separation
agreement. The amount received, $435,000, was almost as
much as was allocated to each party in the original
division of assets and such a sum was undoubtedly
considered to be substantial by the parties at the time
of the divorce.
This conclusion does not entirely resolve the matter as
the separation agreement speaks of a substantial
inheritance which "increases" the husband's income. On
this question we defer to the factual determination of
the trial judge. Although the husband lays stress on the
fact that he received only one distribution of $7,000
from the trust, he acknowledged at trial that he told
the trustee that he did not want any income. In view of
the broad purposes for which the trustee may make
payments to the husband, and in view of the husband's
statement to the trustee, the judge's finding that the
husband had access to additional funds if he needed or
wanted them is not clearly erroneous. The slight
uncertainty of his access to income because of the
discretion vested in the trustee and the spendthrift
provision is not in these circumstances dispositive. See
Davidson v. Davidson, 19 Mass. App. Ct. 364, 372
(1985).(FN5) A party's potential income rather than his
actual income as limited by his voluntary action may be
considered by a trial judge. See Schuler v. Schuler, 382
Mass. 366, 374 (1981), overruled in part on other
grounds, Keller v. O'Brien, 425 Mass. 774, 777 n.7
(1997); Bassette v. Bartolucci, 38 Mass App. Ct. 732,
735 (1995); Cooper v. Cooper, 43 Mass. App. Ct. 51, 53
2. $35,000 cap. The husband's argument that the
provision provides a ceiling on the amount to be awarded
to the wife is without merit. The amount is directed to
the wife's right to seek alimony and not to the amount
the judge may award.
3. The proper standard, c. 208, § 34, or § 37. This
question is somewhat more troublesome because the
provision, as the husband points out, speaks of a
"material change of circumstances," which is the
standard to be employed under § 37. See Schuler v.
Schuler, 382 Mass. at 368; Buckley v. Buckley, 42 Mass.
App. Ct. at 720. We, however, consider the trial judge's
interpretation warranted. The use of the phrase
"material change of circumstances" in the agreement
defines the conditions under which the wife may seek
alimony and does not appear to be directed to the
standard to be employed by a judge. An examination of
the separation agreement as a whole indicates a
sophisticated use of terminology and knowledge of the
intricacies of divorce law by its drafters.(FN6) In such
circumstances the use of the term "an independent
Complaint for Alimony" should be accorded its literal
meaning. Compare Cherrington v. Cherrington, 404 Mass.
267, 269-270 (1989). Unlike the situation in Buckley v.
Buckley, supra at 720, it may not be inferred that the
parties "implicitly agreed that any future alimony
request would be governed by the § 37 material change in
The wife may apply for an award of appellate attorney's
fees, in accordance with the procedures set forth in
Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989).
(FN1) Although the husband objected to some of the facts
on the ground of relevancy, he accepted them "as agreed,
if the court deems them admissible over [his]
(FN2) At the time of trial in November, 1998, her assets
(FN3) The husband takes issue with the suggestion of the
first judge that payment for the husband's "benefit"
could include his obligations under a court order. We
need not reach this question. See Restatement (Third) of
Trusts c. 12, § 59 (Tent. Draft No. 2, 1999). See also
Gershaw v. Gershfield, ante 81, 92 n.18 (2001).
(FN4) The judge found "that it is highly likely that a
principal reason for [the husband] being treated
differently from his siblings (by having his inheritance
placed in trust rather than given to him outright) was
in order to defeat any claim for alimony that [the wife]
could make if Peter received a 'substantial inheritance'
as anticipated in the divorce agreement." We do not rely
on this finding as it is unnecessary to our
interpretation of the separation agreement. But see
Lauricella v. Lauricella, 409 Mass. 211, 216 n.7 (1991).
(FN5) Indeed, the trustee would be under a duty to
provide income from the trust to the husband should the
trustee determine, upon inquiry, that the husband needed
it. Marsman v. Nasca, 30 Mass. App. Ct. 789, 795-797
(FN6) The importance of heeding the parties' intentions
is manifest in our cases. When a separation agreement,
fair and reasonable at the time of the divorce and not
the product of fraud and coercion, is incorporated into
the judgment but has independent legal significance,
more than a material change in circumstances is required
before a judge is justified in modifying the agreement.
Stansel v. Stansel, 385 Mass. 510, 515 (1982). See Knox
v. Remick, 371 Mass. 433, 437 (1976). Even where the
agreement merges in the judgment and does not survive,
to the extent possible, the expressed desires of the
parties should be taken into account. Bercume v.
Bercume, 428 Mass. 635, 643-644 (1999). Huddleston v.
Huddleston, 51 Mass. App. Ct. 563, 569 (2001).
(FN7) We note that in the provision for child support
the parties spoke of a complaint for modification
suggesting again that the parties were careful in their
use of terminology.
(FN8) Although the trial judge did not treat the issue
under § 37, in view of the significant appreciation of
the husband's assets and the decrease in the wife's, the
husband's position even if sustained would seem a