Chin v. Merriot

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SJC-11715

CHESTER CHIN vs. EDITH E. MERRIOT.1

Franklin. October 6, 2014. - January 30, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Divorce and Separation, Alimony, Modification of judgment,
Separation agreement. Statute, Retroactive application.

Complaint for divorce filed in the Franklin Division of the
Probate and Family Court Department on January 11, 2011.

A complaint for modification, filed on March 11, 2013, was heard
by Beth A. Crawford, J.

The Supreme Judicial Court granted an application for direct
appellate review.

William Sanford Durland, III, for Chester Chin.
Leslie H. Powers for Edith E. Merriot.
The following submitted briefs amicus curiae:
Rachel B. Biscardi for Women's Bar Association of
Massachusetts.
Richard M. Novitch, Maureen McBrien, & Charles P. Kindregan,
pro se.
David H. Lee & Holly A. Hinte, pro se.

DUFFLY, J. After twelve years of marriage, Chester Chin and

1
Formerly known as Edith E. Chin.
 2

Edith E. Merriot were divorced by a judgment of divorce nisi in

August, 2011. At the time of the divorce, Chin was sixty-seven years

old and Merriot was sixty-nine. Pursuant to a merged provision of

the parties' separation agreement, Chin was obligated to pay alimony

to Merriot in the amount of $650 per month until "the death of either

party or the wife's remarriage."

In March, 2013, Chin filed an amended complaint for modification

in the Probate and Family Court in which he sought to terminate his

alimony obligation. To support his claim for relief, Chin asserted

as "changed circumstances" that he had attained the age of

sixty-eight, "full retirement age" as defined by G. L. c. 208, § 48.

He argued that, pursuant to G. L. c. 208, § 49 (f) (retirement

provision), "general term alimony orders shall terminate upon the

payor attaining the full retirement age." Chin thereafter filed an

amended complaint asserting, as a further change in circumstances,

that Merriot had "been cohabiting with another person . . . and

maintaining a common household" for more than three months;

cohabitation alone is a basis for termination of alimony under G. L.

c. 208, § 49 (d) (cohabitation provision).

The retirement and cohabitation provisions on which Chin relies

were enacted as part of the Alimony Reform Act of 2011, St. 2011,

c. 124 (alimony reform act or act). The act was made effective as

of March 1, 2012, more than seven months after entry of the parties'
 3

judgment of divorce nisi. Following a trial on the complaint for

modification, a Probate and Family Court judge concluded that neither

provision applied retroactively to divorce judgments ordering

general term alimony that were in existence prior to the effective

date of the alimony reform act. Applying the change of circumstances

standard in effect before March 1, 2012, the judge determined that

Chin had not shown a material change of circumstances warranting

modification of the alimony order,2 and dismissed the complaint.

Chin appealed from the judgment of dismissal,3 and we allowed his

petition for direct appellate review.

The question we confront in this case is whether modification

of an obligation to pay periodic or general term alimony that is

contained in a merged provision of a divorce judgment is governed

by the alimony reform act, where the act became effective after the

date of entry of the judgment.4 We conclude that, with respect to

2
Chin does not challenge the judge's conclusion that he did not
show a material change in the parties' circumstances, the applicable
standard prior to enactment of the Alimony Reform Act of 2011, St.
2011, c. 124 (alimony reform act).
3
The complaint sought also to terminate Chin's obligation to
maintain life insurance for the benefit of Edith E. Merriot. The
judge denied the request; that denial is not part of Chin's appeal.
4
Because both the judgment nisi and the judgment absolute
predate the effective date of the alimony reform act, we need not
decide whether language in the act that its provisions "apply
prospectively" to "alimony judgments" refers to judgments nisi or
to absolute judgments.
 4

the alimony obligation at issue here, both the retirement provision

and the cohabitation provision apply prospectively, and therefore

afford no basis upon which to terminate the alimony order. That the

Legislature intended these provisions to apply prospectively is

reflected in the language of several uncodified provisions of the

alimony reform act, which we consider together with the codified

provisions at issue here. Therefore, we affirm the judgment of

dismissal.5

1. Background. We summarize the judge's findings of fact,

adding certain uncontested facts from the record. Chin and Merriot

were married in Massachusetts on November 28, 1998. Both had been

married previously; Chin has two children from his prior marriage,

and Merriot has four children from hers. The parties' marriage

produced no children. During their marriage, Chin had been a teacher

and Merriot a paraprofessional and substitute teacher. By the time

of the divorce, each had retired.

The parties last lived together in January, 2011. On August

17, 2011, they entered into a separation agreement allocating their

real and personal property. Article VI of that agreement provided

that Chin "shall pay to the Wife alimony in the monthly amount of

six hundred and fifty ($650) dollars . . . . The Husband's alimony

5
We acknowledge the amicus briefs of the Women's Bar
Association of Massachusetts; Richard M. Novitch, Maureen McBrien,
and Charles P. Kindregan; and David H. Lee and Holly A. Hinte.
 5

obligation shall terminate upon the death of either party or the

Wife's remarriage." Under the terms of the separation agreement,

"Article VI . . . shall be merged and incorporated into the divorce

judgment and shall not retain independent legal significance."6

A judgment of divorce nisi entered on August 17, 2011.7 The

judgment reflects that the judge found the parties' agreement to be

"fair, equitable and reasonable, voluntarily entered into and not

the product of coercion or duress." The judgment provides also that

the agreement "shall survive and remain as an independent contract

between the parties, except with respect to Article VI, which is

incorporated and merged herein." When the divorce judgment nisi

entered, Chin was sixty-seven years old.

One year after the effective date of the alimony reform act,

6
The agreement also allocated responsibility for outstanding
debt, made provision for medical insurance and uninsured dental and
medical costs, and contained general representations that the
parties had made full financial disclosure to each other; stated that
they had entered into the agreement freely, voluntarily, and fully
apprised of their rights; and stated that they believed the agreement
to be "fair, adequate and reasonable . . . commensurate with [their]
needs, income, and financial worth, and their previous standard of
living and with full consideration of . . . all factors" set forth
in G. L. c. 208, § 34.
7
The judgment of divorce nisi was amended due to a scrivener's
error. The amended judgment was entered on the Probate and Family
Court docket on August 26, 2011, dated nunc pro tunc to August 17,
2011. A judgment of divorce becomes absolute ninety days after the
entry of a judgment nisi. See G. L. c. 208, § 21. It is unclear
from the record why the judgment absolute in this case entered on
January 19, 2012.
 6

Chin filed a complaint for modification asserting that he had reached

"full retirement age" according to the act, and seeking termination

of his obligation to pay alimony. Merriot denied that there had been

a material change in circumstances because, at the time the divorce

judgment entered, her former husband already had passed "full

retirement age." Chin thereafter amended his complaint to include

as an additional ground for modification that Merriot had been

cohabiting with another person since November 19, 2012.

Following a trial on the complaint for modification, the judge

found that Chin had remarried in 2012, and, at the time of trial,

Chin, his new wife, and her sixteen year old son were residing

together. Chin was the primary source of support for his new wife

and stepson, and his wife contributed some income from child support

and part-time employment. Merriot "moved in with her significant

other" in September, 2012, and, by the time of trial, he and Merriot

were "in a committed relationship and . . . [were] economically

interdependent"; they had "continuously maintained a common

household for more than three months."

The judge concluded that modification of the alimony order was

not governed by either the retirement provision or the cohabitation

provision, because uncodified § 4 of the alimony reform act provides

that G. L. c. 208, § 49, applies prospectively to alimony judgments

entered on or after March 1, 2012. St. 2011, c. 124, ' 4 (uncodified
 7

section). The judge therefore looked to the statute governing

modification of divorce judgments that was in effect prior to

enactment of the alimony reform act to inform her determination

whether there had been a material change in the parties'

circumstances warranting modification of the amount of alimony. See

Pierce v. Pierce, 455 Mass. 286, 293 (2009), quoting Schuler v.

Schuler, 382 Mass. 366, 368 (1981). The judge concluded that Chin

had not established a material change in circumstances and dismissed

the amended complaint.

2. Discussion. Under the alimony reform act, the periodic

payment of support to an economically dependent spouse falls within

the definition of "general term alimony." G. L. c. 208, § 48. See

Holmes v. Holmes, 467 Mass. 653, 656 (2014) (prior alimony statute

"recognized only one category of postjudgment alimony, which the

[alimony] reform act now classifies as 'general term alimony'").

Chin contends that, under the retirement provision, his obligation

to pay alimony must be terminated because, "[o]nce issued, general

term alimony orders shall terminate upon the payor attaining the full

retirement age." See G. L. c. 208, § 49 (f). Chin also maintains

that he is entitled to termination of the alimony order under the

cohabitation provision, which provides:

"General term alimony shall be suspended, reduced, or
terminated upon the cohabitation of the recipient spouse when
the payor shows that the recipient spouse has maintained a
 8

common household, as defined in this subsection, with another
person for a continuous period of at least [three] months."

G. L. c. 208, § 49 (d). Chin's argument effectively disregards the

uncodified provisions of the alimony reform act, contained in St.

2011, c. 124 §§ 4-6 (uncodified sections). These provisions reflect

the Legislature's intent that the act apply prospectively except as

to "durational limits," which are based on the length of the parties'

marriage, and the clear indication that neither retirement nor

cohabitation constitute durational limits.8

a. Standard of review. We review questions of statutory

interpretation de novo. Sheehan v. Weaver, 467 Mass. 734, 737

(2014). Under well-established principles of statutory

construction, "a statute must be interpreted according to the intent

of the Legislature ascertained from all its words construed by the

ordinary and approved usage of the language, considered in connection

with the cause of its enactment, the mischief or imperfection to be

remedied and the main object to be accomplished, to the end that the

purpose of its framers may be effectuated." Commonwealth v.

Figueroa, 464 Mass. 365, 368 (2013), quoting Harvard Crimson, Inc.

8
The term "durational limits" is not defined in the uncodified
sections of the alimony reform act, St. 2011, c. 124, §§ 4-6
(uncodified sections). However, the term is also used in G. L.
c. 208, § 49 (b), inserted by St. 2011, c. 124, § 3. We interpret
"durational limits" as it appears in the uncodified sections as
referring specifically and solely to the provisions of G. L. c. 208,
§ 49 (b).
 9

v. President & Fellows of Harvard College, 445 Mass. 745, 749 (2006).

Although we look first to the plain language of the provision at issue

to ascertain the intent of the Legislature, we consider also other

sections of the statute, and examine the pertinent language in the

context of the entire statute. "Significantly, a statute must be

interpreted 'as a whole'; it is improper to confine interpretation

to the single section to be construed." Johnson v. Kindred

Healthcare, Inc., 466 Mass. 779, 784 (2014), quoting Commonwealth

v. Keefner, 461 Mass. 507, 511 (2012). Cf. Abramski v. United

States, 134 S. Ct. 2259, 2267 (2014), quoting Maracich v. Spears,

133 S. Ct. 2191, 2209 (2013) ("we must [as usual] interpret the

relevant words not in a vacuum, but with reference to the statutory

context, 'structure, history and purpose'").

The same standards of construction are applicable to both

codified and uncodified provisions of the general laws. We

therefore construe the language of the uncodified sections of the

alimony reform act together with the codified sections, according

to their plain meaning, unless reliance on the literal words would

produce an absurd result, or a result contrary to the Legislature's

manifest intent. See Murphy v. Department of Correction, 429 Mass.

736, 737-738 (1999), and cases cited.

Sections 4 through 6 of the uncodified provisions of the alimony

reform act provide essential context. As a general matter,
 10

uncodified provisions of an act express the Legislature's view on

some aspect of its operation; they are not the source of the

substantive provisions of the law. Uncodified provisions may, for

example, address when the legislation will take effect, state if it

will have retroactive effect, and provide mechanisms for handling

special situations during the transition period between the date of

enactment and the effective date of the new statute. See, e.g.,

Murphy v. Department of Correction, supra at 737 (uncodified

provision stating act's effective date and that act will apply

retroactively); Commissioner of Banks v. Chase Sec. Corp., 298 Mass.

285, 309 (1937) (uncodified provision precluding application of act

to agreements existing prior to act's effective date which were valid

under earlier statute); Commonwealth v. Abrahams, 85 Mass. App. Ct.

150, 153-154 (2014) (uncodified provision "imposes early deadline

for submission of" biological samples). Uncodified provisions also

may include severability clauses, savings clauses, and statements

concerning the fiscal consequences of legislation. See, e.g.,

Franchise Tax Bd. v. Superior Court, 221 Cal. App. 4th 647, 661-662

(2013).

Here, uncodified § 7 of St. 2011, c. 124, sets March 1, 2012,

as the effective date of the alimony reform act; uncodified §§ 4

through 6 describe whether, to what extent, and when, the act will
 11

be applied to alimony judgments in existence prior to that date.9

9
"SECTION 4. (a) [General Laws c. 208, § 49,] shall apply
prospectively, such that alimony judgments entered before March 1,
2012 shall terminate only under such judgments, under a subsequent
modification or as otherwise provided for in this act.

"(b) [G. L. c. 208, §§ 48-55], inclusive, . . . shall not be
deemed a material change of circumstance that warrants modification
of the amount of existing alimony judgments; provided, however, that
existing alimony judgments that exceed the durational limits under
[G. L. c. 208, § 49,] shall be deemed a material change of
circumstance that warrant modification.

"Existing alimony awards shall be deemed general term alimony.
Existing alimony awards which exceed the durational limits
established in [G. L. c. 208, § 49,] shall be modified upon a
complaint for modification without additional material change of
circumstance, unless the court finds that deviation from the
durational limits is warranted.

"(c) Under no circumstances shall [G. L. c. 208, §§ 48-55],
inclusive, . . . provide a right to seek or receive modification of
an existing alimony judgment in which the parties have agreed that
their alimony judgment is not modifiable, or in which the parties
have expressed their intention that their agreed alimony provisions
survive the judgment and therefore are not modifiable.

"SECTION 5. Any complaint for modification filed by a payor
under [§] 4 of this act solely because the existing alimony judgment
exceeds the durational limits of [G. L. c. 208, § 49,] may only be
filed under the following time limits:

"(1) Payors who were married to the alimony recipient [five]
years or less, may file a modification action on or after March 1,
2013.

"(2) Payors who were married to the alimony recipient [ten]
years or less, but more than [five] years, may file a modification
action on or after March 1, 2014.

"(3) Payors who were married to the alimony recipient [fifteen]
years or less, but more than [ten] years, may file a modification
action on or after March 1, 2015.
 12

b. Prospective application of retirement and cohabitation

provisions. Of particular import here is uncodified § 4 (a), which

states that G. L. c. 208, § 49, "shall apply prospectively, such that

alimony judgments entered before March 1, 2012 shall terminate only

under such judgments, under a subsequent modification or as otherwise

provided for in this act." This sentence sets out three separate

circumstances under which alimony included in a judgment that

predated the effective date of the alimony reform act will be

terminated. Chin appears to read the sentence as meaning that,

because the alimony reform act expressly provides for termination

of alimony on retirement or cohabitation by the recipient spouse,

he currently is entitled to terminate his alimony obligation. We

disagree. To explain our reasoning, it is useful to review each of

the circumstances allowing termination that are set out in uncodified

§ 4 (a).

(i) Termination "under such judgments". The first clause of

uncodified § 4 (a) provides that alimony judgments entered before

"(4) Payors who were married to the alimony recipient [twenty]
years or less, but more than [fifteen] years, may file a modification
action on or after September 1, 2015.

"SECTION 6. Notwithstanding clauses (1) to (4) of [§] 5 of this
act, any payor who has reached full retirement age, as defined in
[G. L. c. 208, § 48,] or who will reach full retirement age on or
before March 1, 2015 may file a complaint for modification on or after
March 1, 2013."
 13

March 1, 2012, may terminate "only under such judgments." We

interpret this to mean that alimony judgments entered into before

the effective date of the alimony reform act may be terminated only

in accordance with provisions governing termination that are

contained within the existing judgment, either by a judge following

a trial or by the parties through a negotiated agreement incorporated

in the judgment. Orders for payment of alimony in judgments issued

based on evidence in a contested divorce generally will be subject

to modification on a showing of a material change in circumstances.10

See Schuler v. Schuler, 382 Mass. 366, 368 (1981); G. L. c. 208, § 37.11

10
The change in circumstances standard by which alimony may be
modified was established through decisional law. See, e.g., Schuler
v. Schuler, 382 Mass. 366, 368 (1981), citing Robbins v. Robbins,
343 Mass. 247, 249 (1961), and Hinds v. Hinds, 329 Mass. 190, 191-192
(1952); O'Brien v. O'Brien, 325 Mass. 573, 576 (1950); Whitney v.
Whitney 325 Mass. 28, 31-32 (1949). Under that standard, "[w]hile
alimony is modifiable on the showing of a material change in
circumstances, . . . property settlements are not." Heins v. Ledis,
422 Mass. 477, 483 (1996).
11
The first paragraph of G. L. c. 208, § 37, provides:

"After a judgment for alimony or an annual allowance . . .
for the spouse . . . , the court may, from time to time, upon
the action for modification of either party, revise and alter
its judgment relative to the amount of such alimony or annual
allowance and the payment thereof, and may make any judgment
relative thereto which it might have made in the original
action."

This paragraph has been in effect, employing substantially the same
language, since at least 1860. See Graves v. Graves, 108 Mass. 314,
317-318 (1871) (court may "from time to time, on the petition of
either party, revise and alter any decree respecting the amount of
 14

When parties to a divorce negotiate an agreement for alimony that

is "incorporated and merged into [such a] judgment" upon approval

by a judge and in accordance with G. L. c. 208, § 1A or 1B, the

judgment also is subject to modification based on a material change

in circumstances.12 Even where provisions regarding alimony in a

separation agreement are merged and do not survive the divorce

judgment, "it is nevertheless appropriate for a judge to take heed

of the parties' own attempts to negotiate terms mutually acceptable

to them" when determining whether to modify or terminate alimony.

Pierce v. Pierce, 455 Mass. 286, 302 (2009), quoting Bercume v.

Bercume, 428 Mass. 635, 644 (1999).

Thus, an order for alimony in a divorce judgment that entered

prior to March 1, 2012, includes, as part of its terms, the standards

for modification existing at the time the judgment entered, unless

the parties explicitly agreed otherwise, or the alimony reform act

itself unequivocally provides a specific exception that a provision

governing modification is to have retroactive effect. See Hay v.

Cloutier, 389 Mass. 248, 253 (1983), quoting Hanscom v. Malden &

such alimony or . . . the payment thereof, . . . and may make any
decree respecting the same which it might have made in the original
suit"); Gen. Stats. c. 107, § 47 (1860).
12
To modify an agreement that survives the judgment, "something
more than a 'material change of circumstances' must be shown."
Stansel v. Stansel, 385 Mass. 510, 515 (1982).
 15

Melrose Gas Light Co., 220 Mass. 1, 3 (1914).13

(ii) Termination "under a subsequent modification". The

second clause of uncodified § 4 (a) provides that alimony judgments

that entered prior to March 1, 2012, may be terminated "only . . .

under a subsequent modification." We interpret "words in a

statute . . . in light of the other words surrounding them."

Commonwealth v. Magnus M., 461 Mass. 459, 462 (2012), quoting

Commonwealth v. Brooks, 366 Mass. 423, 428 (1974). The placement

of the phrase "under such judgments," immediately preceding the

phrase "under a subsequent modification," indicates that the

Legislature intended the latter to refer to the former, and that the

language of the alimony reform act must be read to state that alimony

judgments entered prior to March 1, 2012, may terminate only under

a "subsequent modification" of such judgments. In other words, such

alimony judgments, as well as subsequent modifications of such

judgments, may be modified only under the terms and standards of

modification existing at the time the judgment entered.

The mere filing of a complaint after March 1, 2012, seeking

modification of an alimony judgment that entered prior to that date,

based on the retirement or cohabitation provisions, cannot be what

13
The issue of alimony was not before the court in Hay v.
Cloutier, 389 Mass. 248, 253 & n.7 (1983). In that case, we addressed
the retroactive effect of new factors to be considered in connection
with aspects of G. L. c. 208, § 34, concerning the division of marital
property.
 16

the Legislature intended by "subsequent modification." Such a

reading not only would disregard the context in which the phrase

appears in uncodified § 4 (a), but also would not take into account

the remaining provisions of uncodified §§ 4, 5, and 6. By

emphasizing the limitations on prospective application of the

alimony reform act in three separate provisions in the uncodified

sections of the act, the Legislature could not have expressed its

intent more clearly: only a claim for modification based on

durational limits may, but will not always, apply retroactively to

existing alimony judgments.

This point is made evident by considering uncodified § 4 (a)

in combination with uncodified § 4 (b). That section states that

G. L. c. 208, §§ 48 to 55, which include the retirement and

cohabitation provisions, "shall not be deemed a material change of

circumstance that warrants modification of the amount of existing

alimony judgments; provided, however, that existing alimony

judgments that exceed the durational limits under [G. L. c. 208, § 49

(f),] shall be deemed a material change of circumstance that warrant

modification." The Legislature's intent as expressed in § 4 (b) is

unambiguous. Alimony judgments entered prior to the alimony reform

act may be modified only under the existing material change of

circumstances standard, with the single exception that the new
 17

durational limits of the act14 will be considered a material change

of circumstances for purposes of this standard. It follows,

therefore, that the provisions of G. L. c. 208, § 49 (d) and (f),

do not warrant relief in the absence of a material change of

circumstances.

(iii) Termination "as otherwise provided for in this act."

Chin focuses particularly on the third clause of uncodified § 4 (a),

which states that G. L. c. 208, ' 49, "shall apply prospectively,"

except "as otherwise provided for in this act." He argues that the

new provisions for termination of alimony in the cohabitation

retirement provision fall within the meaning of the phrase "as

otherwise provided for in this act."

We do not agree that uncodified § 4 (a) was intended to

incorporate, as an exception to the alimony reform act's general rule

of prospective application, all of the provisions in G. L. c. 208,

§ 49. Such a reading renders meaningless the specific exclusions

from prospective application set forth in uncodified § 4 (b), and

is inconsistent with principles of statutory construction under

which we "give effect to all words of a statute, assuming none to

be superfluous." Commonwealth v. Semegen, 72 Mass. App. Ct. 478,

14
Chin does not dispute that the cohabitation and retirement
provisions, set out in G. L. c. 208, § 49(d) and (f), respectively,
are not durational limits, which are defined in G. L. c. 208, § 49
(b).
 18

480 (2008). Chin argues in essence that the provision should be read

as follows: General Laws c. 208, § 49, "shall apply prospectively,

such that alimony judgments entered before March 1, 2012 shall

terminate . . . as otherwise provided in [§ 49]." This view requires

that we read into the provision language that the Legislature did

not include. We will not "read into the statute a provision which

the Legislature did not see fit to put there." Commissioner of

Correction v. Superior Court Dep't of the Trial Court for the County

of Worcester, 446 Mass. 123, 126 (2006).

Moreover, the reading Chin proposes is inconsistent with the

over-all scheme of the alimony reform act. Where possible, we seek

to harmonize the provisions of a statute with related provisions that

are part of the same statutory scheme "so as to give full effect to

the expressed intent of the Legislature." Commonwealth v. Hampe,

419 Mass. 514, 518 (1995). As stated, G. L. c. 208, § 37, governs

alimony judgments entered prior to the act's effective date, under

the material change in circumstances standard then in effect.

c. Material change in circumstances. In this case, the judge

found that no other circumstances warranted a finding that there were

changed circumstances that would require an adjustment to the amount

of alimony Chin had been ordered to pay. See Bush v. Bush, 402 Mass.

406, 412 n.9 (1988), quoting Gottsegen v. Gottsegen, 397 Mass. 617,

625 (1986) (rejecting claim that alimony should be modified "solely
 19

on the basis of a finding of cohabitation"). See also Pierce v.

Pierce, 455 Mass. 286, 302 (2009) (rejecting claim that retirement

triggers termination of alimony obligation without showing of

material change in circumstances, because "no such provision was

included within the separation agreement"). A judge has

considerable discretion in fashioning an appropriate modification

judgment, and we will not disturb her judgment in the absence of an

abuse of discretion. See Pierce v. Pierce, supra at 293; Heistand

v. Heistand, 384 Mass. 20, 26-27 (1981). Nothing in the record

suggests that there was an abuse of discretion here.

Judgment affirmed.