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11/10/77 BARBARA A. BOZYCZKO FEAKES v. JOHN S.

November 10, 1977

BARBARA A. BOZYCZKO FEAKES
v.
JOHN S. BOZYCZKO



Berkshire. Petition filed in the Probate Court for the county of Berkshire on June 28, 1974. The case was heard by Nuciforo, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Divorce, Separation agreement, Support of child. Contract, Separation agreement. Minor. Words, "Majority."

The opinion of the court was delivered by: Liacos

In an action seeking a declaration that the term "majority" in a separation agreement and divorce decree required the former husband to continue payments for the support of each child until each reached the age of twenty-one, a probate Judge erred in finding that the husband was "legally excused" as a result of the intervening enactment of St. 1973, c. 925, § 1, from making payments for the support of a child who had reached the age of eighteen. [636-638]

This case involves the application of St. 1973, c. 925, § 1 -- which decreased the age of majority in Massachusetts from twenty-one to eighteen years -- to the duty of a former husband to provide child support under a separation agreement and divorce decree in effect prior to the effective date of the statute. The former wife (plaintiff) filed a petition in the Probate Court for Berkshire County for a declaratory judgment that the term "majority" in the separation agreement and divorce decree required the former husband (defendant), to continue payments for the support of each of their three children until each child reached the age of twenty-one. The probate Judge held that the former husband was "legally excused" from making payments to the plaintiff for the support of their eldest child after the child's eighteenth birthday. The plaintiff appealed from this judgment. *fn1 Having transferred the appeal here on our own motion, we now vacate the judgment of the Probate Court.

A decree nisi was entered on June 8, 1971, granting the plaintiff's libel for divorce and directing the defendant to make weekly payments of $20 to the plaintiff for the support of each of their three children "until each said child reaches majority, is self supporting, is married, or shall die, whichever occurs sooner." On the day before the decree nisi was entered, the parties executed a separation agreement which among other things provided for child support payments. The agreement was incorporated in the decree nisi by reference. The plaintiff's declaratory judgment action called on the probate Judge to determine the meaning of the term "majority" as used in the separation agreement and as incorporated in the divorce decree. For our present purposes, we need focus only on the separation agreement. *fn2

As in other circumstances where a contract term employed by the parties leaves their obligations in doubt, the court, in construing a separation agreement, will place itself in the position occupied by the parties. To accomplish this, the court will examine the subject matter of the agreement and the language employed, and will attempt to ascertain the objective sought to be accomplished by the parties. Cf. deFreitas v. Cote, 342 Mass. 474, 477 (1961); McQuade v. Springfield Safe Deposit & Trust Co., 333 Mass. 229, 233 (1955); Malaguti v. Rosen, 262 Mass. 555, 560 (1928). See generally Hills v. Shearer, 355 Mass. 405, 408 (1969); Freeman v. Sieve, 323 Mass. 652, 656 (1949).

The dispute here centers on a provision in the agreement which fixes the juncture at which the defendant's obligation to make child support payments to the plaintiff will terminate. In June, 1971, when the agreement was executed, twenty-one was the established age at which parental authority and the common law duty of support ceased. Oliveria v. Oliveria, 305 Mass. 297, 299 (1940). Effective on January 1, 1974, the age of majority was decreased to eighteen by the enactment of St. 1973, c. 925, § 1, adding cls. Forty-eighth through Fifty-first to G. L. c. 4, § 7. As a general rule, the law existing at the time an agreement is made necessarily enters into and becomes part of the agreement. Wood v. Lovett, 313 U.S. 362, 370 (1941). Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 429-430 (1934). Von Hoffman v. Quincy, 71 U.S. (4 Wall.) 535, 550 (1866). Maryland-Nat'l Capital Park & Planning Comm'n v. Lynn, 514 F.2d 829, 833 (D.C. Cir. 1975). N.C. Freed Co. v. Governors of the Fed. Reserve Sys., 473 F.2d 1210, 1215 (2d Cir.), cert. denied, 414 U.S. 827 (1973). Denice v. Spotswood I. Quinby, Inc., 248 Md. 428, 433-434 (1967). DePaul v. Kauffman, 441 Pa. 386, 398 (1971). Paul v. Paul, 214 Va. 651, 653 (1974). See 4 S. Williston, Contracts § 615 (3d ed. 1961). In contrast, laws enacted after the execution of an agreement are not commonly considered to become part of the agreement unless its provisions clearly establish that the parties intended to incorporate subsequent enactments into their agreement. Swenson v. File, 3 Cal. 3d 389, 393 (1970). Kinney v. Kinney, 48 App. Div. 2d 1002, 1003 (N.Y. 1975). The problem of determining the meaning of the term "majority," as used by the parties in this case, therefore turns on the expectations and intentions of the parties, at the time of agreement, with regard to the future effect of that term.

Unfortunately, the very meager record before us fails to disclose whether the Judge reached any Conclusion as to the intent of the parties. Nor does the record show that any evidence was offered bearing on the intent of the parties. *fn3 There is no indication that the parties to this formal separation agreement used a term with a definite and long established meaning to describe a crucial element of the former husband's obligations with the intention that this term be subject to future legislative redefinition. The record includes a so called "Memorandum of Case" which contains two findings by the Judge. The first is that the child in question had reached the age of eighteen. The second is that "the Separation Agreement mandated child support until 'majority' age based on these facts." The Judge appears to have based his decision entirely on the belief that St. 1973, c. 925, § 1, required the redefinition of the term "majority" as used in the prior support agreement or divorce decree. That such was the view of the probate Judge is further indicated by the judgment which holds that the defendant father is "legally excused" from making further payments as to a child attaining the age of eighteen years. Decisions of this court subsequent to the probate Judge's decision make clear, however, that such a ruling is not mandated by the enactment of St. 1973, c. 925, § 1.

In Orlandella v. Orlandella, 370 Mass. 225, 226 (1976), we held that a support decree entered prior to January 1, 1974, is not automatically modified by the legislative redefinition of the age of majority. *fn4 Similarly, in a case substantially like this one, we observed that the statutory alteration in the age of majority does not compel a transformation of the terms of a support decree where the decree incorporates by reference a separation agreement between the parties. Manes v. Manes, 370 Mass. 235 (1976). In both cases we recognized that a probate Judge had the discretion to modify a decree issued prior to the effective date of St. 1973, c. 925, § 1; the legislative change in the age of majority might be a factor, but not a determinative one, in that decision. *fn5 It is even more clear that the statute could not have been intended to alter the terms of independent contracts such as the separation agreement at issue here.

The docket in this case discloses that on December 12, 1974, the plaintiff filed a request for a report of material facts within the time limit imposed by G. L. c. 215, § 11, as then in effect. *fn6 There is no indication that the Judge satisfied his statutory obligation to respond to this request. Even assuming that the Judge intended his findings of fact to include all those facts considered material to his decision, see Sodones v. Sodones, 366 Mass. 121, 126 (1974), we cannot discern any meaning from the cryptic assertion that the defendant's duty under the separation agreement extended to "'majority' age based on these facts." Since the Judge erroneously placed reliance on a supposed retroactive effect of the statute reducing the age of majority to eighteen, the judgment cannot stand. Judgment is to be vacated. A new judgment is to be entered declaring the rights of the parties in a manner consistent with this opinion.

So ...


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