January 30, 2015
George J. Rodman
Argued October 6, 2014.
Complaint for divorce filed in the Norfolk Division of the Probate and Family Court Department on March 12, 2008.
Following the filing of a complaint for modification on November 14, 2013, a question of law was reported by Gregory V. Roach, J.
The Supreme Judicial Court granted an application for direct appellate review.
David E. Cherny ( Thomas D. Ritter with him) for the husband.
Michael P. Doherty for the wife.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[23 N.E.3d 923] Duffly, J.
The former husband, George J. Rodman, brought a complaint for modification in the Probate and Family Court, seeking to terminate certain obligations to his former wife, Roberta Rodman, arising under a separation agreement the parties had entered into in connection with their divorce. The divorce judgment nisi, which entered in April, 2008, incorporated and merged into that judgment the provision at issue here, obligating George to pay alimony to [23 N.E.3d 924] Roberta in the amount of $1,539 per week. During the pendency of the modification proceeding, George filed a motion seeking immediate termination of the alimony payments on the ground that he had reached " full retirement age" as defined by G. L. c. 208, § 48, which was enacted by St. 2011, c. 124 (alimony reform act or act). The motion asserted that the alimony reform act became effective March 1, 2012, and
that George therefore was entitled to termination of the alimony order pursuant to G. L. c. 208, § 49 ( f ) (retirement provision), which provides that " general alimony orders shall terminate upon the payor attaining the full retirement age."
A Probate and Family Court judge denied the motion and then reported the following question to the Appeals Court:
" Whether or not [G. L. c. 208, § 49 ( f ),] is to be applied retroactively to judgments entered before March 1, 2012."
We granted the plaintiff's application for direct appellate review.
The plaintiff presents an argument that differs somewhat from that in Chin v. Merriot, ante 527, 528-529 (2015), concerning whether, and in what circumstances, the retirement provision may be applied to modify an alimony judgment that was in existence when the alimony reform act became effective. He argues that, because his agreement merged with the judgment, it was, under applicable law, always subject to modification based on his having reached the age of retirement, and therefore that his complaint for modification does not derogate from the proscription against retroactive application set forth in the alimony reform act.
Our summary of the facts is drawn from the statement of uncontested facts set forth in the judge's reservation and report, supplemented by undisputed facts in the record. The parties were married on March 1, 1969, and have two adult children. At the time of the divorce in April, 2008, they had been married for thirty-nine years. The parties entered into a separation agreement that obligated George to pay Roberta alimony in the amount of $1,539 per week, and further provided that, " [t]he Husband's obligation to pay alimony to the Wife shall terminate upon the death of the Husband, the death of the Wife, or the remarriage of the Wife, whichever first occurs."  Except as to provisions relating to property division, the agreement was incorporated into and merged with a judgment of divorce nisi that entered on April 28, 2008, and became " absolute," or final, " ninety days from the entry thereof," on July 23, 2008. G. L. c. 208, § 21.
George filed a complaint for modification in November, 2013, seeking to terminate his obligations to (1) pay alimony to Ro-
berta, (2) reimburse her for the costs of health insurance payments, and (3) maintain life insurance for her benefit. The basis for the modification was George's claim that, because he had reached full retirement age, the retirement provision required termination of his obligation to pay alimony.
[23 N.E.3d 925] Discussion.
1. Statutory interpretation standard.
" [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, 982 N.E.2d 1173 (2013), quoting Harvard Crimson, Inc. v. President & Fellows of Harvard College, 445 Mass. 745, 749, 840 N.E.2d 518 (2006). Where a literal reading would " lead to an awkward and even intolerable result," we will eschew it " for a more liberal or more encompassing approach." Mailhot v. Travelers Ins. Co., 375 Mass. 342, 348, 377 N.E.2d 681 (1978).
2. Claim that application of the retirement provision to merged agreements is not retroactive.
George acknowledges that § § 4 through 6 of St. 2011, c. 124, the uncodified transitional provisions of the alimony reform act (uncodified sections), govern the extent to which the act operates to apply prospectively or retroactively to existing alimony judgments. George also agrees that express language in these provisions declares that the alimony reform act is, in the main, prospective. He claims, however, that modification of an alimony agreement that merges with a judgment that entered prior to March 1, 2012, as compared to one that survives the judgment, is not retrospective but prospective in effect; he contends that this applies as well to modification based on the retirement provision.
In support of this claim, George looks to uncodified § 4 ( c ), which provides that " [u]nder no circumstances shall [G. L. c. 208, § § 48-55,] 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." The second clause of uncodified § 4 ( c ), would not permit George to seek modification pursuant to the retirement provision if his alimony agreement had survived the judgment, except in very limited circumstances. See Chin v. Merriot 534-535 & nn.10-12. Focusing on this clause, George appears to argue that the Legislature must therefore have intended the retirement provision to apply to merged alimony agreements, which are always subject to modification on a showing of a material change in circumstances. [23 N.E.3d 926] See, e.g., Pierce v. Pierce, 455 Mass. 286, 293, 916 N.E.2d 330 (2009), quoting Schuler v. Schuler, 382 Mass. 366, 368, 416 N.E.2d 197 (1981); C.P. Kindregan, M. McBrien, & P.A. Kindregan, Family Law and Practice § 90.4, at 433-434 (4th ed. 2013) (" when the alimony agreement does not survive the divorce judgment the ordinary test of material change of circumstances controls in modification actions" ). Under this view, modification of pre-existing, merged
alimony agreements is not retroactive because parties to agreements that are always subject to modification will have anticipated potential modification based on retirement, and modification based solely on the retirement provision is thus prospective in effect.
We do not accept George's view of the meaning of uncodified § 4 ( c ), because it would require us to disregard the familiar principle of statutory construction under which we interpret a statute as a whole. Instead, we consider the statutory provision bearing in mind that " it is improper to confine interpretation to the single section to be construed." Johnson v. Kindred Healthcare, Inc., 466 Mass. 779, 784, 2 N.E.3d 849 (2014), quoting Commonwealth v. Keefner, 461 Mass. 507, 511, 961 N.E.2d 1083 (2012). We also consider the " surrounding text and structure" of these sections of the alimony reform act. Maracich v. Spears, 133 S.Ct. 2191, 2209, 186 L.Ed.2d 275 (2013).
The alimony reform act became effective on March 1, 2012. The uncodified sections of the alimony reform act are transitional provisions that do not contain the substantive law governing the duration and termination of alimony under the act. See Chin v. Merriot, supra at 532-533. The first sentence of the first paragraph of uncodified § 4 ( a ) states the Legislature's intent: " General Laws c. 208, § 49, 'shall apply prospectively, such that alimony judgments entered before March 1, 2012 shall terminate only under such judgments, [23 N.E.3d 927] under a subsequent modification or as otherwise provided for in this act.'" When considered against this backdrop of declared Legislative intent, it is apparent from the surrounding text and structure that the provisions that follow uncodified § 4 ( a ) state the exception to the Legislature's overarching declaration of prospective application. The subsequent sections proceed to place conditions on the exceptions, and
conclude by delineating transitional implementation dates for the filing of complaints seeking modification based on these exceptions.
The sole exception to what is in essence a bar to retroactive application of the substantive provisions of the alimony reform act is set forth in uncodified § 4 ( b ). That section provides that the durational limits of alimony awards under G. L. c. 208, § 49, are applicable to " existing alimony judgments that exceed the durational limits," and that payment of alimony for a period that extends beyond the statutory limits, " shall be deemed a material change of circumstance that warrant modification." See Chin v. Merriot, supra at 536. The next paragraph, uncodified § 4 ( c ), however, specifies when the exception to these durational limits does not apply. " Under no circumstances" will the exception be available to modify " 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." The succeeding provision, uncodified § 5, sets forth the dates after implementation of the alimony reform act on which a payor may file a complaint for modification based solely on a claim that an " existing alimony judgment exceeds the durational limits."  These dates are staggered, and based on the length of the marriage. For example, payors who had been married to the alimony recipient for five years or less were permitted to file a modification action on or after March 1, 2013, whereas payors who had been married ten years or less were
not permitted to do so until on or after March 1, 2014. Uncodified § 5 (1), (2).
Having considered the structure and textual refinements of the uncodified sections of the alimony reform act in the context of the Legislature's declared intent, we conclude that uncodified § 4 ( c ) provides no basis for the argument that the act precludes retroactive application only as to surviving alimony agreements. The provision creates a single general exception to prospective application for " existing alimony judgments that exceed the durational limits under" G. L. c. 208, § 49, but imposes a condition on the durational limits exception, limiting it to prospective application. The act states clearly that [23 N.E.3d 928] under " no circumstances" will the durational limits exception be available where there is " an existing alimony judgment in which the parties have agreed that their alimony judgment is not modifiable," or where the alimony agreement survives the judgment. See Lalchandani v. Roddy, 86 Mass.App.Ct. 819, 22 N.E.3d 166 (2015). The Legislature plainly intended that only a claim for modification based on durational limits may (but will not always) apply retroactively to existing alimony judgments. We therefore reject George's claim that the retirement provision may apply to modify an alimony agreement that merged
in a judgment that entered prior to March 1, 2012.
We answer the reported question: General Laws c. 208, § 49 ( f ), does not apply retroactively to alimony orders in divorce judgments that entered before March 1, 2012. The matter is remanded to the Probate and Family Court for further proceedings consistent with this opinion.