Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DeMarco v. DeMarco

Appeals Court of Massachusetts, Suffolk

June 24, 2016

Katherine DeMarco
v.
Michael DeMarco

         Argued April 5, 2016

          Complaint for divorce filed in the Suffolk Division of the Probate and Family Court Department on November 18, 2008.

         A motion for relief from judgment and a complaint in equity, both filed on August 7, 2015, were heard by John D. Casey, J.

         Leave to prosecute an interlocutory appeal was allowed in the Appeals Court by Blake, J.

          Michael P. Angelini for the husband.

          Elaine M. Epstein ( Richard M. Novitch with her) for the wife.

          David H. Lee & Holly A. Hinte, for Lee & Rivers, LLP, amicus curiae, submitted a brief.

         Present: Meade, Hanlon, & Blake, JJ.

          OPINION

          [53 N.E.3d 670] Blake, J.

          The husband, Michael DeMarco, and the wife, Katherine DeMarco, reached a surviving settlement agreement while trial was underway on their pending complaints for modification of alimony under the Alimony Reform Act of 2011, G. L. c. 208, § § 34, 48-55 (act), and for contempt for nonpayment of alimony. The agreement provides for a lump sum payment to the [53 N.E.3d 671] wife in exchange for a termination of the husband's alimony obligation.

Page 619

After the judgments entered incorporating the settlement agreement, the Supreme Judicial Court released its decision in Chin v. Merriot, 470 Mass. 527, 23 N.E.3d 929 (2015), and in two related cases,[1] wherein the court concluded that the provision of the act relevant here is to apply prospectively. Thereafter, the wife filed a motion for relief from the judgments and a complaint in equity, asserting that she was entitled to relief from the provisions of the settlement agreement based on the recently released decisional law. The judge allowed the motion, and the husband sought, and obtained, leave to file an interlocutory appeal. We reverse.[2]

          Background.

          The parties were divorced in May, 2010. The alimony provision within their separation agreement (2010 agreement), which merged with the judgment of divorce, provided that the husband was to pay alimony to the wife until the death of either party, the wife's remarriage, or " [a]t such time as the Husband has no gross earned income, after turning age 68." In 2011, the Legislature enacted the act, see St. 2011, c. 124, which took effect on March 1, 2012. See St. 2011, c. 124, § 7. The retirement provision of the act, G. L. c. 208, § 49( f ), inserted by St. 2011, c. 124, § 3, provides that " general term alimony orders shall terminate upon the payor attaining the full retirement age." [3] In 2012, the husband ceased making full alimony payments, and on February 19, 2013, the wife filed a complaint for contempt for nonpayment of alimony. Nine days later, the husband filed an amended complaint for modification, seeking termination of his alimony obligation based on his attainment in December, 2012, of the full retirement age under the act.[4]

         The complaints were consolidated for trial on February 19, 2014. The attorneys' arguments, and their discussions with the judge at that point, indicate that the attorneys as well as the judge operated under the assumption that the retirement age provision of the act applied retroactively to alimony ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.