April 5, 2016
Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on November 18, 2008.
motion for relief from judgment and a complaint in equity,
both filed on August 7, 2015, were heard by John D. Casey, J.
to prosecute an interlocutory appeal was allowed in the
Appeals Court by Blake, J.
Michael P. Angelini for the husband.
M. Epstein ( Richard M. Novitch with her) for the wife.
H. Lee & Holly A. Hinte, for Lee & Rivers, LLP, amicus
curiae, submitted a brief.
Meade, Hanlon, & Blake, JJ.
N.E.3d 670] Blake, J.
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.
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, 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.
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."  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.
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