Jane K.D. Kline v. Peter F. Kline.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-159

JANE K.D. KLINE

vs.

PETER F. KLINE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant (husband) appeals from a judgment after

remand on the wife's civil contempt complaint, and from an order

denying the husband's motion to amend. On appeal, the husband

argues that the judge abused her discretion in (1) considering

parol evidence before finding the defendant violated the

parties' separation agreement by failing to pay weekly alimony,

and (2) ordering the husband to pay alimony arrears after the

original judgment of contempt had been vacated. We affirm.

Background. On December 13, 2012, the parties divorced by

judgment nisi, which incorporated their separation agreement

except for provisions relating to alimony and child support,

which merged with the judgment. Among other provisions, the
judgment required the husband to pay $649 per week in alimony to

the wife and thirty-five percent of any bonus or incentive

payment received as part of his employment compensation.

Neither the judgment nor the agreement specified the duration or

a date for termination of the alimony. In January 2021, the

wife filed a complaint for contempt, alleging the husband

unilaterally stopped paying alimony.1 A judge found the husband

guilty of civil contempt and ordered the husband to pay the wife

alimony arrears of $49,973 and $22,285.50 in attorney's fees.

In December 2022, a panel of this court vacated the contempt

judgment, concluding the agreement was ambiguous as to the

husband's alimony obligation and thus not supportive of a

contempt finding. The case was remanded to the judge to "take

parol evidence to determine the parties' intent with regard to

the termination of the husband's alimony obligation." In March

2023, the judge held an evidentiary hearing where both parties

testified and the only exhibit was a transcript of the parties'

colloquy prior to the entry of their divorce judgment.

1 In July 2015, the husband attained full retirement age.
He claims he ceased paying alimony to the wife because he
started to receive Social Security retirement benefits and
became aware of the Alimony Reform Act, which provides that
"general term alimony orders shall terminate upon the payor
attaining the full retirement age." G. L. c. 208, § 49 (f).

2
In December 2023, the judge issued findings and judgment

after remand.2 As to alimony, the judge found that at the time

the judgment of divorce entered, "it was the intent of both

parties that Husband pay alimony beyond the statutory retirement

age due to Wife's disability and his ongoing employment" and "to

omit any termination date."3 The judge ordered the husband to

pay the wife $49,973 in alimony arrears, to continue making

weekly alimony payments through the date of the court's

temporary order suspending his obligation,4 and to pay the wife's

attorney's fees in the amount of $20,997.63. The husband moved

to amend the findings "so as to state clearly the . . . theory

of the defendant's liability"; his motion was denied.

Discussion. We review a judge's interpretation of a

separation agreement de novo, see Colorio v. Marx, 72 Mass. App.

2 The judge made seventy-four findings of fact and ten
conclusions of law.

3 The divorce judgment colloquy transcript revealed that at
the hearing, husband's counsel stated the Husband's attainment
of retirement age "creates a presumption and our intention in
omitting any specific language with respect to termination -- is
that realistically Mr. Kline is likely to work beyond -- full
retirement age and would presumably continue to pay according to
the agreement if for no other reason than to avoid the -- the
hassle of modification."

4 In response to the husband's amended complaint for
modification, which he filed on May 26, 2022, the judge
suspended his alimony obligation in a temporary order on August
23, 2022.

3
Ct. 382, 386 (2008), and a judge's ultimate decision pertaining

to alimony for an abuse of discretion. See, e.g., Pierce v.

Pierce, 455 Mass. 286, 293 (2009); Smith v. Smith, 93 Mass. App.

Ct. 361, 363 (2018).

1. Parol evidence. The husband first argues that where

the divorce judgment was silent on the duration of the alimony,

the judge erred by treating the prior judgment as a contract and

taking parol evidence to determine the parties' intent.

Instead, he argues, the judge should have applied the Alimony

Reform Act, which provides that "general term alimony orders

shall terminate upon the payor attaining the full retirement

age." G. L. c. 208, § 49 (f).5 We disagree.

"[W]here the parties' separation agreement was merged into

the judgment of divorce, it retains no independent legal

significance apart from the judgment. However, . . . to the

extent that a judgment incorporates the terms of a separation

agreement, we may apply contract principles to the

interpretation of the judgment" (quotation and citation

omitted). Cavanaugh v. Cavanaugh, 490 Mass. 398, 413 (2022).

Among the contract principles that may be applied is the use of

parol evidence. Where the language of a separation agreement is

5 The Alimony Reform Act took effect on March 1, 2012, and
thus governs the parties' divorce judgment, which was entered on
December 13, 2012.

4
ambiguous, "we may consider extrinsic evidence of the parties'

and the court's intent." Id. at 413.

Here, the judge acted well within her discretion. The

alimony provisions of the parties' separation agreement were

incorporated and merged into the judgment of divorce nisi. A

prior panel of this court determined the judgment was ambiguous

on the question of alimony duration and termination and remanded

this matter to the judge with instructions to "take parol

evidence to determine the parties' intent." The judge proceeded

to follow these instructions precisely, holding an evidentiary

hearing and considering the parties' extrinsic evidence, which

consisted of only their testimony and the colloquy of their

divorce hearing.

2. Alimony Reform Act. The husband further contends that

the judge erred by not making specific written findings as

required by the Alimony Reform Act. We are not persuaded.

"A judge has broad discretion when awarding alimony under

the [Alimony Reform Act]." Zaleski v. Zaleski, 469 Mass. 230,

235 (2014). The act provides: "When the court enters an

initial alimony judgment, the court may set a different alimony

termination date for good cause shown; provided, however, that

in granting deviation, the court shall enter written findings of

the reasons for deviation." G. L. c. 208, § 49 (f) (1).

5
Here, during the divorce judgment colloquy (nine months

after the act had taken effect), the judge asked the parties,

"So there's no stated termination date of the alimony. Is that

correct?" The wife's attorney said "Correct, your Honor," while

the Husband's counsel responded,

"[The parties'] intention in omitting any specific language
with respect to termination . . . is that, realistically,
[the husband] is likely to work beyond . . . full
retirement age and would presumably continue to pay
according to the agreement if for no other reason than to
avoid the -- the hassle of modification."

In response, the judge accepted counsel's explanation, stating,

"Okay. All right. Okay." The judge's statements on the record

accepting counsel's explanation for the agreement's deviation

from § 49 (f) are tantamount to written findings as required by

the statute. Cf. Commonwealth v. King, 71 Mass. App. Ct. 737,

739 n.5 (2008) ("While written findings are preferable, . . .

oral recitation of reasons for revocation, when transcribed,

satisfies the requirement of a written statement by the fact

finder"). Even if the judge had failed to make the required

written findings, though, the husband agreed and acknowledged in

the divorce judgment colloquy that he has an obligation to pay

alimony even after attaining full retirement age.

3. Alimony award. The husband asserts that the judge

erred in ordering the husband to pay alimony arrears and

reimposing his alimony obligation under the divorce judgment.

6
Even absent a finding of contempt, "judges possess inherent

authority to clarify the rights and obligations of the parties

based upon the issues raised in a complaint for contempt and to

enter an order for payment of monies due pursuant to [their]

determination of the parties' rights under the separation

agreement" (citation and quotation omitted). Griffin v. Kay,

101 Mass. App. Ct. 241, 249 (2022).

Here, the divorce judgment colloquy demonstrated the

parties' intent that the husband pay alimony beyond his

statutory retirement age due to the wife's disability, and that

termination of the husband's alimony obligation required a

modification judgment. On this basis, the judge properly

determined the husband was obligated to pay the alimony he

unilaterally withheld from the wife, ordered the husband to pay

the wife alimony arrears of $49,973 and to continue to pay his

weekly alimony obligation through the date of the judge's

temporary order suspending his obligation, and to pay the wife

attorney's fees in the amount of $20,997.63.6 In assessing

alimony arrears to be paid by the husband, "[t]he judge's order

simply enforced the parties' separation agreement in order to

insure that the plaintiff received her agreed share of the

6 The husband does not challenge the attorney's fees award.

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marital estate" (citation omitted). Colorio, 72 Mass. App. Ct.

at 389.

It follows that (1) no further explanation of the theory of

the husband's liability was required, so the motion to amend was

property denied; and (2) the wife's request for appellate

attorney's fees must be allowed pursuant to paragraph twenty-

nine of the agreement. Within fourteen days of this decision,

the wife shall file a motion with supporting documentation; the

husband shall have fourteen days thereafter in which to file a

response. See Fabre v. Walton, 441 Mass. 9, 10-11 (2004).

Judgment affirmed.

Order denying motion to amend
affirmed.

By the Court (Englander,
Hodgens & Smyth, JJ.7),

Clerk

Entered: July 14, 2025.

7 The panelists are listed in order of seniority.

8