KENNETH R. LOISELLE v. LINDA TENNYSON-LOISELLE & Another.

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

22-P-462

KENNETH R. LOISELLE

vs.

LINDA TENNYSON-LOISELLE & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kenneth R. Loiselle (father), appeals from a

Probate and Family Court judgment declaring that he had a

continuing "obligation to maintain his daughter, Ardis C.

Tennyson-Loiselle [daughter], as beneficiary of 25% of his

adjusted gross estate" pursuant to the separation agreement and

subsequent stipulation entered into between the father and the

defendant Linda Tennyson-Loiselle (mother). The father contends

that the provisions requiring him to bequeath twenty-five

percent of his adjusted gross estate to his daughter were

intended to act as a guarantee securing his other financial

obligations pursuant to the agreement, and the judge erred in

failing to consider extrinsic evidence of the parties' intent to

1 Ardis C. Tennyson-Loiselle.
elucidate the unambiguous meaning of the contract.

Alternatively, the father argues that the separation agreement

is ambiguous such that the matter should be remanded for trial.

We affirm.2

Background. The mother and father married in February

1991, followed by the birth of their daughter in March 1992.3

The parties entered into a separation agreement on February 10,

1993, that was subsequently incorporated into a May 28, 1993,

divorce judgment. "Exhibit E" of the separation agreement

required the father to execute a will that on his death would

establish a trust for the benefit of the daughter, granting her

twenty-five percent of his "adjusted gross estate" as defined by

2 In his notice of appeal, the father also purports to appeal
from the judge's denial of his motion for relief from judgment.
The motion was filed pursuant to Mass. R. Dom. Rel. P. 60 (b)
without reference to a particular subsection. While the
"[f]ailure to classify the appropriate section of rule 60(b) in
a motion for relief of judgment is not fatal," Honer v.
Wisniewski, 48 Mass. App. Ct. 291, 294 (1999), the father has
not argued on appeal -- in his brief or at oral argument -- that
the judge abused her discretion in denying his motion for relief
from judgment. In any event, we discern no abuse of discretion
in the judge's decision to deny the motion for relief from
judgment where, as discussed infra, the relevant provisions of
the separation agreement were unambiguous, and the judge did not
err in declining to consider extrinsic evidence presented by the
father. See Bank v. Thermo Elemental, Inc., 451 Mass. 638, 649
(2008) ("extrinsic evidence may be used as an interpretive guide
only after the judge or the court determines that the contract
is ambiguous"); Dilanian v. Dilanian, 94 Mass. App. Ct. 505, 515
(2018) ("motion for relief under rule 60(b) is directed to the
sound discretion of the motion judge" [citation omitted]).
3 The daughter is the only child of the mother and father's

marriage.

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the agreement. The separation agreement also required, among

other things, the father to pay the mother $625 in weekly

alimony until the death of either party or until January 1,

2011.4 The agreement contained an integration provision, stating

that the parties "have incorporated in this Agreement their

entire understanding," and "[n]o oral statement or prior written

matter, extrinsic to this Agreement, shall have any force or

effect."

On November 3, 2011, the court entered a modification

judgment that incorporated a stipulation agreement of the

parties. The modification agreement provided, inter alia, that

the father was obligated to pay all of the daughter's

undergraduate and graduate education expenses until June 30,

2020; the father was obligated to pay the mother $685 weekly in

child support until the daughter was emancipated;5 the father's

New York City condominium was to be excluded from his adjusted

gross estate for purposes of Exhibit E; and the twenty-five

percent of the father's adjusted gross estate that he was

obligated to bequeath to the daughter would be calculated after

subtracting either two million dollars or an amount equal to one

4 Neither the separation agreement nor the judgment of divorce
included a separate child support obligation.
5 For purposes of both the separation and modification agreement,

the daughter was considered "emancipated" when she was no longer
entitled to support pursuant to G. L. c. 208, § 28.

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third of his adjusted gross estate, whichever is less. The

modification agreement further provided that notwithstanding its

incorporation into the modification judgment, it "shall survive

as a contract and have independent legal significance and be

forever binding on the parties, their heirs and assigns," except

for certain provisions relating to education expenses, child

support, and medical insurance.

In September 2021, the father filed a complaint for

declaratory judgment seeking a declaration that he no longer had

an obligation to pay alimony or child support, bequeath any of

his estate to a trust for the benefit of his daughter, or

include his daughter as a beneficiary in his will. Following a

hearing in December 2021, the judge denied the defendants'

motion to dismiss the complaint and allowed the father's motion

for judgment on the pleadings. In her decision, the judge

declared that while the father's obligation to pay child support

and alimony had terminated, his obligation to maintain his

daughter as a twenty-five percent beneficiary of his adjusted

gross estate remained in full force and effect based on the

"clear and unequivocal" terms of the separation agreement and

the modification agreement. The judge subsequently denied the

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father's motion for relief from judgment, and this appeal

followed.6

Discussion. The father argues that the language of the

separation agreement is unambiguous and "only makes sense if the

provisions regarding [his] estate are viewed as a guarantee of

his other obligations." He further contends that the judge

erred in failing to consider undisputed extrinsic evidence of

the parties' intent that Exhibit E serve to secure the father's

other obligations in lieu of life insurance as a security.7 In

the alternative, the father asserts that the separation

agreement is ambiguous because it does not explicitly state

whether Exhibit E serves to secure his other financial

obligations or is instead an independent obligation such that

the matter should be remanded for trial. The defendants counter

that the separation agreement unambiguously establishes the

father's independent obligation to bequeath twenty-five percent

6 We reject the defendants' assertion that the father's notice of
appeal was "arguably" untimely. The thirty-day appeal period
following the judge's January 27, 2022 order denying the
father's motion for relief from judgment expired on a weekend.
See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606
(2019). The father timely filed his notice of appeal on the
first business day thereafter, February 28, 2022. See Mass. R.
A. P. 14 (a), as appearing in 481 Mass. 1626 (2019).
7 The father references (1) statements in his affidavit attached

to his motion for relief from judgment, and (2) his opposition
to the defendants' motion to dismiss, for the proposition that
the parties contemplated that the father's obligations to the
mother and daughter would cease after his support obligation
terminated.

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of his adjusted gross estate to his daughter, which is

reaffirmed in the modification agreement. The defendants have

the better argument.

Whether contract language is ambiguous, and the

interpretation of an unambiguous contract, are questions of law

that we review do novo. See Bank v. Thermo Elemental, Inc., 451

Mass. 638, 648 (2008); Basis Tech. Corp. v. Amazon.com, Inc., 71

Mass. App. Ct. 29, 36 (2008). To determine whether a contract

is ambiguous, "the court must first examine the language of the

contract by itself, independent of extrinsic evidence concerning

the drafting history or the intention of the parties." Bank,

supra. "Contract language is ambiguous where the phraseology

can support a reasonable difference of opinion as to the meaning

of the words employed and obligations undertaken" (quotation and

citation omitted). Id. "[A]n ambiguity is not created simply

because a controversy exists between the parties, each favoring

an interpretation contrary to the other's." Suffolk Constr. Co.

v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999),

quoting Jefferson Ins. Co. v. Holyoke, 23 Mass. App. Ct. 472,

475 (1987). While "extrinsic evidence may be admitted when a

contract is ambiguous on its face or as applied to the subject

matter," "[t]he initial ambiguity must exist" and "extrinsic

evidence cannot be used to contradict or change the written

terms, but only to remove or to explain the existing uncertainty

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or ambiguity." General Convention of the New Jerusalem in the

U.S. of Am., Inc. v. MacKenzie, 449 Mass. 832, 836 (2007),

citing Robert Indus., Inc. v. Spence, 362 Mass. 751, 753-754

(1973).

Here, there is no contract language supporting the father's

interpretation of Exhibit E as a security for his other

obligations. Rather, the language supports the defendants'

interpretation that Exhibit E establishes an independent

obligation for the father to bequeath twenty-five percent of his

adjusted gross estate to the daughter. Paragraphs 2 (d) and (e)

of Exhibit E provide that "upon the [daughter] attaining the age

of thirty-five," the entire trust amount "shall be distributed

to the [daughter]," and if "the [daughter] dies before age

thirty-five" with surviving children, the amount "shall be paid

to the [daughter's] children then surviving." In contrast, the

father's obligation to pay alimony was set to expire on January

1, 2011, his obligation to pay the daughter's education expenses

was to terminate on June 30, 2020, and his obligations to pay

child support and provide medical insurance were to cease upon

the daughter's emancipation. Furthermore, while the

modification agreement altered the calculation for the

daughter's twenty-five percent share of the father's adjusted

gross estate, it reaffirmed the father's obligation pursuant to

Exhibit E and did not contain any language to suggest it was

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merely a security. Without contract language supporting the

father's interpretation of Exhibit E as a security for his other

obligations, we discern no ambiguity that would permit the

introduction of extrinsic evidence to determine the meaning of

the integrated separation agreement. See General Convention of

the New Jerusalem in the U.S. of Am., Inc., 449 Mass. at 836;

Eastern Holding Corp. v. Congress Fin. Corp., 74 Mass. App. Ct.

737, 741-742 (2009). Accordingly, the father's claim that the

judge erred in failing to consider extrinsic evidence to

"elucidate the meaning of the unambiguous contract" is

unavailing. See Winchester Gables, Inc. v. Host Marriott Corp.,

70 Mass. App. Ct. 585, 591 (2007) (parol evidence rule "does not

bar extrinsic evidence that elucidates the meaning of an

ambiguous contract" [quotation and citation omitted] [emphasis

added]).

Where the unambiguous contract language establishes the

father's obligation to bequeath twenty-five percent of his

adjusted gross estate to the daughter through creation of a

trust, we affirm the judgment on the pleadings and the order

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denying the father's motion for relief from judgment.8,9

So ordered.

By the Court (Neyman, Desmond
& Smyth, JJ.10),

Clerk

Entered: June 1, 2023.

8 We decline the defendants' request for attorney's fees pursuant
to Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019).
9 To the extent that we have not specifically addressed

subsidiary arguments in the parties' briefs, they have been
considered, and do not warrant further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
10 The panelists are listed in order of seniority.

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