Thomas K. Lanieri v. Lucy M. Lanieri.

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-85

THOMAS K. LANIERI

vs.

LUCY M. LANIERI.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Thomas K. Lanieri (husband), sought

equitable relief from the parties' divorce judgment, arguing

that the separation agreement violated Federal law because it

provided that his monthly payments in the nature of property

division to the defendant, Lucy M. Lanieri (wife), were computed

in part based on the amounts of the parties' Social Security

benefits. A judge of the Probate and Family Court allowed the

wife's motion to dismiss, concluding that the separation

agreement, which was incorporated into the judgment and survived

as an independent contract, properly considered the amounts of

anticipated Social Security benefits as one factor in equitably

distributing the marital estate. We affirm.

Background. After forty years of marriage, the parties

divorced. On February 5, 2018, they executed the separation
agreement, in which each waived alimony and agreed to the

division of marital assets. As to Social Security benefits and

the husband's pension, the separation agreement included the

following language (pension clause):

"[The husband] intends to begin collection of Social
Security benefits on or before April 1, 2019. [The wife]
will start collecting spousal Social Security benefits in
April, 2019.

"From April, 2019 to [the] death of either party, based on
the total amount of the parties' Social Security benefits
and [the husband]'s pension, [the husband] will pay [the
wife] each month an amount sufficient to ensure that the
parties' Social Security and [p]ension balance is equal.
The parties expressly acknowledge that any funds paid by
[the husband] to [the wife] shall not constitute alimony.

"[The husband] will receive the monthly Convergys pension
check of $730.00. Beginning February 1, 2018 and
continuing until April 1, 2019, [the husband] agrees to
send one-half ($365) to [the wife] monthly. Thereafter,
[the husband] agrees to send an amount to [the wife]
sufficient to equalize Social Security plus pension as per
above paragraph terms."

Each party acknowledged that, before signing the separation

agreement, he or she had the opportunity to consult with

counsel, read and understood the agreement, and believed that it

was "fair and reasonable"; each acknowledged having "sign[ed]

this agreement freely and voluntarily, intending to be bound by

its terms."

On March 8, 2018, a judge (divorce judge) approved the

separation agreement, finding that it was fair and reasonable,

and a judgment of divorce nisi entered. The separation

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agreement, including the waiver of alimony and the pension

clause, did not merge with the divorce judgment but survived as

an independent contract.

In December 2018, a second judge found the husband in

contempt for refusing to make payments to the wife as required

by the pension clause. On April 30, 2019, the husband filed a

complaint for modification of the judgment, alleging that the

wife had made misrepresentations on which the pension clause was

based and seeking to modify the judgment by eliminating the

pension clause. The second judge dismissed that complaint. The

wife filed a subsequent contempt action, alleging that the

husband again had failed to pay her amounts he owed under the

pension clause; by the time of the hearing, the husband was in

compliance with the required payment, but the second judge

ordered him to pay $500 toward the wife's attorney's fees and

further ordered that "[a]n award of 100% of counsel fees and

[wife]'s out of pocket costs shall presumptively be issued upon

any future finding of contempt on this issue."

In October 2019, the husband moved for equitable relief

from the divorce judgment pursuant to Mass. R. Dom. Rel. P. 60

(b), quoting all six subparts of that rule and arguing that the

pension clause violated 42 U.S.C. §§ 407 & 659 and the divorce

mediator had fraudulently induced the husband to agree to the

pension clause. The divorce judge denied the motion and ordered

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the husband to pay $1,000 toward the wife's attorney's fees. In

June 2020, the husband yet again was found in civil contempt for

failing to make payments to the wife as required by the pension

clause and ordered to pay the wife's attorney's fees.

On June 1, 2021, the husband filed the complaint at issue

here, seeking equitable relief pursuant to Mass. R. Dom. Rel. P.

60 (b) (4), arguing that the divorce judgment was void because

42 U.S.C. §§ 407 & 659 prohibited the Probate and Family Court

from dividing the parties' Social Security benefits as part of

the marital estate, and thus the court lacked subject matter

jurisdiction. The wife filed motions to dismiss and for

attorney's fees. The husband moved for summary judgment, and a

hearing on that motion was scheduled for October 20, 2021.

On September 22, 2021, a fourth judge (motion judge) held a

hearing on the wife's motion to dismiss. After hearing

argument, the motion judge told the wife's counsel that it was

not necessary to file an opposition to the husband's summary

judgment motion. In a written decision, the motion judge

allowed the motion to dismiss, concluding that the pension

clause was not void because the parties' separation agreement

properly could base the equitable distribution of marital assets

in part on their anticipated Social Security benefits. The

motion judge further concluded that the husband's complaint was

duplicative of his prior unsuccessful attempts to invalidate the

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pension clause in his April 2019 complaint for modification and

his October 2019 motion for relief from judgment, and the

husband had raised no additional grounds or reasons justifying

relief, and thus the present complaint was untimely. The motion

judge subsequently denied the husband's motion for summary

judgment. The motion judge also awarded the wife attorney's

fees in the amount of $3,675. The husband now appeals.

Discussion. Standard of review. We review de novo the

motion judge's rulings of law, including her interpretation of

the parties' separation agreement. See Tompkins v. Tompkins, 65

Mass. App. Ct. 487, 494 (2006).

Wife's motion to dismiss. As mentioned above, the motion

judge concluded that the husband's complaint for equitable

relief pursuant to Mass. R. Dom. Rel. P. 60 (b) (4) seeking a

determination that the pension clause was void was duplicative

of his October 2019 complaint for equitable relief, which the

divorce judge denied and from which the husband did not appeal.

Noting that the husband "has failed to raise additional grounds

or reasons for justifying relief under Rule 60 (b)," the motion

judge concluded that the husband's complaint was not timely.

See Sahin v. Sahin, 435 Mass. 396, 401 (2001) ("To the extent

that the claims raised by a party's independent action appear to

fall within the provisions of rule 60 [b] that mandate a

specific time limitation, but materialized too late to file in a

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motion to the court which rendered the judgment, the party must

raise some additional ground or reason justifying relief after

the expiration of the time limitation"). Cf. Rezendes v.

Rezendes, 46 Mass. App. Ct. 438, 440 (1999) (determination of

what constitutes reasonable time to file rule 60 [b] [6] motion

to void divorce judgment in judge's discretion). We need not

determine that issue, because we conclude that the husband was

not entitled to rule 60 (b) (4) relief.

The husband contends that the pension clause in the

parties' separation agreement "constitutes an impermissible

direct assignment" of Social Security benefits. We are not

persuaded.

Under Federal law, Social Security benefits "are not

subject to division as part of the marital estate." King v.

Cerbone, 101 Mass. App. Ct. 783, 785 n.3 (2022). See 42 U.S.C.

§ 407(a) ("The right of any person to any future [Social

Security] payment . . . shall not be transferable or

assignable"). However, a judge tasked with dividing marital

assets "may take the amount of the anticipated Social Security

benefit into account." King, supra, citing Mahoney v. Mahoney,

425 Mass. 441, 446-447 (1997). The judge may consider the

anticipated amount of Social Security benefits "as one factor,

among others, in making an equitable distribution of the

distributable marital assets." Mahoney, supra at 446.

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Where, as here, the division of marital assets was

accomplished by agreement of the parties, consideration of the

amount of anticipated Social Security benefits is no less

appropriate. Once a judge has found that the parties' agreement

is "free of fraud and coercion, and fair and reasonable in the

circumstances," Calhoun v. Rawlins, 93 Mass. App. Ct. 458, 467

(2018), then that agreement is valid, id. at 466 & n.14. See

also Coppinger v. Coppinger, 57 Mass. App. Ct. 709, 712 (2003)

(when agreement is incorporated into divorce judgment but

survives as independent contract, something more than material

change of circumstances must be shown for judge to refuse

specific performance). Cf. Cavanagh v. Cavanagh, 490 Mass. 398,

403 n.3 (2022) ("A judge may not approve and incorporate into a

divorce judgment a separation agreement or provisions contained

therein where the agreement as a whole or the relevant

provisions are not fair and reasonable or are not free from

fraud and coercion" [quotations and citation omitted]). Thus

the pension clause of the parties' agreement is binding unless

the divorce judge was "plainly wrong," Mahoney, 425 Mass. at

447, in finding it fair and reasonable.

The husband does not contend that the divorce judge

committed clear error in finding the parties' agreement fair and

reasonable. Instead, the husband contends that the pension

clause constituted an "assignment" of Social Security benefits,

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and thus violated Federal law. Relying on cases from other

states, the husband argues that the pension clause amounted to

an assignment, and not an offset, of Social Security benefits.

The argument is unavailing. As the husband acknowledges in his

brief, "when [the parties] begin to receive those benefits, the

[husband] is obligated to equalize the parties' income from the

[husband's] Convergys pension and [S]ocial [S]ecurity benefits,"

using whatever assets he sees fit. Thus, this case is

controlled by Mahoney, 425 Mass. at 446, where the judge

"considered the husband's anticipated Social Security old age

benefits, and awarded the wife a larger percentage of the

marital estate 'to equalize the standard of living both parties

will enjoy in the present and future.'"

In those circumstances, the motion judge "acted correctly"

when she allowed the wife's motion to dismiss the husband's

complaint for equitable relief and declined to void the pension

clause of the divorce judgment. Mahoney, 425 Mass. at 446.

Husband's motion for summary judgment. The husband argues

that because the wife failed to file an opposition to his motion

for summary judgment disputing the facts he alleged, those facts

should have been deemed admitted and summary judgment should

have entered in his favor. We disagree. The motion judge

instructed the wife's attorney that she did not need to file an

opposition to the husband's motion for summary judgment.

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Moreover, the wife did dispute the husband's claims in her

motion to dismiss, which included her assertion that the

separation agreement "does not explicitly transfer or assign any

[S]ocial [S]ecurity benefits."

Motion judge's award of attorney's fees to wife. The

husband also argues that "attorney's fees should not have been

awarded" by the motion judge to the wife in the amount of

$3,675. However, the husband has not included in the record

appendix copies of the wife's motion for attorney's fees, on

which that award was based. As appellant, it was his

responsibility to do so. Mass. R. A. P. 16 (e), as appearing in

481 Mass. 1628 (2019); Mass. R. A. P. 18 (a) (1) (A) (v) (c), as

appearing in 481 Mass. 1637 (2019); Zatsky v. Zatsky, 36 Mass.

App. Ct. 7, 10 n.3 (1994). We discern no abuse of discretion in

the motion judge's decision to award attorney's fees to the

wife, and have no basis on the incomplete record before us to

determine that there was any such abuse of discretion.

Appellate attorney's fees. The judgment is affirmed. The

wife's request for attorney's fees and costs associated with

this appeal is allowed. The wife may file an application for

appellate attorney's fees and costs within fourteen days of the

date of the rescript of this decision, and the husband shall

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have fourteen days thereafter in which to file a response. See

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

So ordered.

By the Court (Blake, Grant &
Smyth, JJ.1),

Clerk

Entered: May 5, 2023.

1 The panelists are listed in order of seniority.

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