COLYNE GERMAIN v. KELLY A. GOODNEY GERMAIN & Others.

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

25-P-413

COLYNE GERMAIN

vs.

KELLY A. GOODNEY GERMAIN1 & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Colyne Germain, appeals from a judgment

dismissing, with prejudice, her second amended complaint in

equity filed in the Probate and Family Court. We affirm.

Background. Colyne3 and Patrick Germain were divorced on

February 27, 2001. At that time, Patrick was a city of

Worcester (city) firefighter. Pursuant to the terms of an

agreement which was incorporated into a judgment of divorce

nisi, Patrick was to "assign to [Colyne] a 35% interest in his

1As is our custom, we take the names of the parties as they
appear in the complaint.

2 City of Worcester and Worcester Retirement Board.

3Because some of the parties share a surname, we use their
first names to avoid confusion.
retirement plan." To effectuate this provision, a domestic

relations order (DRO), signed by Colyne and Patrick, was

approved by a Probate and Family Court judge. As relevant here,

the DRO provided that "[t]he Alternate Payee recognizes that her

claims to a death benefit under [G. L. c. 32, § 12 (2) (d)] may

be defeated by those of a subsequent spouse of the Participant."4

In addition, Patrick was to "maintain his existing life

insurance policy through his City Retirement Plan naming

[Colyne] as beneficiary."

Patrick married Kelly A. Goodney Germain5 on September 10,

2006. Patrick, while still an employee of the city, died on

February 9, 2013. Following his death, Kelly applied for and

was granted accidental death benefits and member-survivor

benefits by the Public Employee Retirement Administration

Commission (PERAC) as Patrick's surviving spouse. Kelly also

received $205,000 from Patrick's life insurance policy through

the city.

Colyne filed a second amended equity complaint against

Kelly, the Worcester Retirement Board (board), and the city

alleging unjust enrichment and seeking declaratory relief. On

4 The DRO defines Colyne as the alternate payee and Patrick
as the participant.

5 Kelly died on November 15, 2025; her estate did not
participate in this appeal.

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cross motions for summary judgment, the judge allowed the

board's motion concluding that Colyne was not deprived of her

statutory rights to Patrick's pension because the DRO included

the possibility that her claim could be "defeated" by a

subsequent spouse. The judge denied the motions concerning the

life insurance proceeds concluding there was a factual dispute

whether this obligation terminated upon the emancipation of

Colyne and Patrick's children or was a marital asset.6

Following a trial on the issue of the disposition of the

life insurance proceeds, the judge concluded that the parties'

agreement was ambiguous and took extrinsic evidence to resolve

the question. He concluded that the life insurance obligation

was tied to Patrick's child support obligation, it terminated

when the support obligation ended, and was not a marital asset

subject to division. The judge entered a judgment of dismissal

with prejudice, and this appeal followed.

Discussion. The pension. "We review a grant of summary

judgment de novo." See Miller v. Cotter, 448 Mass. 671, 676

(2007). The question "is whether, viewing the evidence in the

light most favorable to the nonmoving party, all material facts

have been established and the moving party is entitled to a

6 The judge also dismissed all counts with prejudice as to
the city.

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judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56 (c), as

amended, 436 Mass. 1404 (2002). Here, there are no material

facts in dispute. Pursuant to their judgment of divorce, Colyne

was awarded a thirty-five percent interest in Patrick's

retirement benefit. However, the DRO provided that any

preretirement death benefit to which Colyne had a claim could be

defeated by Patrick's subsequent spouse. That is precisely what

happened here. Patrick married Kelly in 2006, and died in 2013

while still employed by the city. Kelly exercised her spousal

election right under G. L. c. 32, § 12 (2) (d) and applied for

the accidental death benefit under G. L. c. 32, §§ 9 and 94.7

"[A] DRO may only award benefits consistent with, and

limited to, those authorized by statute." Tompkins v. Tompkins,

65 Mass. App. Ct. 487, 494 (2006). Colyne contends that she "is

entitled to thirty-five (35%) percent of Patrick's pension."

The flaw in her argument is that Patrick never received a

pension, as he died prior to retiring. As his surviving spouse,

Kelly elected to receive the member-survivor allowance, and the

7 As Patrick's designated beneficiary, Colyne received one
hundred percent (not thirty-five percent) of Patrick's annuity
savings balance.

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board was required to pay her as such.8 See G. L. c. 32,

§ 12 (2) (d).

Because the DRO was silent as to accidental death benefits,

Colyne is not entitled to them. See G. L. c. 32, § 9 (2) (a).

Notwithstanding, the passing mention of this issue in Colyne's

brief does not rise to adequate appellate argument and therefore

we need not consider it. See Mass. R. A. P. 16 (a) (9), as

appearing in 481 Mass. 1628 (2019).9

Life insurance. Colyne next contends that under the terms

of the agreement, Patrick's life insurance proceeds were a

marital asset subject to division.10 At trial, she argued that

the agreement contained no language regarding termination of

Patrick's life insurance obligation, and therefore it was part

of the asset division. Kelly countered that reading the

agreement as a whole, the life insurance obligation was tied to

Patrick's child support obligation. Based in part on these

conflicting interpretations, the judge found that the language

8 Similarly, Colyne's claim against the board fails as she
was entitled to thirty-five percent of Patrick's retirement if
he received a return of his accumulated total deductions or if
he retired. Neither of these events occurred.

9 Because we conclude that summary judgment was properly
granted, we need not reach Colyne's unjust enrichment claim.

10The agreement provided that Patrick was to "maintain his
existing life insurance policy through his City Retirement Plan
naming [Colyne] as beneficiary."

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regarding Patrick's life insurance obligation was ambiguous.

This determination is a question of law. See Browning-Ferris

Indus., Inc. v. Casella Waste Mgt. of Mass., Inc., 79 Mass. App.

Ct. 300, 307 (2011) (judge must first determine whether contract

language is reasonably susceptible to more than one

interpretation). On this record, we agree with the judge that

there was genuine uncertainty in the language itself, and not a

mere disagreement between the parties. See id.

Having found the life insurance obligation set forth in the

agreement to be ambiguous, the judge properly considered parol

evidence to clarify the ambiguity. See Winchester Gables, Inc.

v. Host Marriott Corp., 70 Mass. App. Ct. 585, 591-593 (2007).

Reviewing the agreement in its totality, the judge found that

the contested life insurance language was "intended to be tied

to [Patrick]'s child support obligation," and not, as Colyne

claimed, as a division of marital assets. He based this

finding on the following: the contested language was contained

within that portion of the agreement titled "Support of Minor

Children" and not in the separate sections concerning the

disposition of marital assets and it required Patrick to

maintain the policy and did not say that Colyne was entitled to

the policy or its proceeds. Indeed, the judge found that if

Colyne's position prevailed, it "would result in an extremely

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disproportionate division of marital assets." From this the

judge concluded that "[t]his weighs against [Colyne's] argument

that the life insurance was part of the division of marital

property." Importantly, Colyne did not testify nor was there

evidence that the life insurance obligation was not intended to

be tied to Patrick's support obligation. All of these findings

have ample support in the record, and as such, are not clearly

erroneous. See Adoption of Daniel, 58 Mass. App. Ct. 195, 200

(2003).

To the extent that Colyne's argument is a challenge to the

credibility determinations made by the judge, we do "not

substitute our judgment for that of the trier of fact." G.B. v.

C.A., 94 Mass. App. Ct. 389, 393 (2018). Finally, we note that

a "judge has the authority to order a party in a divorce to

secure a life insurance policy for the benefit of a child."

Warnajtys v. Warnajtys, 97 Mass. App. Ct. 690, 693 (2020). See

Robbins v. Robbins, 16 Mass. App. Ct. 576, 579 (1983). This is

consistent with the judge's finding that Patrick's life

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insurance obligation was tied to his child support obligation

and was intended to terminate when the latter obligation ended.11

Judgment affirmed.

By the Court (Blake, C.J.,
Shin & Wood, JJ.12),

Clerk

Entered: May 8, 2026.

11 The defendants' request for attorney's fees is denied.

12 The panelists are listed in order of seniority.

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