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S.S. v. V.S. (2021)

Appeals Court of Massachusetts.

S.S. v. V.S.


Decided: April 13, 2021

By the Court (Wolohojian, Desmond & Grant, JJ.1),


The defendant (wife) appeals from an order vacating a qualified domestic relations order (QDRO), which the plaintiff (husband) moved to vacate on the basis of mistake. We affirm.

Background. The parties entered into a separation agreement (agreement), the terms of which merged into the judgment of divorce nisi with the exception of the provisions related to property division, which survived as an independent contract. The agreement provided that the wife would receive thirty percent of the husband's Commonwealth of Massachusetts disability pension, beginning on or about January 1, 2030, when she would reach the age of sixty-six and one-half. The agreement required the parties to effectuate the pension division via a QDRO, with the husband paying drafting costs, within ninety days. In the alternative, if the parties were “unable to complete the QDRO as stated herein,” the husband “shall in the alternative pay the [w]ife 30% of the disability benefit he receives upon her reaching the age 66 1/2, as property division, on the first day of each month.”

The parties did not complete a QDRO until approximately three years later, on January 21, 2018. Contrary to the terms of the agreement, the QDRO assigned the wife 47.19 percent of the husband's gross monthly retirement benefits, with payment to commence “as soon as administratively feasible.” Simultaneously, the parties executed an amendment agreement which, on the one hand, stated that the parties “agree that a [QDRO] is to be executed in accordance with the parties[’] [s]eparation [a]greement,” and, on the other hand, stated that “[t]he parties agree to amend the terms of the QDRO as stated in the [s]eparation [a]greement [and to] accept the QDRO as drafted by Mr. Glenn Berger in compliance with state standards and deemed acceptable by the State Board of Retirement.” The parties filed the QDRO with the court on February 23, 2018, and it was approved on March 16, 2018.

The State Board of Retirement thereafter notified the husband that it would begin paying the wife 47.19 percent of his benefit on December 31, 2018. This prompted the husband to file the motion to vacate that is the subject of this appeal. Husband's counsel took full responsibility for not noticing that the QDRO both increased the wife's percentage entitlement to the pension, and significantly accelerated when the payments would begin. The husband's counsel took responsibility for the mistake, explaining that an associate had mistakenly thought that the document would convince the Board of Retirement to follow the terms of the original separation agreement.2 The husband's counsel represented, as an officer of the court, that the wife's counsel had drafted the terms of the amendment, which the wife's counsel did not deny. Indeed, although the wife's counsel had initially argued that the amendment was the product of negotiation, after the husband's counsel indicated otherwise, the wife's counsel changed tack and argued instead that the husband's counsel was responsible for supervising her associates. The judge allowed the husband's motion, finding that the QDRO was the product of mistake, but ordered the husband's counsel to pay the wife's attorney's fees.

Discussion. “[A] judge's action taken pursuant to a rule 60 motion will not be reversed on appeal in the absence of an abuse of discretion.” Rezendes v. Rezendes, 46 Mass. App. Ct. 438, 441 (1999). See Dalessio v. Dalessio, 409 Mass. 821, 833 (1991). Thus, the question presented is whether the judge abused her discretion in allowing the motion to vacate on the ground of mistake. Given (as we explain further below) the terms of the amendment agreement, the fact that modification of the judgment was not properly sought, the language of the separation agreement, the husband's counsel's acknowledgment of the mistake, and the wife's counsel's wavering explanations, the judge did not abuse her discretion in vacating the order on the basis of mistake.

We first address the wife's argument that the judge erred in concluding that the amendment agreement did not validly modify the separation agreement. The judge found that the amendment agreement pertained solely to the language of the QDRO and did not amend the separation agreement. “Our review of the motion judge's interpretation of the parties’ agreement is de novo.” Tompkins v. Tompkins, 65 Mass. App. Ct. 487, 494 (2006).

To begin with, the wife's argument that the amendment agreement was an agreed-upon modification of the judgment approving the settlement agreement is undercut by the fact that none of the requirements of Rule 412 of the Supplemental Rules of the Probate Court (2013) were met. Rule 412 lays out a “uniform procedure” “to facilitate uncontested actions to modify a judgment or order.” The rule requires the parties to file a joint petition to modify the judgment, a notarized agreement setting forth the modification, complete and accurate financial statements of any financial issue being modified, and a proposed judgment. None of these requirements were satisfied. Thus, as filed, the amendment agreement would not have alerted the judge that the parties intended to modify the terms of the judgment that had approved the terms of the settlement agreement, including the QDRO. From this, the judge could permissibly infer that modification was not intended by both parties.

Such a conclusion is consistent with the language of the amendment agreement, which nowhere mentions “modification.” As noted above, the amendment agreement unambiguously states that a QDRO “is to be executed in accordance with the parties[’] [s]eparation [a]greement.” The sentence that follows does not directly undercut this. That sentence merely states that the parties have agreed to amend the QDRO “as stated in the [s]eparation [a]greement.” It does not state, as the wife urges us to accept, that the parties had agreed to amend the terms of the separation agreement. Moreover, it bears mention that the separation agreement made no provision for amending the QDRO, or any of its other terms. Although we acknowledge that the use of the word “amend” and “amendment” are less than clear, they do not compel the conclusion that the parties had agreed to modify the terms of the settlement agreement previously approved by the court. We thus agree with the judge's view that the amendment agreement failed to modify the terms of the separation agreement. See Beninati v. Borghi, 90 Mass. App. Ct. 556, 563 (2016) (quotations and citations omitted) (we “construe the agreements based on a fair construction of the contract as a whole and not by special emphasis upon any one part”).

Despite some similarities to this case, Tompkins v. Tompkins, 65 Mass. App. Ct. 487 (2006), does not control. The Tompkins plaintiff filed his claim outside the one-year window, whereas the husband here brought his claim within nine months of the court entering the QDRO. “[A] viable claim for relief from the judgment based on mistake ․ [may be] raised by a motion for postjudgment relied pursuant to Mass. R. Dom. Rel. P. 60 (b) (1)” within a year. Id. at 493. Moreover, the QDRO in Tompkins was not, “on its face, inconsistent with the provisions of the parties’ separation agreement.” Id. at 496. Rather, the QDRO supplied “specificity where required, as well as additional provisions omitted from the earlier agreement but necessary to a complete understanding of the parties’ intentions.” Id. Here, by contrast, the QDRO altered both the percentage of the disability pension the wife would receive and how soon she would receive it. For these reasons, Tompkins does not persuade us that the judge misinterpreted the amendment agreement, nor does it foreclose a finding of mistake.

The husband's request for appellate attorney's fees is denied. The Probate Court's order vacating the QDRO is affirmed.

So ordered.

Order vacating QDRO affirmed.


2.   We express no opinion as to the reasonableness of this mistake. The trial judge noted that there was nothing in the QDRO that reflected the associate's understanding. Nevertheless, it was within the judge's province to credit counsel's explanation.

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S.S. v. V.S. (2021)

Docket No: 19-P-1644

Decided: April 13, 2021

Court: Appeals Court of Massachusetts.

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