Korff v. Korff
Korff v. Korff
Opinion of the Court
Once it was determined that an antenuptial agreement was valid, it was improper for the Probate and Family Court judge to alter its alimony provisions.
Facts. The parties were married on March 29, 1992, two days after signing an antenuptial agreement (agreement) that provided, in part, that in case of divorce, alimony was to be determined annually, based upon the husband’s gross income multiplied by a percentage that was determined by the length of the marriage. If, for example, the marriage lasted from sixty-one through 120 months, the wife would be entitled to sixteen
On February 28, 2002, the husband filed, but did not serve, a complaint for divorce in the Probate and Family Court. The husband did not tell the wife that he had filed for divorce, and, in fact, the couple continued to live together as husband and wife until December 26 of that year, when the wife filed and served her own complaint for divorce.
The first issue thus litigated was the true date of the divorce filing: February 28, 2002, as the husband claimed (thus setting the marriage length at 119 months, entitling the wife to sixteen percent of the husband’s gross annual income) or December 26, 2002, as the wife claimed (which resulted in a marriage length of 129 months, entitling the wife to a twenty-one-percent share). The judge found that the controlling date was December 26, 2002, thus establishing the alimony provision at twenty-one percent.
Despite some mild protestations by the wife, the validity of the agreement was never really at issue, and the judge, after hearing some evidence on the subject, quickly turned to the question of alimony.
As explained above, the agreement provided that alimony was to be based upon a yearly percentage of the husband’s gross income.
Discussion. As the validity of the agreement is not an issue before us, we need not discuss it at length. Suffice it to say that in determining the validity of an antenuptial agreement, the judge must undertake a dual-pronged inquiry. First, he must establish whether the agreement was “ ‘fair and reasonable,’ at the time of execution.” DeMatteo v. DeMatteo, 436 Mass. 18, 30 (2002), quoting from Rosenberg v. Lipnick, 377 Mass. 666, 672 (1979). Next, taking a “second look,” the judge must inquire whether the agreement, at the time of the divorce, is “conscionable.” DeMatteo v. DeMatteo, supra at 34, 38. Under the conscionability standard, “a judge may not relieve the parties from the provisions of a valid [antenuptial] agreement unless, due to circumstances occurring during the course of the marriage, enforcement of the agreement would leave the contesting spouse ‘without sufficient property, maintenance, or appropriate employment to support herself.’ ” Id. at 37, quoting from 1 Clark, Jr., Domestic Relations in the United States § 1.9 (2d ed. 1987).
In the instant matter, the judge found the agreement to be valid and enforceable not only at the time of execution, but also at the time of the divorce. Neither party contests this holding, nor do we find it to be in error.
The agreement called for alimony to be adjusted on an annual basis, the wife receiving twenty-one percent of the husband’s gross income, as defined in the agreement. While the agreement does not provide a formal mechanism for the parties to agree upon the calculation of gross annual income
Conclusion. So much of the judgment of divorce as pertains to alimony is vacated. The matter is remanded for a determinatian, consistent with this opinion, of the appropriate alimony for the period in question.
So ordered.
The husband also claims that the award of attorney’s fees to the wife was error. We disagree and affirm that aspect of the judgment. See G. L. c. 208, §§ 17, 38; DeMatteo v. DeMatteo, 436 Mass. 18, 38-39 (2002).
The husband served the wife with his divorce complaint on June 19, 2003, two days after the wife served the husband with a motion to dismiss his divorce complaint.
The judge found that the “Husband did not present sufficient or credible evidence of any nature as to why he did not serve the Wife a Domestic Relations Summons, within 90 days of February 28, 2002, as required under Massachusetts law.” The husband also admitted that he filed the complaint in February, 2002, to “preserve the percentage of assets that would be awarded to the Wife under the Agreement.” The husband is not appealing this finding. Indeed, in his prayer for relief he asks us to “order Jay to pay to Jill a sum equal to 21% of Jay’s gross income.”
In spite of his appropriate observation that “the existence of a valid Ante-nuptial Agreement obviates the need for the Court to consider the statutory factors under G. L. c. 208, § 34,” the judge, nevertheless, undertook a detailed analysis of those factors for the purported purposes of “interpreting the parties!’] Agreement and determining an appropriate level of child support.” The factors of G. L. c. 208, § 34, are inapplicable considerations either in determining the validity of an antenuptial contract or in the interpretation of a
He earned, in 1998, $903,652.91; in 1999, $1,346,909.51; in 2000, $1,590,450.19; in 2001, $1,426,528.23; in 2002, $547,618.10; and in 2003, through October 31, $430,028.98.
Gross income was defined as “all income earned in a given year whether from declared or deferred compensation, excluding deferred compensation earned in a prior year but elected to be taken in the current year, minus any child support paid by [the husband].”
This finding was based on the husband’s failure to list residual income and other assets, including a one-quarter share of his mother’s house, which she deeded to her sons in 1998, leaving a life estate for herself. As for the drop in income the last two years, the judge found that the husband “intentionally, either voluntarily directly or indirectly reduced his income to reduce his exposure to the proper amount of alimony and child support.” There is scant direct evidence on this point. Indeed, the only evidence appears to be to the contrary, i.e., that he lost a major account and the stock market declined.
That figure excluded the husband’s production bonus, which the judge considered “deferred compensation” under the agreement. This was not raised as an issue on appeal.
Under the agreement, the alimony obligation would terminate upon (1) the husband’s death; (2) the wife’s death; (3) the wife’s remarriage; or (4) after a period of time equal to the length of the marriage — in this case, 129 months (10 years, 9 months).
The judge also ordered, in accordance with the agreement, arbitration on the division of assets, as well as child support. Neither issue is contested here.
Even considering the husband’s lowest year of income, $430,028.98 for part of 2003, the wife would have been entitled to at least $90,306.09, leaving her with sufficient support under the parameters of DeMatteo.
This is not a case of self-employment with a possibility of hiding assets. The husband here is employed by Morgan Stanley, and his income and benefits can be, it appears, readily ascertainable. The more troublesome area is when a husband has the ability to generate income but does not. See generally Schuler v. Schuler, 382 Mass. 366, 373-374 (1981); Bassette v. Bartolucci, 38 Mass. App. Ct. 732, 735-736 (1995); Flaherty v. Flaherty, 40 Mass. App. Ct. 289, 291 (1996). Whatever remedies that might be fashioned in such a case do not include the rewriting of a valid antenuptial agreement.
In light of our holding, we do not reach the husband’s claims of error as to the judge’s factual findings. Virtually all of the factual findings at issue relate to the improper modification of the agreement.
The husband was not allowed to call his supervisor as a witness, apparently due to late notice to the wife that he would be testifying. It appears that if the evidence were reopened, the supervisor would be able to shed light in the area of the husband’s earnings. See note 8, supra.
Reference
- Full Case Name
- Jay S. Korff v. Jill R. Korff (and a companion case)
- Cited By
- 2 cases
- Status
- Published