MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Peter F. Kline (husband) appeals from a contempt judgment finding him guilty of civil contempt for failing to pay alimony to Jane K.D. Kline (wife), and subsumed within that judgment, an order denying his motion to dismiss the contempt complaint. At the core of this appeal is the alimony provisions set forth in the parties separation agreement, which were incorporated and merged into the judgment of divorce nisi. We conclude that the judge properly denied the motion to dismiss, but erred in finding that the alimony provision was clear and unambiguous, and therefore we vacate the contempt judgment and remand for further proceedings consistent with this memorandum and order.
Background. The parties were married for more than thirty-two years. On December 13, 2012, a judgment of divorce nisi entered, which incorporated the parties separation agreement. Among other things, the judgment required the husband to pay $649 per week in alimony to the wife, plus a percentage of certain bonus or incentive payments received as part of the husbands employment. The agreement provided that “[n]either [the wife] nor [the husband] shall make any other claim for alimony against the other, whether such alimony claim be for the past, present or future.” The parties further agreed that in the event of a change in the law that altered the tax consequences intended by the parties, the alimony payments “shall be equitably adjusted retroactively and prospectively so as to achieve insofar as possible the result intended.” Notably, neither the judgment nor the agreement contained a provision for the duration or termination of alimony.
On January 21, 2021, the wife filed a complaint for contempt, alleging, inter alia, that the husband unilaterally ceased paying alimony to her. In response, the husband filed a motion to dismiss the complaint pursuant to Mass. R. Dom. Rel. P. 12 (b) (6). Relying on G. L. c. 208, § 49 (f),
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the husband claimed that his alimony obligation terminated by operation of law because he had attained full Social Security retirement age on July 13, 2015.
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Therefore, he claimed court authorization was not required. The wife opposed the motion, and asserted that the parties intentionally omitted an alimony termination date because, among other things, she was disabled. The judge denied the motion, reasoning that “the Separation Agreement contains no limiting or terminating language. Accordingly, the obligation remains in full force and effect until modified.” The judge found the husband guilty of civil contempt, established alimony arrears at $49,973, and ordered the husband to pay attorneys fees to the wife. This appeal followed.
Discussion. The Act Reforming Alimony, St. 2011, c. 124 (act), with an effective date of March 1, 2012, made several changes to the law governing alimony. As relevant here, it established presumptive termination dates for alimony based on the length of the marriage.
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See Holmes v. Holmes, 467 Mass. 653, 656-657 (2014); G. L. c. 208, § 49 (b). The act also mandated that a general term alimony award (as was the case here) terminate upon the remarriage of the recipient spouse or the death of either party. See G. L. c. 209, § 49 (a). The husband contends that he was not in contempt, and his motion to dismiss was improperly denied because the plain language of the act permitted him to cease paying alimony, without the need for court authorization.
1. Motion to dismiss. We review a ruling on a motion to dismiss de novo, “accepting as true all well-pleaded facts alleged in the complaint, drawing all reasonable inferences therefrom in the plaintiffs favor.” Lanier v. President & Fellows of Harvard College, 490 Mass. 37, 43 (2022). To survive a motion to dismiss, the plaintiff must present factual allegations that rise above the level of speculation and plausibly suggest an entitlement to relief. See Murrow v. Esh Circus Arts, LLC, 93 Mass. App. Ct. 233, 234 (2018), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).
Here, the four corners of the complaint set forth the operative judgment, the allegations of nonpayment, the amount of arrears, and the requested relief. This was sufficient for the wife to overcome the “low bar required to withstand a motion to dismiss.” Matter of the Colecchia Family Irrevocable Trust, 100 Mass. App. Ct. 504, 525 (2021). See Mass. R. Dom. Rel. P. 8 (a). The motion was properly denied.
2. Complaint for contempt. We turn next to the contempt judgment, which we review for an abuse of discretion. See Commercial Wharf E. Condominium Assn v. Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 (2018). The separation agreement is a contract. Whether a contract is ambiguous is a question of law that we review de novo. See Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 823 (2015).
The parties offered competing arguments as to whether the husband was permitted to unilaterally cease making alimony payments. The wife contends that the absence of durational or termination language in the alimony provisions set forth in their agreement was intentional, and therefore he was required to file a complaint for modification.
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The husband does not dispute that the agreement omits provisions for the duration or termination of alimony.
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Rather, he claims that his alimony obligation terminated by operation of law, and therefore he was not required to seek a modification.
The agreement is silent regarding the termination of the husbands alimony obligation. However, the act is unequivocal - - when a payor attains full Social Security retirement age, his alimony obligation terminates by operation of law. See G. L. c. 208, § 49 (f). See McManus v. McManus, 87 Mass. App. Ct. 864, 868-869 (2015) (agreement contained omission regarding either partys right to file modification for future alimony; therefore, plaintiff should have opportunity to present parol evidence to enable judge to determine intent of parties concerning future alimony). Here, reading the agreement in its entirety does not resolve the question of whether the husband was required to seek a modification. An ambiguity exists because the question of if and when the husbands alimony obligation terminated is subject to more than one reasonable interpretation. Accordingly, there was not a “clear and unequivocal command,” such that the husband could be held in contempt. Rosen v. Rosen, 90 Mass. App. Ct. 677, 691-692 (2016), quoting Birchall, petitioner, 454 Mass. 837, 853 (2009). It therefore follows that the husbands disobedience is doubtful. See Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dept of Mental Retardation (No. 1), 424 Mass. 430, 442-443 (1997). See also Sax v. Sax, 53 Mass. App. Ct. 765, 772 (2002) (“Ambiguities are regularly resolved in favor of the alleged contemnor”). On remand, the judge should take parol evidence to determine the parties intent with regard to the termination of the husbands alimony obligation.
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Conclusion. We vacate the judgment of contempt and remand the matter for further proceedings consistent with this memorandum and order.
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So ordered.
FOOTNOTES
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. General laws c. 208, § 49 (f) provides that:“Once issued, general term alimony orders shall terminate upon the payor attaining the full retirement age. The payors ability to work beyond the full retirement age shall not be a reason to extend alimony, provided that:“(1) When the court enters an initial alimony judgment, the court may set a different alimony termination date for good cause shown; provided, however, that in granting deviation, the court shall enter written findings of the reasons for deviation.“(2) The court may grant a recipient an extension of an existing alimony order for good cause shown; provided, however, that in granting an extension, the court shall enter written findings of:“(i) a material change of circumstance that occurred after entry of the alimony judgment; and“(ii) reasons for the extension that are supported by clear and convincing evidence.”
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. Notwithstanding attaining full Social Security retirement age in July 2015, the husband continued to pay alimony to the wife until January 10, 2020.
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. The prior alimony statute, G. L. c. 208, § 34, as appearing in St. 1974, c. 565, did not provide presumptive termination dates for alimony. Because the parties were married for more than twenty years, the order of alimony was for an indefinite length of time. See G. L. c. 209, § 49 (c).
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. Notably, the agreement does not contain language that the alimony payments would terminate on either parties death or the wifes remarriage. See G. L. c. 209, § 49 (a).
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. If the parties intended to deviate from the statute, better practice would have been for them to include explicit language in their agreement that their decision to omit alimony duration and termination provisions was intentional.
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. We express no opinion on the merits thereof.
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. The wifes request for attorneys fees and costs is denied.