Massachusetts Slip Opinions - Massachusetts Appellate Cases - Marital and Separation Agreements

Paixao v. Paixao The wife filed a complaint for divorce under c. 208, § 1B, and the parties appeared for trial on August 5, 1997. The parties were able to reach an oral separation agreement. The main points of the separation agreement were read into the record, and the judge conducted a standard colloquy with the parties. The judge asked the lawyers to submit a signed written agreement the next day; however, the wife refused to sign the agreement. On September 8, 1997, the wife had new counsel, who informed the judge that the wife thought the oral agreement was only a proposal. The parties had more negotiations, and once again came to an agreement. On September 30, 1997, the wife’s lawyer filed a motion to set a trial date because the wife would not sign the agreement. The wife’s lawyer argued that at the August 5, 2007 hearing, the wife did not enter the agreement freely and voluntarily, she was confused and under extreme pressure. On October 20, 1997, the judge heard the wife’s motion, which was denied. The husband’s lawyer submitted a proposed judgment that incorporated the terms agreed to on August 5 and September 8. The judge granted a divorce judgment that incorporated the husband’s proposed agreement. The wife appealed. The doctrine of judicial estoppel applies in domestic relations cases but not in this case. Judicial estoppel means “a party who has successfully maintained a certain position at a trial cannot in a subsequent trial between the same parties be permitted to assume a position relative to the same subject that is directly contrary to that taken at the first trial.” Judicial estoppel does not apply here because the judgment of divorce incorporated the husband’s proposed agreement, which incorporated the parties’ negotiations. However, the judge conducted a colloquy with the parties only on August 5, and not at any subsequent court hearing. There was no further colloquy that acknowledged the wife’s assent to the agreement that became the divorce judgment. Moreover, the judgment was based on the husband’s proposed judgment, and not an agreement of the parties. The divorce judgment was vacated, and the matter was remanded for trial.

Tompkins v. Tompkins Complaint for divorce filed in the Plymouth Division of the Probate and Family Court Department on August 23, 1999. The judgment dated June 3, 2004, is vacated. A new judgment shall enter stating that the domestic relations order dated May 17, 2000, shall remain in effect.

 

 

 

 

 

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