judge must first determine whether contract language is reasonably susceptible to more than one interpretation
How later courts described this case
- judge must first determine whether contract language is reasonably susceptible to more than one interpretation
Written by the judges who cited it.
The opinion
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.
2
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.
3
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.
4
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."
5
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
6
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
7
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.
8