GWEN KOTLER vs. HOWARD E. SPAULDING.

BROWN, J. The father appeals from a judgment of a Probate Court (entered April 1, 1986) on a complaint for contempt

Page 516

brought by the mother. The judge held that the father's failure to pay for the college education of his son once the son had attained twenty-one years of age violated a judgment of divorce nisi which incorporated a separation agreement and a modification of that agreement. [Note 1]

The parties were granted a divorce on the ground of irretrievable breakdown of the marriage under G. L. c. 208, Section 1A. The judgment nisi, entered on October 14, 1980, provided that the separation agreement entered into by the parties be incorporated and merged into the judgment and "by agreement of the parties may also remain as an independent contract."

At the time of divorce, there were three minor children of the marriage. The separation agreement in its original form provided for alimony and child support and for contribution to the children's college educations. [Note 2] On June 7, 1983, the parties entered into an agreement for modification of the contract. Under the "Modified Agreement", the father's responsibility for the continuing support of his children included the revised provision regarding his obligation for college educations. Note 1, supra. The modified agreement was incorporated in the judgment on June 14, 1983. [Note 3]

I. Contract Interpretation.

The father contends that the judge's construction of the modified college education provision was erroneous. He argues that the intent of the parties was that his contribution to the college education of his children would cease when they had reached the age of twenty-one.

Where the language of a written contract is plain and unambiguous it must be construed in accordance with its ordinary

Page 517

and usual sense. Fried v. Fried, 5 Mass. App. Ct. 660, 662-663 (1977). Justice, common sense and the probable intent of the parties guide the court's construction of the agreement. Fried at 664. See Pavluvcik v. Sullivan, 22 Mass. App. Ct. 581, 584 (1986).

We think, reading paragraph 8 of the modified agreement in the context of other provisions in the instrument, that the intent of the parties was that the obligation to pay for the respective college educations would not terminate as each child attained the age of twenty-one. The college provision expressly and unambiguously provides for the equal contribution on the part of both parents for the "college education" of their children. No age limit is mentioned; there is no basis for implying a limit of twenty-one years. Common sense dictates that the obligation for payments would not stop at age twenty-one since many students who attend four-year colleges are at least twenty-two years of age upon completion. [Note 4]

The absence of an express time limitation in the college education provision also contrasts with the modified support provision which establishes limitations relative to the ages of the children. [Note 5] Nothing in the contract suggests that the parties similarly intended that limitation to apply to the college education obligation provided in a separate paragraph of the contract.

II. Jurisdiction.

The father argues that the court did not have jurisdiction to enforce the order requiring him to pay for college education

Page 518

past the age of twenty-one because of the limits imposed by G. L. c. 208, Section 28. [Note 6] We are of opinion that there is a significant difference between a provision for education rendered by a judge pursuant to Section 28 following litigation, and a judgment or order which incorporates and requires compliance with the provisions of a bargained-for agreement. See Cappello v. Cappello, 23 Mass. App. Ct. 941 (1986). Cf. Gottsegen v. Gottsegen, 397 Mass. 617, 624-625 & n.8 (1986). Compare Feinberg v. Diamant, 378 Mass. 131, 135 (1979). Under Section 28, when the judge is acting on his or her own initiative to make an order for maintenance, support, or education, the judge is limited by the strictures of that section. But where the parties have, through mutual agreement, made provision for their children past age twenty-one, and desire that the agreement (after approval by the judge), be incorporated in the judgment, we think the incorporated agreement may be enforced by means of a contempt proceeding.

The language of G. L. c. 208, Section 1A (statutory language, as always, serving as the principal source of insight into the legislative purpose, Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 [1984]), lends some support to the trial judge's ruling that under Section 1A the court may incorporate in a judgment agreements of the parties making provision for children of greater duration that would be allowed under G. L. c. 208, Section 28. A separation agreement drafted by the parties is required by Section 1A, as amended through St. 1979, c. 362, Sections 1 & 2. Under that provision the court does not accept blindly the terms of the agreement but reviews the contract to determine whether fair and reasonable provisions have been made "for custody, for support and maintenance, for alimony, and for the disposition of marital property." See Lavin v. Lavin, post 929, 930 (1987). In making its findings, the court is required by Section 1A to "apply the provisions of section thirty-four [of G. L. c. 208]." We

Page 519

find it of consequence that Section 1A makes no reference to Section 28 in general or to the age limitation in particular. If the Legislature had intended that the limitations expressed in Section 28 apply to a Section 1A agreement, it could have stated so expressly. See Stansel v. Stansel, 385 Mass. 510, 512 (1982). See also Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liability Policies & Bonds, 382 Mass. 580, 586 (1981) (limitations of principle of implied repeal); Murray v. Board of Appeals of Barnstable, 22 Mass. App. Ct. 473, 479 (1986).

Finally, we think that enforcement of the parent's greater support obligation by a contempt proceeding does not conflict with the policy that parents cannot by agreement deny the Probate Court its statutory powers under G. L. c. 208, Section 28, concerning support for children, Ryan v. Ryan, 371 Mass. 430, 432 (1976), and cannot bargain away the rights of their children to support from either one of them. [Note 7] See Knox v. Remick, 371 Mass. 433, 437 (1976); Randall v. Randall, 17 Mass. App. Ct. 24 (1983). See also DeCristofaro v. DeCristofaro, ante 231, 236 & n.7 (1987).

In light of the foregoing discussion, we perceive nothing in cases such as Feinberg v. Diamant, 378 Mass. at 135, or

Page 520

Gottsegen v. Gottsegen, 397 Mass. at 624-625, which would require a different result.

Judgment affirmed.