George v. George , 476 Mass. 65 ( 2016 )

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SJC-12059
CLIFFORD E. GEORGE vs. JACQUELYN A. GEORGE.
Suffolk. September 6, 2016. - November 23, 2016.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
Budd, JJ.
Divorce and Separation, Alimony, Modification of judgment.
Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on May 29, 2001.
A complaint for modification, filed on August 26, 2013, was
heard by Jeremy A. Stahlin, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Brian J. Kelly for Clifford E. George.
Matthew P. Barach (Alessandra Petrucelli with him) for
Jacquelyn A. George.
LOWY, J. Clifford E. George and Jacquelyn A. George
married in 1989 and divorced in 2002.1 Their separation
agreement, and the judgment that followed, provided that
1
Because they share a last name, we refer to the parties by
their first names.
2
Clifford would pay Jacquelyn monthly alimony. In 2013, Clifford
filed a complaint for modification of the divorce judgment that
sought, among other things, to modify his alimony obligation
based on G. L. c. 208, § 49 (b), part of the Alimony Reform Act,
St. 2011, c. 124 (act), which became effective on March 1, 2012,
nearly ten years after the parties' divorce. Section 49 (b)
provides that general term alimony for marriages lasting more
than ten years but fewer than fifteen years shall not continue
for "longer than [seventy] per cent of the number of months of
the marriage," G. L. c. 208, § 49 (b) (3), a process by which a
judge can deviate from the durational limit, where doing so is
"required in the interests of justice." G. L. c. 208, § 49 (b).
The act also provided a phase-in schedule for when complaints
for modification based on the new durational limits could be
brought for alimony obligations that predated the effective date
of the act. St. 2011, c. 124, §§ 4, 5.
In his memorandum of decision, the Probate and Family Court
judge denied Clifford's complaint for modification because he
found that deviation beyond the durational limits of the act was
warranted. Clifford appealed from this judgment to the Appeals
Court, and we transferred the case to this court on our own
motion.
We affirm the judge's denial of relief but on the ground
that Clifford's complaint was filed prematurely. However, we
3
utilize this opportunity to set forth guidance for how the
"interests of justice" standard of § 49 (b) should be applied
when determining whether deviating beyond the durational limits
of the act is warranted.
Background. Clifford and Jacquelyn married in
Massachusetts in June, 1989. The parties were divorced in
November, 2002. Their separation agreement merged into the
divorce judgment, except for the division of property
provisions. According to one of the merged portions, Clifford
was to pay Jacquelyn $1,800 per month in alimony, subject to
termination "upon the earliest to occur of [Clifford's] death,
[Jacquelyn's] death, [Jacquelyn's] remarriage or July 30, 2026."
The unmerged portion of the separation agreement and the divorce
judgment gave Jacquelyn the former marital home and required
Clifford to pay for her health insurance.
On August 26, 2013, Clifford filed a complaint for
modification, requesting that the divorce judgment be modified
in several ways: to allow Clifford to cease paying for
Jacquelyn's health insurance; to order Jacquelyn to refinance
and remove Clifford's name from the mortgage on the former
marital home; and to terminate alimony payments. Clifford
asserted that changed circumstances warranted such modification.
Specifically, he claimed that the cost of health insurance had
more than doubled since the time of divorce, his ability to
4
secure credit for his business had been harmed by Jacquelyn's
refusal to refinance the mortgage, and the durational limits of
the act called for the termination of alimony payments based on
the length of the parties' marriage.
Following a pretrial conference in May, 2014, the judge
issued temporary orders, ruling that there were no remaining
issues relating to the health insurance or mortgage, and
requested that the parties submit briefs and an agreed statement
of facts as to the alimony issue. After reviewing the materials
submitted by the parties, the judge issued a "modification
judgment" and memorandum of decision denying termination of
alimony payments.
The judge found, and the parties do not contest, that the
parties' marriage lasted 143.97 months (approximately twelve
years) and that based upon the act's durational limits,
Clifford's alimony payments presumptively should have ended
after 100.78 months, or on April 23, 2011.2 G. L. c. 208, § 49
(b) (3). The judge noted that for divorce judgments predating
the act arising from marriages that lasted as long as the
Georges', uncodified § 5 of the act requires complaints for
modification based solely on durational limits to be filed no
earlier than March 1, 2015, which was more than one year later
2
The judge measured the length of marriage from the date of
marriage to the date of service of the divorce papers.
5
than the date that Clifford's complaint for modification was
filed. St. 2011, c. 124, § 5 (3). Nonetheless, the judge went
on to evaluate whether deviation from the durational limits was
warranted, stating that he was obligated to do so. The judge
concluded that deviation was warranted because, he theorized,
Jacquelyn "bargained for" a specific alimony termination date in
exchange for a certain division of property and, had Jacquelyn
known that alimony would terminate before the date contained in
the agreement, she would "likely have insisted on different
property division terms." As mentioned, Clifford appealed from
the judge's decision to the Appeals Court, and we transferred
the case to this court on our own motion.3 In his brief,
Clifford makes clear that his appeal focuses only on the judge's
decision that deviation from the durational limits was
warranted, and on how such deviation issues should be analyzed.
Discussion. a. The Alimony Reform Act. The act became
effective on March 1, 2012, and deemed all alimony awards that
predated it to be general term alimony. St. 2011, c. 124,
§§ 4 (b), 7. Under the act, general term alimony may be
3
After the modification judgment was issued, Jacquelyn
filed a motion for attorney's fees and costs. A motion hearing
was held in December, 2014. In a memorandum of decision
following the hearing, as well as in a supplemental modification
judgment, the judge awarded her certain attorney's fees and
costs. Although Clifford appealed from some of the award, he
stated in his brief that he is no longer appealing any issue
involving attorney's fees. The issue is therefore waived.
Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
6
modified in amount and duration upon a material change of
circumstance. G. L. c. 208, § 49 (e). The act also provides
presumptive termination dates for general term alimony
obligations for marriages lasting fewer than twenty years.4
G. L. c. 208, § 49 (b). A judge may deviate beyond these
termination dates if the judge makes a written finding that
doing so is in the "interests of justice." G. L. c. 208,
§ 49 (b).
Uncodified § 4 (b) of the act states: "Existing alimony
awards which exceed the durational limits established in said
[§] 49 of said [G. L. c.] 208 shall be modified upon a complaint
for modification without additional material change of
4
The presumptive termination dates -- which are expressed
as percentages of the length of the marriage -- for payment of
general term alimony are set forth in G. L. c. 208,
§ 49 (b) (1)-(4):
"(1) If the length of the marriage is [five] years or less,
general term alimony shall continue for not longer than
one-half the number of months of the marriage.
"(2) If the length of the marriage is [ten] years or less,
but more than [five] years, general term alimony shall
continue for not longer than [sixty] per cent of the number
of months of the marriage.
"(3) If the length of the marriage is [fifteen] years or
less, but more than [ten] years, general term alimony shall
continue for not longer than [seventy] per cent of the
number of months of the marriage.
"(4) If the length of the marriage is [twenty] years or
less, but more than [fifteen] years, general term alimony
shall continue for not longer than [eighty] per cent of the
number of months of the marriage."
7
circumstance, unless the court finds that deviation from the
durational limits is warranted." St. 2011, c. 124, § 4 (b).
Thus, the durational limits are retroactive and apply to alimony
awards that predate the act. Rodman v. Rodman, 470 Mass. 539,
544 (2015); Chin v. Merriot, 470 Mass. 527, 536 (2015); Holmes
v. Holmes, 467 Mass. 653, 661 n.9 (2014). Pursuant to
uncodified § 4, a payor spouse with an alimony obligation that
existed before March 1, 2012, and that exceeds the act's
durational limits, need only file a complaint for modification
to demonstrate a material change in circumstances. St. 2011,
c. 124, § 4 (b). Nonetheless, a judge may order alimony to
continue beyond the durational limit if the judge finds that
deviation is "required in the interests of justice." Id.
Uncodified § 5 provides a phase-in period for when
complaints for modification of existing alimony awards may be
filed by payor spouses "solely because the existing alimony
judgment exceeds the durational limits." St. 2011, c. 124, § 5.5
This phase-in period was created to avoid a rush to the
5
Statute 2011, c. 124, § 5 provides: "Any complaint for
modification filed by a payor under [§] 4 of this act solely
because the existing alimony judgment exceeds the durational
limits of [G. L. c. 208, § 49,] may only be filed under the
following time limits:
". . .
"(3) Payors who were married to the alimony recipient
[fifteen] years or less, but more than [ten] years, may
file a modification action on or after March 1, 2015."
8
courthouse by payor spouses upon passage of the act. See Doktor
v. Doktor, 470 Mass. 547, 551 n.6 (2015). For marriages lasting
fewer than fifteen years but more than ten years -- as is the
case here -- that date is March 1, 2015. St. 2011, c. 124,
§ 5 (3).
As Clifford admits, his complaint for modification was
filed before the permissible filing date set out in uncodified
§ 5 of the act. In light of the premature filing, dismissal of
Clifford's complaint was appropriate, and we affirm the judge's
denial of relief on that ground. See Holmes, 467 Mass. at 661
n.9.6
b. Deviation standard. We now set forth guidelines for
how a judge of the Probate and Family Court should apply the
G. L. c. 208, § 49 (b) "interests of justice" standard. The
identity of the moving party will depend on whether the marriage
ended before the act's effective date. For marriages that ended
before that date, the payor spouse will be the moving party, and
for marriages that ended after that date, the recipient spouse
6
Clifford brought two additional claims with his complaint
for alimony modification. The judge ruled that these claims
were frivolous and without merit, and they were no longer part
of the case when he considered and decided Clifford's request to
terminate the alimony obligation. Still, the judge, recognizing
our statement in Holmes v. Holmes, 467 Mass. 653, 661 n.9
(2014), that claims not filed "solely because" the existing
alimony judgment exceeded the act's durational limits may be
considered by a probate judge, went on to address the issue
whether deviation was warranted. See St. 2011, c. 124, § 5.
9
will be the moving party. See G. L. c. 208, § 53 (e) ("In
setting an initial alimony order, or in modifying an existing
order, the court may deviate from duration and amount limits for
general term alimony . . . upon written findings that deviation
is necessary."); St. 2011, c. 124, § 4 (b) (durational limits
apply to alimony awards that predate act).
In either case, we conclude that when disputes of fact
arise the judge must make written findings based on evidence to
determine whether the "interests of justice" require alimony
payments to continue beyond the durational limits of the act.
The recipient spouse bears the burden of proving by a
preponderance of the evidence that deviation beyond the
presumptive termination date is "required in the interests of
justice." G. L. c. 208, § 49 (b). See St. 2011, c. 124, § 4
(existing alimony award exceeding durational limits is material
change of circumstance). Further, a judge should evaluate the
circumstances of the parties in the here and now; that is, as
they exist at the time the deviation is sought, rather than the
situation as it existed at the time of divorce. See Schuler v.
Schuler, 382 Mass. 366, 377-378 (1981) (affirming denial of
alimony modification where judge found "at the time of the
modification hearing [payor spouse] had the ability to make the
payments"); Katz v. Katz, 55 Mass. App. Ct. 472, 483 (2002)
(reversing judge's decision to terminate alimony where payor
10
spouse had income-generating assets "at the time of the hearing
on the complaint for modification"). If relevant factors that
existed at the time of the divorce persist when the complaint
for modification is filed, a judge may properly consider them.
For example, if at the time of divorce a spouse was disabled and
that disability was taken into consideration in setting the
initial alimony award, and if that disability persists when the
payor spouse files a complaint for modification, the judge may
properly consider the impact the disability continues to have on
the recipient spouse in determining whether deviation beyond the
act's durational limits is "required in the interests of
justice." G. L. c. 208, § 49 (b).
The importance of this temporal focus is shown in the
instant case. The judge concluded that had Jacquelyn known that
her alimony would terminate prior to the date in the merged
portion of the separation agreement, she would likely have
"bargained for" a different division of property. This analysis
was flawed in two respects. First, there was nothing in the
agreed statement of facts to support this finding. Second, this
logic might well prevent nearly all payor spouses with alimony
obligations predating the act from ever gaining the benefit of
the act's durational limits, because recipient spouses could
argue that, had they known that their alimony payments would be
affected by the act, they would have negotiated their separation
11
agreement differently. This is in direct contravention of the
Legislature's intent that the durational limits apply to
preexisting alimony awards. See St. 2011, c. 124, § 4 (b);
Rodman, 470 Mass. at 544; Chin, 470 Mass. at 536; Holmes, 467
Mass. at 661 n.9.
"Although a 'judge has broad discretion when awarding
alimony under the [act],' . . . the judge must consider all
relevant, statutorily specified factors . . . ." Duff-Kareores
v. Kareores, 474 Mass. 528, 535 (2016), quoting Zaleski v.
Zaleski, 469 Mass. 230, 235 (2014). Here, the appropriate
statutory factors to be considered are set forth in G. L.
c. 208, § 53 (e):
"(1) advanced age; chronic illness; or unusual health
circumstances of either party; (2) tax considerations
applicable to the parties; (3) whether the payor spouse is
providing health insurance and the cost of health insurance
for the recipient spouse; (4) whether the payor spouse has
been ordered to secure life insurance for the benefit of
the recipient spouse and the cost of such insurance; (5)
sources and amounts of unearned income, including capital
gains, interest and dividends, annuity and investment
income from assets that were not allocated in the
parties['] divorce; (6) significant premarital cohabitation
that included economic partnership or marital separation of
significant duration, each of which the court may consider
in determining the length of the marriage; (7) a party's
inability to provide for that party's own support by reason
of physical or mental abuse by the payor; (8) a party's
inability to provide for that party's own support by reason
of that party's deficiency of property, maintenance or
employment opportunity; and (9) upon written findings, any
other factor that the court deems relevant and material."
12
Conclusion. We affirm the denial of relief to the
plaintiff on the grounds that his complaint was premature. See
G. L. c. 208, § 49; St. 2011, c. 124, § 5. The plaintiff may
refile his complaint for modification, and it should be
considered under the standard articulated today.7
Judgment affirmed.
7
We deny Jacquelyn's request for appellate attorney's fees,
as she has not provided a legal basis for such an award. See
Fabre v. Walton, 441 Mass. 9, 10-11 (2004).