DocketNumber: No. 17–P–1107
Citation Numbers: 106 N.E.3d 693, 93 Mass. App. Ct. 515
Judges: Agnes, Englander, Wolohojian
Filed Date: 6/29/2018
Status: Precedential
Modified Date: 7/24/2022
*515The alimony reform act defines "length of the marriage" as the "number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3. At issue is how to apply this language where there are multiple support complaints (none resulting in a spousal support judgment), a predivorce complaint for modification that led to a *516spousal support judgment, a divorce complaint that did not lead to judgment, and a divorce complaint upon which judgment entered awarding alimony. We hold that, where there are one or more predivorce-judgment complaints (whether for support, modification, or divorce) that result in a judgment of spousal support, it lies within the judge's discretion-taking into account the totality of the circumstances-to determine which of these pleadings is to be used to calculate the length of a marriage for purposes of *695the alimony reform act (act or alimony reform act).
Background. The parties had a child in 1994 and were married on March 26, 1995. From October 1996 through April 2000, the wife filed two complaints for support
On January 11, 2005, the wife filed a complaint
On June 11, 2008, the wife filed a complaint for modification,
After trial, the judge entered a supplemental judgment of modification which (1) restated the husband's existing child support obligation of $400 weekly, and (2) required the husband to pay $273.25 weekly *696to the wife as alimony until (a) the death of either party, (b) the wife's remarriage, (c) entry of an inconsistent divorce judgment, or (d) modification of the judgment.
On April 14, 2011, the husband filed a complaint for divorce pursuant to G. L. c. 208, § 1B, citing an irretrievable breakdown of the marriage. Judgment on this complaint entered on April 6, 2014,
On appeal, a panel of this court vacated the alimony award because it was unclear whether the judge had intended to calculate the duration of the marriage by using the service date of the 2005 support complaint or of the 2011 divorce complaint, and remanded the case for reconsideration of that issue. We otherwise affirmed the judgment. See Balistreri v. Balistreri,
*518The court held a trial on the issue remanded as well as additional matters not pertinent to this appeal.
Discussion. The alimony reform act limits the duration of general alimony by pegging it to the "length of the marriage," G. L. c. 208, § 49(b ), a phrase defined as "the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." G. L. c. 208, § 48. This language is in the disjunctive, see Miller v. Miller,
Our conclusion that the Legislature's reference in § 48 to a "support complaint" encompasses only those resulting in a judgment awarding spousal support (as opposed to support judgments awarding other forms of relief, such as child support or health care costs) is buttressed by the over-all purpose and reach of the alimony reform act. See Chin, supra (court will not read provisions into statute). The act is limited to alimony, its provisions do not have "general or unlimited application outside the arena of alimony," and the definitions contained in § 48 do not apply outside of §§ 49 through 55 of the act.
*520Valaskatgis v. Valaskatgis,
Before proceeding further, we pause to apply the principles we have set out above to the various pleadings that were filed in this case. The husband's April 14, 2011 divorce complaint is the pleading upon which the divorce judgment (including an alimony award) entered. It therefore qualified to be considered as the terminal date of the "length of the marriage" for purposes of § 48. The wife's January 11, 2005 separate support complaint led only to a judgment ordering child support. That complaint, therefore, cannot serve as a terminal date of the "length of the marriage" for purposes of § 48. By contrast, the wife's June 11, 2008 complaint for modification resulted in a judgment awarding spousal support. Although we acknowledge that § 48 does not refer to modification complaints, we conclude from the over-all structure and intent of the section and of the alimony reform act as a whole, see Zaleski v. Zaleski,
Where, as here, there is more than one qualifying pleading, it is within the judge's discretion to determine-taking into account the totality of the circumstances-which of them should be used to calculate the length of the marriage for purposes of § 48. See G. L. c. 208, § 48 (judge has discretion to increase length of marriage where marital partnership began during period of cohabitation). See also G. L. c. 208, § 53(a ) (in determining appropriate duration of alimony, judge may consider other factors that are "relevant and material"); Holmes, supra at 660,
In other circumstances, we would remand to allow the judge to exercise discretion in the first instance as to which of the two qualifying pleadings in this case to use as the terminal date for purposes of § 48. Here, however, we already have the judge's detailed findings after trial, which included an explicit finding that she did not credit the wife's testimony that the *699parties lived together after 2005, and also her ultimate discretionary assessment not to use the divorce complaint as the terminal date of the marriage for purposes of § 48. We see no abuse of discretion in the judge's rejection of the divorce complaint as the appropriate event, and therefore there is no cause for remand. That said, for the reasons set out above, it is the service date of the complaint for modification-not the service date of the complaint for support-that should have been used to calculate the length of the marriage, resulting in a marriage of 159 months, and a presumptive duration of alimony of 111 months under *522G. L. c. 208, § 49(b )(3).
We briefly address the wife's remaining argument
We remand with instructions that the duration of alimony awarded in the supplemental judgment of divorce be amended to conform with this opinion. In all other respects, the judgment is affirmed.
So ordered.
We note that all three of the wife's complaints were on preprinted forms of the Probate and Family Court. The first and third were entitled "[c]omplaint for [s]eparate [s]upport;" the second was entitled "[c]omplaint for [s]upport." Whatever distinction there may be between the two names is immaterial to our analysis.
The record does not contain the service date for any of the various pleadings. However, neither party challenges the fact of service, and we thus accept that the various pleadings were timely and properly served.
In October 1996, the wife filed a complaint for separate support after obtaining a restraining order against the husband. The complaint alleged that the parties had last lived together three days earlier (when, apparently, the husband had been taken into custody for four days following his arrest). No support judgment entered on this complaint, which appears to have been dismissed.
On May 27, 1997, the wife filed a complaint for divorce under G. L. c. 208, § 1B, citing an irretrievable breakdown of the marriage. The complaint alleged that the parties were still living together. No judgment entered on this complaint, which was dismissed under rule 408 of the Probate and Family Court Rules in 2002 due to inactivity.
On April 20, 2000, the wife filed a complaint for support pursuant to G. L. c. 209, § 32F. The complaint alleges that the husband did not reside in the marital home. No judgment entered, and the complaint appears to have been dismissed.
The complaint alleged that abuse prevention orders had entered in 2004 and 2005, and that the husband resided in Gloucester while the wife remained in the marital home in Everett.
On June 3, 2005, the wife filed a complaint for divorce under G. L. c. 208, § 1B, citing cruel and abusive treatment. The complaint alleged that the parties had last lived together in Everett on April 10, 2005, approximately two months earlier. This complaint was dismissed, apparently due to inactivity.
The complaint alleged as a change in circumstances that the husband refused to pay health expenses and "refuses to maintain current expenses."
Also on June 11, 2008, the wife filed a contempt complaint alleging that the husband had failed to comply with the 2005 support judgment.
Specifically, the parties agreed that the husband was in arrears on his child support obligation, setting a payment schedule for the arrearage, requiring the husband to provide medical and dental insurance for the wife and child, and requiring the husband to pay all uninsured health costs.
The judge found that the parties had not "lived together" after February 2, 2005, the date of the judgment of separate support, and accordingly that they "lived together" for less than 118 months.
Specifically, the husband filed a modification complaint seeking to terminate his child support obligation as well as medical coverage for the child. The mother filed a counterclaim for modification seeking an increase in alimony and other relief.
On this basis, the judge concluded that the length of the marriage was 118 months, and awarded seventy months of alimony.
Sbrogna was decided after briefing in this appeal was complete, but before oral argument. We requested, and received, postargument supplemental briefing on the decision's application to this case.
We also held that, despite the fact that the § 48 definition hinges upon the "date of service," divorces initiated by joint petition (which do not require service) nonetheless are within the statute's reach. See Sbrogna,
Even within the field of alimony, the act did not result in a wholesale displacement of our existing law. For example, it did not "displace or ... alter our established legal principle that surviving alimony obligations are not subject to modification." Lalchandani v. Roddy,
The husband's argument that the duration of alimony is to be reduced by the duration of predivorce spousal support was rejected in Holmes, supra at 659-660,
At oral argument, the wife waived her contention that the judge exceeded the scope of our previous remand order by revisiting the issue of health insurance. We therefore do not consider the issue.