Heard: June 15, 2016.
for divorce filed in the Essex Division of the Probate and
Family Court Department on June 19, 2013.
case was heard by Peter C. DiGangi, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
P. Hall (Jaclyn Martin with him) for Christopher Kareores.
Foskett for Ellen Duff-Kareores.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Duff-Kareores and Christopher Kareores were first married to
each other in May, 1995; two children were born of the
marriage before the parties divorced in 2004. The
parties' divorce agreement, which was incorporated in the
divorce judgment, obligated Christopher to, among other
things, pay Ellen alimony in the amount of $7, 600 per month.
Beginning in 2007, Christopher resumed living with Ellen and
the children in what had been the marital residence. In
December, 2012, the parties remarried. In June, 2013, Ellen
filed a complaint for divorce on the ground of an
irretrievable breakdown of the marriage and served the
complaint on Christopher the following month. Following trial
on that complaint, a judge of the Probate and Family Court
concluded that, under the Alimony Reform Act of 2011, St.
2011, c. 124 (alimony reform act or act), the length of the
parties' marriage for purposes of calculating the
durational limits of a general term alimony award to Ellen
was eighteen years, the period from the date of the
parties' first marriage through the date that Christopher
was served with the complaint in the second divorce.
Christopher appealed, and we transferred the case to this
court on our own motion.
case requires us to decide whether the judge correctly
construed G. L. c. 208, § 48, which provides that
"the court may increase the length of the marriage if
there is evidence that the parties' economic marital
partnership began during their cohabitation period prior to
the marriage." We conclude that the judge's findings
do not support a determination that the parties had an
economic marital partnership, within the meaning of G. L. c.
208, § 48, during the period following the service on
the husband of the divorce complaint in the first marriage in
April, 2003, until the parties began cohabiting in May, 2007.
The findings do, however, support a determination that the
length of the marriage includes the period during which the
parties were cohabiting before they remarried, and the period
of the parties' first marriage. Thus, the over-all length
of the marriage here should be calculated by adding together
the period of the first marriage, the period of cohabitation
beginning in May, 2007, and the period of the second
marriage. Accordingly, the matter must be remanded to the
Probate and Family Court for recalculation of the amount and
duration of alimony. Because of the change in the length of
the parties' marriage, in the course of the proceedings
on remand, Christopher also may seek reconsideration of the
judge's orders as to property division and allocation of
the children's education expenses.
summarize the judge's findings of fact, supplemented by
undisputed facts in the record and reserving certain facts
for later discussion. See Pierce v.
Pierce, 455 Mass. 286, 288 (2009). The parties first
married on May 20, 1995. Ellen was employed full time as a
registered nurse, and Christopher was working as a medical
resident. Their first child, a daughter, was born in 1997;
their son was born in 2001. Soon after the birth of their
first child, at around the time that Christopher completed
his medical training and began employment as a fully
qualified physician, Ellen left her position as a registered
nurse to attend to raising their daughter and running the
household. Although she worked part time in the years that
followed, Ellen did not return to full-time employment.
March, 2003, Ellen served Christopher with a divorce
complaint, and in 2004, a divorce judgment nisi issued that
incorporated the parties' separation agreement. The
agreement included merged provisions relating to their minor
children, alimony, and life and medical insurance, as well as
provisions related to property division that did not merge.
The agreement required Christopher to pay alimony to Ellen in
the amount of $7, 600 per month. As provided under the terms
of the agreement, the parties refinanced their mortgage so
that Ellen could purchase Christopher's interest in the
family home, and she continued to live there with the
2007, Christopher moved back into the family home and the
parties began a period of cohabitation, which continued until
they were remarried in December, 2012. The judge found that,
after Christopher returned to living in the family home,
"the parties functioned exactly as they had during their
previous marriage, " with Christopher acting as the
primary wage earner and Ellen as the primary caretaker of the
children and the home. During this period, and throughout the
second marriage, Christopher continued to pay Ellen a monthly
amount that was consistent with the alimony order under the
first divorce judgment. Six weeks after the second marriage,
at Ellen's request, Christopher moved out of the family
residence. On July 18, 2013, Ellen served Christopher with a
complaint for divorce.
judge who conducted the second divorce trial concluded that,
throughout their eighteen-year relationship, the parties
enjoyed an upper-middle income lifestyle. At the time of
trial on the second divorce, Ellen was fifty-three years old
and Christopher was fifty-one. Christopher was in good health
and Ellen suffered from fibromyalgia and
sarcoidosis. The judge found that Ellen "testified
credibly that these [illnesses cause] symptoms [that] affect
her work as a registered nurse." She worked part time
and earned weekly income in the amount of $450. Christopher
was employed full time as an emergency room physician and
held an additional part-time position at another hospital,
earning a total gross weekly income of $7,
867.48. The judge found that Christopher had the
opportunity to acquire future assets and income through his
employment, while Ellen's opportunities were limited
because of "significant health issues, " having
left full-time work to raise the children, and having
bypassed employment opportunities to focus on the children in
the period of the parties' cohabitation between the two
judge found that the length of the second marriage was six
months. However, the judge found that
"the parties' economic marital partnership began
during their cohabitation period prior to the marriage. The
parties began living together in May, 2007 (6.17 years).
Additionally, the parties were married for 7.83 years prior
to their first divorce. The parties have been in a
relationship, with only a brief period of separation, for
eighteen years (i.e. the number of years between the
parties' first marriage and the date of service on the
current Complaint for Divorce)."
judge concluded that "[b]oth parties contributed to
their financial success throughout the course of their
relationship, " but Ellen contributed "more"
because she "worked part-time and was, for the most
part, fully responsible for the child care and homemaking
judgment nisi was entered on the parties' second divorce
on December 5, 2014. Under the terms of the judgment,
Christopher was ordered to pay Ellen weekly general term
alimony in the amount of $1, 106 for a period of fourteen
years. In making this determination, the judge considered the
required factors under G. L. c. 208, § 53 (a.),
including "the length of the marriage; age of the
parties; health of the parties; income, employment and
employability of the parties . . .; economic and non-economic
contribution of both parties to the marriage; marital
lifestyle; . . . [and] lost economic opportunity as a result
of the marriage." The judge also ordered Christopher to
make weekly child support payments to Ellen in the amount of
$917. Concerning education expenses for the two children, the
judge ordered Christopher to continue paying private
secondary school expenses for the younger
child. The older child was a senior in high
school when the judgment entered; the judge ordered
Christopher to pay eighty per cent and Ellen to pay twenty
per cent of the costs of that child's college
education.As to the only substantial marital asset,
Christopher's retirement accounts, the judge awarded
fifty-five per cent to Ellen because she "contributed
more to the financial success of the parties throughout their
relationship." In making this division of the marital
property, the judge stated that he had considered, among the
other factors listed in G. L. c. 208, § 34, the length
of the marriage and the alimony award.