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Duff-Kareores v. Kareores

Supreme Judicial Court of Massachusetts, Essex

June 15, 2016


          Heard: June 15, 2016.

         Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on June 19, 2013.

         The case was heard by Peter C. DiGangi, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          James P. Hall (Jaclyn Martin with him) for Christopher Kareores.

          John Foskett for Ellen Duff-Kareores.

          Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          DUFFLY, J.

         Ellen 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.

         This 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.


         We 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.

         In 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.[1] 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 children.

         In May, 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.

         The 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.[2] 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.[3] 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 marriages.

         The 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)."

         The 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 responsibilities."[4]

         A 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.[5] 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.[6]As to the only substantial marital asset, [7] 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.

         D ...

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