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Snow v. Snow

Supreme Judicial Court of Massachusetts, Berkshire

February 9, 2017


          Heard: October 6, 2016.

         Complaint filed in the Berkshire Division of the Probate and Family Court Department on August 25, 2014.

         The case was heard by David J. Dacyczyn, J.

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

          Brigid M. Hennessey (Buffy D. Lord also present) for the husband.

          Lindsay D. DiSantis (David R. Cianflone also present) for the wife.

          Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

          GANTS, C.J.

         The wife in this case did not pursue her claim for alimony during the divorce proceeding, but sought and obtained an alimony award more than four years after the divorce judgment. We conclude that, in such circumstances, the durational limit of general term alimony under G. L. c. 208, § 49 (b), starts to run on the date that the alimony was awarded, not on the date of the divorce judgment or on the date temporary alimony was awarded. We also conclude that the income earned from overtime pay must be considered in making an initial alimony award determination under G. L. c. 208, § 34, regardless of whether that determination is made before or after the divorce judgment. Finally, we conclude that, where a judge awards alimony under § 34, the judge must specifically address the issue of health insurance coverage for the recipient spouse as required by § 34.


         Jacquelyn D. Snow (wife) and Winthrop E. Snow (husband) were married in New York in 1991, and separated in January, 2008. They have no children. The husband commenced the divorce action in the New York Supreme Court in May, 2008, claiming "constructive abandonment" by the wife.[1] The wife was initially represented by counsel, but her attorney's motion to withdraw was allowed by the judge in September, 2009. After the wife failed to answer the husband's verified complaint, comply with discovery obligations, and appear for her deposition, the judge found her in default and entered a judgment for divorce on July 21, 2010, in accordance with N.Y. Dom. Rel. Law § 211 (McKinney 2016) ("A final judgment shall be entered by default for want of appearance or pleading, . . . only upon competent oral proof or upon written proof that may be considered on a motion for summary judgment"). As to alimony (which New York characterizes as "maintenance"), the judge found that the wife requested maintenance of $1, 000 per week on her statement of net worth "but did not pursue the claim, " so no maintenance was awarded.

         On August 25, 2014, the wife filed a pro se complaint for modification of a foreign divorce in the Probate and Family Court in Massachusetts, where both parties were then domiciled.[2]She asked that the final judgment of divorce be modified "with respect to alimony, which was not addressed." She explained that circumstances had changed in that the husband had been supporting her with payments of $1, 000 per week since September, 2013, but he had stopped such payments in June, 2014, and, as a result, she was homeless and living in her automobile.

         On January 22, 2015, the judge entered a temporary alimony order awarding the wife $850 per week, commencing on January 23, 2015. After trial, the judge entered a "Judgment of Modification" on May 5, 2015, awarding the wife $810 per week in general term alimony, to commence on May 8, 2015, until December 21, 2029, or the death of one of the parties, whichever came first. The judge also ordered the husband to secure a life insurance policy, designating the wife as the beneficiary, in the amount of $520, 000, to be reduced by $40, 000 annually during the alimony payment period.

         In determining the duration of alimony, the judge found that the length of the marriage was approximately 224 months (eighteen years and eight months) and that the durational limit of alimony under G. L. c. 208, § 49 (b) (4), was 179 months (fourteen years and eleven months).[3] The judge ordered alimony for the full durational limit, commencing on the date of the first temporary alimony payment.

         In determining the amount of general term alimony, the judge considered the factors set forth in G. L. c. 208, § 53 (a.), [4] and determined that alimony should be approximately thirty- five per cent of the difference between the husband's and wife's weekly incomes. The judge calculated the husband's income as his then-current base pay; the judge did not include any overtime in the calculation because he found that overtime income did not significantly affect the parties' economic status at "the time of the divorce judgment and throughout the marriage."

         The judge did not address the issue of health insurance, but found that the wife was "not eligible for health insurance through the ...

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