Supreme Judicial Court of Massachusetts, Berkshire
JACQUELYN D. SNOW
WINTHROP E. SNOW.
Heard: October 6, 2016.
filed in the Berkshire Division of the Probate and Family
Court Department on August 25, 2014.
case was heard by David J. Dacyczyn, J.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
M. Hennessey (Buffy D. Lord also present) for the husband.
Lindsay D. DiSantis (David R. Cianflone also present) for the
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy,
& Budd, JJ.
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.
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. 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.
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.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.
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.
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). The judge ordered alimony
for the full durational limit, commencing on the date of the
first temporary alimony payment.
determining the amount of general term alimony, the judge
considered the factors set forth in G. L. c. 208, § 53
(a.),  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
judge did not address the issue of health insurance, but
found that the wife was "not eligible for health
insurance through the ...