RALPH F. SBROGNA
JUDITH L. SBROGNA.
Heard: November 3, 2017.
for divorce filed in the Worcester Division of the Probate
and Family Court Department on June 27, 1994.
complaint for modification was filed on September 15, 2016,
and a motion to dismiss was heard by Leilah A. Kearny, J.
Richard M. Novitch for the husband.
M. Shapiro (David E. Cherny also present) for the wife.
Present: Wolohojian, Massing, & Wendlandt, JJ.
case, like many divorce cases, involved the filing of more
than one complaint and/or petition for divorce. The question
presented here is which of those pleadings is to be used for
purposes of G. L. c. 208, § 48, enacted as part of the
alimony reform act, which defines the phrase "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. We
conclude that it is the pleading upon which judgment of
divorce absolute entered.
parties were married on June 16, 1973. In 1975, the
Legislature added irretrievable breakdown of the marriage as
a ground for divorce. A divorce on this ground can be
initiated in one of two ways. If both parties agree that the
marriage is irretrievably broken, then a joint petition
signed by both parties or their attorneys and accompanied by
(among other things) a notarized separation agreement, may be
filed under G. L. c. 208, § 1A (which for convenience,
we shall call a § 1A petition). A § 1A petition
need not be served and no summons or answer is required. If a
divorce action has been initiated by a § 1A petition,
the "court shall make no inquiry into, nor consider any
evidence of the individual marital fault of the
parties." G. L. c. 208, § 1A, as appearing in St.
1985, c. 691, § 1.
instead, one party alone initiates the divorce, then he or
she must begin by filing a complaint under G. L. c. 208,
§ IB (a § IB complaint). A § IB complaint,
together with the summons, must be served on the other
spouse. Mass.R.Dom.Rel.P. 4(d). In a case initiated by a
§ IB complaint, the parties must wait at least six
months before the court will hold a final hearing, and
judgment cannot enter unless a judge finds that an
irretrievable breakdown has existed for the period following
the filing of the complaint up to the date of the hearing. G.
L. c. 208, § IB, as amended through St. 1986, c. 189.
See generally McLellan, Handbook of Massachusetts Family Law,
at 133-140 (3d ed. 1991); Kindregan, McBrien & Kindregan,
Family Law and Practice § 8:5 (4th ed. 2013).
November 6, 1990, the husband filed a § IB complaint on
the ground that there had been an irretrievable breakdown of
the marriage. There is no documentary evidence that this
complaint was served on the wife, and there is no return of
service reflected on the probate court docket. On January 22,
1991, the husband filed a motion for a temporary restraining
order to preserve marital assets and a motion for temporary
orders regarding support, care, and maintenance of the wife
and their minor children. Those motions were never acted on,
and nothing more appears to have occurred in the case until
more than two years later when, on July 3, 1993, the §
IB complaint was marked "inactive." The case was
not dismissed or otherwise formally closed, nor was the
"inactive" status of the case entered on the
docket. There was, however, a handwritten notation by the
register of probate on the upper portion of the docket sheet
that the case was inactive.
one year later, on June 27, 1994, the parties filed a joint
motion to amend, together with a joint § 1A petition and
separation agreement. The motion to amend was allowed, and
the divorce action thereafter proceeded under § 1A
rather than under § IB. On July 29, 1994, the judge made
the required § 1A findings, and a judgment of divorce
nisi under § 1A entered. Judgment of divorce absolute
entered on October 28, 1994, again under § 1A. The terms
of the separation agreement merged into the judgment.
husband filed a modification complaint on September 15, 2016,
seeking to modify his alimony obligation based on the
provisions of the alimony reform act. Using the filing date
of his 1990 § IB complaint as the end date of the
marriage (as opposed to the 1994 filing date of the joint
§ 1A petition), he alleged that the parties had been
married more than fifteen, but less than twenty, years and,
therefore, that his alimony obligation was subject to
modification. See G. L. c. 208, § 49(b) (4)
The wife's motion, under Mass.R.Dom.Rel.P. 12(b)(6), to
dismiss the modification complaint was allowed after a
nonevidentiary hearing. This appeal followed.
alimony reform act created new limits on the duration of
general alimony and pegged those limits to the "length
of the marriage." G. L. c. 208, § 49(b), inserted
by St. 2011, c. 124, § 3. For example, the duration of
general alimony in the case of a marriage of "20 years
or less, but more than 15 years" is capped at eighty
percent of the duration of the marriage. G. L. c. 208, §
49(b)(4). Also by way of example, the duration of general
alimony in the case of a ten-to-fifteen-year marriage is
capped at seventy percent of the duration of the marriage. G.
L. c. 208, § 49(b)(3). These caps, however, do not apply
where the parties have ...