Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Sbrogna v. Sbrogna

Appeals Court of Massachusetts, Worcester

January 16, 2018

RALPH F. SBROGNA
v.
JUDITH L. SBROGNA.

          Heard: November 3, 2017.

         Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on June 27, 1994.

         A 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.

          Erin M. Shapiro (David E. Cherny also present) for the wife.

          Present: Wolohojian, Massing, & Wendlandt, JJ.

          WOLOHOJIAN, J.

         This 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.

         The 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.

         If, 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).

         On 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.[1] 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.

         Almost 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.

         The 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) .[2] 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.[3]

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.