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Balistreri v. Balistreri

Appeals Court of Massachusetts, Middlesex

June 29, 2018

GUISEPPE BALISTRERI
v.
JANINE M. BALISTRERI.

          Heard: March 8, 2018.

         Complaint for divorce filed in the Middlesex Division of the Probate and Family Court Department on April 14, 2011.

         After review by this court, 89 Mass.App.Ct. 1106 (2016), the remaining issue on remand was heard by Randy J. Kaplan, J.

          Brian J. Kelly for the wife.

          Mark L. Nestor for the husband.

          Present: Wolohojian, Agnes, & Englander, JJ.

          WOLOHOJIAN, J.

         The alimony reform act defines "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. At issue is how to apply this language where there are multiple support complaints (none resulting in a spousal support judgment), a predivorce complaint for modification that led to a spousal support judgment, a divorce complaint that did not lead to judgment, and a divorce complaint upon which judgment entered awarding alimony. We hold that, where there are one or more predivorce-judgment complaints (whether for support, modification, or divorce) that result in a judgment of spousal support, it lies within the judge's discretion -- taking into account the totality of the circumstances -- to determine which of these pleadings is to be used to calculate the length of a marriage for purposes of the alimony reform act (act or alimony reform act).

         Background.

         The parties had a child in 1994 and were married on March 26, 1995. From October 1996 through April 2000, the wife filed two complaints for support[1] and a complaint for divorce.[2] The details of these various complaints are set out in the margin; of importance for our purposes here is that none of them led to a judgment.[3]

         On January 11, 2005, the wife filed a complaint[4] for separate support that, based on the parties' agreement, led to a judgment requiring the husband to pay $400 each week in child support. No spousal support was awarded or agreed to.[5]

         On June 11, 2008, the wife filed a complaint for modification, [6] seeking to modify the 2005 support judgment to require the husband to cover health costs for her and the child, and to pay spousal support.[7] On July 31, 2009, a partial modification judgment entered in accordance with the parties' agreement with respect to all issues except spousal support.[8]Because there was no agreement with respect to spousal support, the judge bifurcated that issue and scheduled it for trial.

         After trial, the judge entered a supplemental judgment of modification which (1) restated the husband's existing child support obligation of $400 weekly, and (2) required the husband to pay $273.25 weekly to the wife as alimony until (a) the death of either party, (b) the wife's remarriage, (c) entry of an inconsistent divorce judgment, or (d) modification of the judgment.

         On April 14, 2011, the husband filed a complaint for divorce pursuant to G. L. c. 208, § IB, citing an irretrievable breakdown of the marriage. Judgment on this complaint entered on April 6, 2014, [9] awarding the wife $298 weekly in alimony to terminate either in ...


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