Heard: March 8, 2018.
for divorce filed in the Middlesex Division of the Probate
and Family Court Department on April 14, 2011.
review by this court, 89 Mass.App.Ct. 1106 (2016), the
remaining issue on remand was heard by Randy J. Kaplan, J.
J. Kelly for the wife.
L. Nestor for the husband.
Present: Wolohojian, Agnes, & Englander, JJ.
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).
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 and a complaint for
divorce. 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.
January 11, 2005, the wife filed a complaint 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
11, 2008, the wife filed a complaint for modification,
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. On July 31, 2009, a partial modification
judgment entered in accordance with the parties'
agreement with respect to all issues except spousal
support.Because there was no agreement with respect
to spousal support, the judge bifurcated that issue and
scheduled it for trial.
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.
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,  awarding the wife $298 weekly in alimony
to terminate either in ...