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JACQUELYN D. SNOW
WINTHROP E. SNOW.
October 6, 2016. - February 9, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Divorce and Separation, Alimony, Foreign divorce : How to determine the durational limits of alimony where alimony is awarded in a complaint for modification and no alimony had earlier been ordered in the original divorce action.
The case was heard by David J. Dacyczyn, J.
The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Brigid M. Hennessey (Buffy D. Lord also present) for the husband.
Lindsay D. DiSantis (David R. Cianflone also present) for the wife.
GANTS, C.J. The 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.
Jacquelyn 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. 1 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
On 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.2
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.
On 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.
In 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).3 The judge ordered alimony
for the full durational limit, commencing on the date of the
first temporary alimony payment.
In determining the amount of general term alimony, the
judge considered the factors set forth in G. L. c. 208, § 53
(a),4 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
The judge did not address the issue of health insurance,
but found that the wife was "not eligible for health insurance
through the husband's employer at this time."
Both parties appealed from the judgment, and we transferred
the case to this court on our own motion. On appeal, the
husband contends that the judge erred by commencing the
durational limit of alimony on the date of the first temporary
alimony payment (January 23, 2015) rather than on the date of
the New York judgment of divorce (July 21, 2010). The wife
agrees that the judge erred in his selection of the commencement
date, but she claims that the appropriate commencement date
should have been the date of the award of general term alimony
in the judgment of modification (May 5, 2015). The wife also
contends that the judge erred in failing to include overtime pay
in his alimony calculation and in failing to make a
determination as to health insurance coverage. Discussion.
Before we address the parties' claims of
error, we must first address a preliminary question that affects
these claims: was the wife's petition for alimony a complaint
for modification of an alimony judgment under G. L. c. 208,
§ 37, or an initial complaint for alimony under G. L. c. 208,
There are several relevant differences between the two
forms of complaint. Where a spouse files an initial complaint
for alimony, before or after the divorce, the judge is required
to consider all the factors identified in G. L. c. 208,
§ 53 (a), in determining the amount and duration of alimony.
G. L. c. 208, § 53 (a). See George v. George, 476 Mass. 65, 71
(2016), citing Duff-Kareores v. Kareores, 474 Mass. 528, 535
(2016). The spouse seeking alimony for the first time need not
demonstrate a material change in circumstances. See Cherrington
v. Cherrington, 404 Mass. 267, 270 (1989); Kinosian v. Kinosian,
351 Mass. 49, 52 (1966); Talbot v. Talbot, 13 Mass. App. Ct.
456, 460 (1982). Where the issue of alimony was earlier
adjudicated and the judge made the requisite findings based on
the statutory factors, modification of the amount or duration of
an award of general term alimony may occur only where a party is
able to demonstrate "a material change of circumstances
warranting modification." G. L. c. 208, § 49 (e). See Buckley
v. Buckley, 42 Mass. App. Ct. 716, 719 (1997) ("where the trial
court has previously passed on the issue of alimony in the
divorce judgment," any change in alimony must be accomplished
through complaint for modification).
Here, the wife, before she retained counsel, characterized
her complaint as one seeking modification. But the title or
form of the complaint is not dispositive; "it is to be treated
in accordance with its essential substance." Baird v. Baird,
311 Mass. 329, 331 (1942) (petition that had been described as
"for modification" treated as initial complaint for alimony).
Nor is the timing of the complaint conclusive; under § 34, an
initial complaint for alimony may be made either in the divorce
action or "upon a complaint in an action brought at any time
after a divorce."
The husband contends that the issue of alimony was
adjudicated in the New York divorce action because the wife
initially requested maintenance and the judge awarded no
maintenance. But the judge made clear that the wife "did not
pursue the claim" for maintenance, and declared that he did not
award maintenance to the wife because she was capable of self
support and ultimately did "not seek maintenance" from the
husband. If the request for alimony had been pursued, the judge
in New York, like his counterpart in Massachusetts, would have
had a statutory obligation to consider specific factors in
determining the duration and amount of maintenance. See N.Y.
Dom. Rel. Law § 236(6) (McKinney Supp. 2010). But the judge in
New York did not address any of those factors in denying
maintenance because, at the time of judgment, the wife no longer
sought alimony. "We do not believe that, if alimony is not
requested during the divorce proceedings, we should
automatically assume that it was not warranted in the
circumstances or hold that each party has waived all opportunity
to demonstrate that it was then warranted." Cherrington, 404
Mass. at 270 n.6. Where, as here, the wife did not pursue her
request for maintenance and the judge in New York made no
findings based on the statutory factors in awarding no
maintenance, we conclude that the wife's complaint in
Massachusetts was an initial complaint for alimony rather than a
complaint for modification.5
1. Commencement of durational limit. Under the Alimony
Reform Act of 2011, St. 2011, c. 124 (reform act), "[i]f the
length of the marriage is [twenty] years or less, but more than
[fifteen] years, general term alimony shall continue for not
longer than [eighty] per cent of the number of months of the marriage" unless the judge makes a written finding that
deviation beyond this time limit is required in the interests of
justice. G. L. c. 208, § 49 (b) (4). In Holmes v. Holmes, 467
Mass. 653, 659 (2014), we concluded that the durational limit
starts to run from the date of the award of general term alimony
in the judgment of divorce rather than the date that temporary
alimony was first awarded. We reasoned that "general term
alimony may commence only on the issuance of the judgment
declaring the termination of the marriage," and that
"[t]emporary alimony is not general term alimony" because it may
commence before the spousal relationship has been legally
In Holmes, however, alimony was sought in the divorce
complaint and general term alimony was awarded as part of the
divorce judgment; here, the divorce judgment issued before the
initial complaint for alimony was filed and before any alimony
was awarded. The husband relies on this distinction in claiming
that the durational limit is triggered by the issuance of the
divorce judgment in New York, not the award of temporary or
general term alimony. We disagree.
To determine when the Legislature intended the durational
limit of general term alimony to commence, "we look first to the
language of the relevant statute, which is generally the
clearest window into the collective mind of the Legislature."
Holmes, 467 Mass. at 659. "'[A] statute must be interpreted
according to the intent of the Legislature ascertained from all
its words construed by the ordinary and approved usage of the
language, considered in connection with the cause of its
enactment, the mischief or imperfection to be remedied and the
main object to be accomplished, to the end that the purpose of
its framers may be effectuated.'" Rodman v. Rodman, 470 Mass.
539, 541 (2015), quoting Commonwealth v. Figueroa, 464 Mass.
365, 368 (2013).
Under G. L. c. 208, § 49 (b), "general term alimony shall
continue for not longer than" a fixed percentage of the number
of months of the marriage. General term alimony cannot
"continue" unless it has previously been awarded. The plain
language of the statute makes the commencement of the durational
limitation period dependent on the award of general term
alimony. See Holmes, 467 Mass. at 659. Thus, until a judge has
awarded general term alimony, the duration of general term
alimony does not begin to run.
That same plain language dictates that the durational
limits commence on the award of general term alimony, not on the
award of temporary alimony, which, as noted in Holmes, is
separate and distinct from general term alimony. In determining
that the durational limit commenced on the award of temporary
alimony, the judge relied upon the mistaken premise that the
wife's action was a complaint for modification rather than an
initial complaint for alimony. The judge further noted that
temporary relief was warranted because of the wife's "dire
financial predicament," and declared that the husband should be
"given credit against the alimony duration limits." Even though
the judge erred in concluding that the durational limits
commenced on the award of temporary alimony, nothing bars the
judge on remand from determining that the husband should be
credited for his payment of temporary alimony and that alimony
payments should end on or about the date he declared as the
durational limit (December 21, 2029). A judge in his or her
discretion, applying the requisite factors in § 53 (a), "may
determine that the appropriate duration of alimony is less than
the presumptive maximum without a written finding that deviation
from the presumptive maximum is required in the interests of
justice" (emphasis in original). Holmes, 467 Mass. at 658. See
G. L. c. 208, § 53 (a) (in determining appropriate duration of
alimony, judge may consider other factors that are "relevant and
2. Overtime. In adjudicating an initial complaint for
alimony, the income of both parties is one of the statutory
factors that a judge is required to consider, and the amount of
general term alimony "should not generally exceed the
recipient's need or [thirty] to [thirty-five] per cent of the
difference between the parties' gross incomes established at the
time of the order being issued." G. L. c. 208, § 53 (a), (b).
With exceptions not relevant here, "income shall be defined as
set forth in the Massachusetts child support guidelines." G. L.
c. 208, § 53 (b). See Zaleski v. Zaleski, 469 Mass. 230, 242
244 (2014). Under the guidelines, "income is defined as gross
income from whatever source," and specifically includes
"salaries, wages, [and] overtime." Child Support Guidelines
§ I(A)(1)(a) (Aug. 1, 2013). Therefore, in determining an award
of alimony on an initial complaint for alimony, a judge must
consider the parties' income, including overtime.
However, in adjudicating a complaint for modification of an
alimony judgment, "[i]ncome from . . . overtime work shall be
presumed immaterial to alimony modification if . . . the . . .
overtime began after entry of the initial order." G. L. c. 208,
§ 54 (b). Because the judge erroneously characterized the
wife's petition as a complaint for modification, the judge in
determining the alimony award considered only the husband's
overtime income "[a]t the time of the divorce judgment and
throughout the marriage"; he did not consider the husband's
overtime income after the divorce judgment and at the time of
trial on what we now recognize as the wife's initial complaint
for alimony. This was error. On remand, the judge must
consider the husband's postdivorce judgment overtime income in
determining the award of alimony on the wife's initial complaint
for alimony. Cf. George, 476 Mass. at 70 ("a judge should
evaluate the circumstances of the parties in the here and now").
3. Health insurance coverage. The wife claims that the
judge erred in failing to make a determination as to health
insurance coverage. Under the New York divorce judgment, the
wife is responsible for securing her own health insurance. The
Massachusetts judge recognized the practical consequences of
that aspect of the judgment, finding that the wife had not seen
a doctor since 2002 and had not seen a dentist since 1997.
However, apart from noting that the wife is not presently
eligible for health insurance through the husband's employer,
the judge did not address the issue of how the wife would obtain
health insurance coverage, and the judgment did not mention it.
Implicitly, the wife remains responsible for securing her own
health insurance coverage. We agree with the wife that, where
the judge was adjudicating an initial complaint for alimony, the
judge erred in failing explicitly to make a determination
regarding the wife's health insurance coverage. Under § 34, the statute that governs the adjudication of an
initial complaint for alimony:
"When the court makes an order for alimony on behalf of a spouse, said court shall determine whether the obligor under such order has health insurance or other health coverage available to him through an employer or organization or has health insurance or other health coverage available to him at reasonable cost that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance or coverage available to him, said court shall include in the support order a requirement that the obligor do one of the following: exercise the option of additional coverage in favor of the spouse, obtain coverage for the spouse, or reimburse the spouse for the cost of health insurance. In no event shall the order for alimony be reduced as a result of the obligor's cost for health insurance coverage for the spouse."
G. L. c. 208, § 34.
We describe the legislative evolution of these provisions.
In 1983, as part of his over-all effort to address chronic
shortfalls in the collection of State revenues, Governor Michael
Dukakis proposed legislation that he characterized as a "Revenue
Enforcement and Protection Program." See J. Brouder & G.
McDowell, Paying for Massachusetts: Tax Evasion and the
Underground Economy 10 (1983), available at
[https://perma.cc/PQ3J-7AA8] (Brouder & McDowell). Among the
legislation that emerged from that proposal was St. 1983,
c. 233, § 77, which amended G. L. c. 208, § 34, by adding the
"When the court makes an order for alimony on behalf of a spouse, and such spouse is not covered by a private group health insurance plan, said court shall determine whether the obligor under such order has health insurance on a group plan available to him through an employer or organization that may be extended to cover the spouse for whom support is ordered. When said court has determined that the obligor has such insurance, said court shall include in the support order a requirement that the obligor exercise the option of additional coverage in favor of such spouse."
The Department of Revenue estimated that this provision, along
with ten other sections related to divorce, alimony, and child
support, would save $4 million per year in State expenditures.
Brouder & McDowell, supra at 35.
Five years later, in 1988, Governor Dukakis proposed
legislation for what he called "the first universal health care
program in the nation; a commitment to assure health security
for all of our citizens by 1992." Letter from Michael S.
Dukakis to Senate and House of Representatives (Jan. 6, 1988)
(submitted with 1988 House Doc. No. 300). Among the legislation
that emerged from that over-all effort was St. 1988, c. 23,
§ 67, which amended § 34 by deleting the two sentences added by
St. 1983, c. 233, § 77, and replacing them with the three
sentences regarding health insurance in the current § 34, whose
language was left unchanged by the 2011 reform act.
The reform act, however, included St. 2011, § 124, § 3, a
new statute which inserted c. 208, § 53, into the General Laws
and which provides in relevant part:
"In setting an initial alimony order, or in modifying an existing order, the court may deviate from duration and amount limits for general term alimony and rehabilitative alimony upon written findings that deviation is necessary. Grounds for deviation may include: . . . (3) whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse . . . ." G. L. c. 208, § 53 (e).
From this legislative history, we discern that the
legislative purpose behind St. 1983, c. 233, § 77, was to reduce
the burden on the public arising from divorced spouses without
health insurance. The substantive scope of St. 1988, c. 23,
§ 67, was broader in keeping with the over-all purpose of that
legislation to move toward universal health coverage at a
We do not attempt in this opinion to harmonize the
potential conflict between § 34, which bars a judge from
reducing the amount of alimony because of the expense incurred
in providing health insurance coverage for the recipient spouse,
and § 53 (e), which expressly allows a judge to deviate from the
amount limits for general term alimony because of the cost
incurred by the payor spouse in providing health care coverage
to the recipient spouse. Nor do we opine as to whether the
judge's obligation to order the provision of health insurance
coverage under § 34 applies where the recipient spouse is
eligible for such coverage only through the Health Connector
under the Patient Protection and Affordable Care Act, P.L. 111
148, 124 Stat. 119 (2010), or its Massachusetts counterpart, "An
Act providing access to affordable, quality, accountable health
care," St. 2006, c. 58, both of which were enacted long after
the relevant provisions of § 34. The parties did not brief
these issues, and no amicus brief was submitted. Rather, we
limit our opinion to the claim of error presented by the wife,
and conclude that, where a judge awards alimony under § 34, the
judge must specifically address the issue of health insurance
coverage for the recipient spouse by making the determination
required under § 34, and, where appropriate under the statute,
by including the provision of health insurance coverage within
the judgment. See Zeh v. Zeh, 35 Mass. App. Ct. 260, 267-268
(1993) ("Given these statutory requirements and the critical
importance and expense of health insurance, a judge's findings
and orders under § 34 expressly should reflect compliance with
the statute and make provision for the requisite coverage or
Conclusion. The case is remanded to the Probate and Family
Court with instructions to reevaluate the alimony judgment in
light of our opinion and enter a new judgment accordingly.
1 In New York, the Supreme Court is the supreme trial court. See N.Y. Const. art. VI, §§ 3, 7.
2 After filing the complaint, the wife was represented by counsel.
3 Under G. L. c. 208, § 49 (b) (4), the durational limit of general term alimony for a marriage of more than fifteen but less than or equal to twenty years is no longer than eighty per cent of the number of months of the marriage.
4 General Laws c. 208, § 53 (a), provides: "In determining the appropriate form of alimony and in setting the amount and duration of support, a court shall consider: the length of the marriage; age of the parties; health of the parties; income, employment and employability of both parties, including employability through reasonable diligence and additional training, if necessary; economic and non-economic contribution of both parties to the marriage; marital lifestyle; ability of each party to maintain the marital lifestyle; lost economic opportunity as a result of the marriage; and such other factors as the court considers relevant and material."
5. Our conclusion would be different if the New York judge had considered each of the statutory factors and determined based on the circumstances that no maintenance award was appropriate. In such a case, the spouse who sought alimony would have had a full and fair adjudication on the merits of the claim for alimony, and factual findings would have been made that a subsequent judge could consider in deciding whether there has been a material change in circumstances justifying modification of that alimony judgment.
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