Commonwealth v. Agogo

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17-P-1107 Appeals Court

GUISEPPE BALISTRERI vs. JANINE M. BALISTRERI.

No. 17-P-1107.

Middlesex. March 8, 2018. - June 29, 2018.

Present: Wolohojian, Agnes, & Englander, JJ.

Divorce and Separation, Alimony. Evidence, Conversation between
husband and wife.

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.

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
2

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

1 We note that all three of the wife's complaints were on
preprinted forms of the Probate and Family Court. The first and
third were entitled "[c]omplaint for [s]eparate [s]upport;" the
second was entitled "[c]omplaint for [s]upport." Whatever
distinction there may be between the two names is immaterial to
our analysis.

2 The record does not contain the service date for any of
the various pleadings. However, neither party challenges the
fact of service, and we thus accept that the various pleadings
were timely and properly served.
3

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

3 In October 1996, the wife filed a complaint for separate
support after obtaining a restraining order against the husband.
The complaint alleged that the parties had last lived together
three days earlier (when, apparently, the husband had been taken
into custody for four days following his arrest). No support
judgment entered on this complaint, which appears to have been
dismissed.

On May 27, 1997, the wife filed a complaint for divorce
under G. L. c. 208, § 1B, citing an irretrievable breakdown of
the marriage. The complaint alleged that the parties were still
living together. No judgment entered on this complaint, which
was dismissed under rule 408 of the Probate and Family Court
Rules in 2002 due to inactivity.

On April 20, 2000, the wife filed a complaint for support
pursuant to G. L. c. 209, § 32F. The complaint alleges that the
husband did not reside in the marital home. No judgment
entered, and the complaint appears to have been dismissed.

4 The complaint alleged that abuse prevention orders had
entered in 2004 and 2005, and that the husband resided in
Gloucester while the wife remained in the marital home in
Everett.

5 On June 3, 2005, the wife filed a complaint for divorce
under G. L. c. 208, § 1B, citing cruel and abusive treatment.
The complaint alleged that the parties had last lived together
in Everett on April 10, 2005, approximately two months earlier.
This complaint was dismissed, apparently due to inactivity.
4

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, § 1B, citing an irretrievable

6 The complaint alleged as a change in circumstances that
the husband refused to pay health expenses and "refuses to
maintain current expenses."

7 Also on June 11, 2008, the wife filed a contempt complaint
alleging that the husband had failed to comply with the 2005
support judgment.

8 Specifically, the parties agreed that the husband was in
arrears on his child support obligation, setting a payment
schedule for the arrearage, requiring the husband to provide
medical and dental insurance for the wife and child, and
requiring the husband to pay all uninsured health costs.
5

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 seventy months, or upon her remarriage, or

either party's death. The wife appealed.

On appeal, a panel of this court vacated the alimony award

because it was unclear whether the judge had intended to

calculate the duration of the marriage by using the service date

of the 2005 support complaint or of the 2011 divorce complaint,

and remanded the case for reconsideration of that issue. We

otherwise affirmed the judgment. See Balistreri v. Balistreri,

89 Mass. App. Ct. 1106 (2016).

The court held a trial on the issue remanded as well as

additional matters not pertinent to this appeal. 10 As relevant

for our purposes here, the judge found that the parties did not

"continue[] to have a relationship" after February 2, 2005 --

the date on which child support was first ordered. For this

reason, the judge found "it is appropriate that the length of

the marriage be determined from the date of the service of the

9 The judge found that the parties had not "lived together"
after February 2, 2005, the date of the judgment of separate
support, and accordingly that they "lived together" for less
than 118 months.

10 Specifically, the husband filed a modification complaint
seeking to terminate his child support obligation as well as
medical coverage for the child. The mother filed a counterclaim
for modification seeking an increase in alimony and other
relief.
6

[c]omplaint" that led to that award of child support. 11 The

judge did not have the benefit of Sbrogna v. Sbrogna, 92 Mass.

App. Ct. 639 (2018), at the time of her decision. 12

Discussion. The alimony reform act limits the duration of

general alimony by pegging it to the "length of the marriage,"

G. L. c. 208, § 49(b), a phrase defined 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. This language is in the disjunctive, see Miller

v. Miller, 448 Mass. 320, 329 (2007) ("It is fundamental to

statutory construction that the word 'or' is disjunctive . . ."

[citation omitted]), meaning that either a qualifying support

complaint or a qualifying divorce pleading may serve as the

terminal event for purposes of the § 48 definition. The

definition places both types of pleadings (divorce and support)

on equal footing for its purposes; neither is given priority or

additional weight, whether by virtue of earlier service, filing,

or otherwise. See Chin v. Merriot, 470 Mass. 527, 537 (2015),

quoting from Commissioner of Correction v. Superior Ct. Dept. of

the Trial Ct. for the County of Worcester, 446 Mass. 123, 126

11On this basis, the judge concluded that the length of the
marriage was 118 months, and awarded seventy months of alimony.

12Sbrogna was decided after briefing in this appeal was
complete, but before oral argument. We requested, and received,
postargument supplemental briefing on the decision's application
to this case.
7

(2006) (court will not "read into the statute a provision which

the Legislature did not see fit to put there"). Thus, assuming

that more than one particular pleading qualifies for inclusion,

the Legislature has chosen to allow each of them to be

considered for purposes of § 48. This straightforward reading

of the statutory language, however, begs two questions. The

first is which pleadings qualify to be considered. The second

is how to choose among competing qualifying pleadings.

We reached a partial answer to the first question

in Sbrogna. In that case, the husband filed a divorce complaint

under G. L. c. 208, § 1B, that ultimately became inactive and

upon which judgment never entered. Later, the parties filed a

joint divorce petition under G. L. c. 208, § 1A, that led to a

divorce judgment awarding alimony. On those facts, we held that

the legally relevant divorce pleading for purposes of

calculating the "length of the marriage" under G. L. c. 208,

§ 48, was the one upon which the divorce judgment

entered. 13 Sbrogna, 92 Mass. App. Ct. at 643. We stated that

"[t]o read the statute otherwise would lead to the nonsensical

result that service of a pleading that leads neither to a valid

divorce nor to an alimony award could nonetheless serve as the

13We also held that, despite the fact that the § 48
definition hinges upon the "date of service," divorces initiated
by joint petition (which do not require service) nonetheless are
within the statute's reach. See Sbrogna, 92 Mass. App. Ct. at
643.
8

basis for calculating the length of a marriage and the duration

of alimony, even if the parties reconciled and lived together

for decades before ultimately divorcing" (emphasis

supplied). Id. at 642. Although Sbrogna involved only divorce

pleadings, we see no reason why its reasoning should not apply

with equal force to support complaints. Thus, we conclude that

a support complaint that results in a judgment awarding spousal

support qualifies to be considered for purposes of § 48, but

that a support complaint that does not result in such a judgment

does not.

Our conclusion that the Legislature's reference in § 48 to

a "support complaint" encompasses only those resulting in a

judgment awarding spousal support (as opposed to support

judgments awarding other forms of relief, such as child support

or health care costs) is buttressed by the over-all purpose and

reach of the alimony reform act. See Chin, supra (court will

not read provisions into statute). The act is limited to

alimony, its provisions do not have "general or unlimited

application outside the arena of alimony," and the definitions

contained in § 48 do not apply outside of §§ 49 through 55 of

the act. 14 Valaskatgis v. Valaskatgis, 87 Mass. App. Ct. 756,

14Even within the field of alimony, the act did not result
in a wholesale displacement of our existing law. For example,
it did not "displace or . . . alter our established legal
principle that surviving alimony obligations are not subject to
9

757 (2015). The act is not concerned, for example, with the

division of marital assets, id. at 758, quoting from Kittredge

v. Kittredge, 441 Mass. 28, 43 (2004) (definitions of § 48 do

not restrain judge's broad discretion to "weigh[] and balanc[e]

. . . the § 34 factors, and the resulting equitable division of

the parties' marital property"), nor does it provide for child

support. There is simply no indication that the Legislature

intended to include within the definition of § 48 complaints

that do not result in spousal support judgments. Nor would it

make any sense to read the statute to encompass such complaints;

otherwise, an award of temporary child support or health care

under G. L. c. 208, § 19 (which is outside the alimony reform

act) could, for example, inexplicably and illogically reduce the

duration of alimony awarded at the time of divorce. Since even

temporary alimony awards under G. L. c. 208, § 17, do not reduce

the presumptive maximum duration of alimony under the act,

see Holmes v. Holmes, 467 Mass. 653, 659 (2014), there is even

less reason for other types of support judgments to do so.

Before proceeding further, we pause to apply the principles

we have set out above to the various pleadings that were filed

modification." Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 822
(2015). See Van Arsdale v. Van Arsdale, 477 Mass. 218, 219
(2017), quoting from G. L. c. 208, § 48 ("The act changed
neither the essential purpose nor the basic definition of
alimony: 'the payment of support from a spouse, who has the
ability to pay, to a spouse in need of support'"); Hassey v.
Hassey, 85 Mass. App. Ct. 518, 524 (2014) (same).
10

in this case. The husband's April 14, 2011 divorce complaint is

the pleading upon which the divorce judgment (including an

alimony award) entered. It therefore qualified to be considered

as the terminal date of the "length of the marriage" for

purposes of § 48. The wife's January 11, 2005 separate support

complaint led only to a judgment ordering child support. That

complaint, therefore, cannot serve as a terminal date of the

"length of the marriage" for purposes of § 48. By contrast, the

wife's June 11, 2008 complaint for modification resulted in a

judgment awarding spousal support. Although we acknowledge that

§ 48 does not refer to modification complaints, we conclude from

the over-all structure and intent of the section and of the

alimony reform act as a whole, see Zaleski v. Zaleski, 469 Mass.

230, 239-240 (2014), that a predivorce-judgment complaint for

modification that results in an award of spousal support can

qualify as the terminal date for the length of the marriage

under § 48. Cf. Flor v. Flor, 92 Mass. App. Ct. 360, 366 (2017)

(alimony award made on postdivorce modification complaint

related back to divorce judgment because parties' separation

agreement reserved right to future alimony). Thus, there were

two qualifying complaints the judge could consider for purposes

of § 48: the husband's April 14, 2011 divorce complaint, and

the wife's June 11, 2008 complaint for modification.
11

Where, as here, there is more than one qualifying pleading,

it is within the judge's discretion to determine -- taking into

account the totality of the circumstances -- which of them

should be used to calculate the length of the marriage for

purposes of § 48. See G. L. c. 208, § 48 (judge has discretion

to increase length of marriage where marital partnership began

during period of cohabitation). See also G. L. c. 208, § 53(a)

(in determining appropriate duration of alimony, judge may

consider other factors that are "relevant and

material"); Holmes, supra at 660 (judge has discretion to reduce

duration of alimony below presumptive maximum where temporary

alimony has been paid for unusually long period of time or

recipient spouse has unfairly delayed final resolution); Duff-

Kareores v. Kareores, 474 Mass. 528, 538 (2016) (judge retains

discretion under § 48 for period of premarital cohabitation).

As noted above, the statute itself does not give any priority or

weight to one particular qualifying pleading or the other; thus,

although the temporal sequence of the pleadings may be

considered as a factor, it is not necessarily dispositive.

Instead, the judge should consider the totality of the

circumstances to determine which is the appropriate pleading to

use.

In other circumstances, we would remand to allow the judge

to exercise discretion in the first instance as to which of the
12

two qualifying pleadings in this case to use as the terminal

date for purposes of § 48. Here, however, we already have the

judge's detailed findings after trial, which included an

explicit finding that she did not credit the wife's testimony

that the parties lived together after 2005, and also her

ultimate discretionary assessment not to use the divorce

complaint as the terminal date of the marriage for purposes of

§ 48. We see no abuse of discretion in the judge's rejection of

the divorce complaint as the appropriate event, and therefore

there is no cause for remand. That said, for the reasons set

out above, it is the service date of the complaint for

modification -- not the service date of the complaint for

support -- that should have been used to calculate the length of

the marriage, resulting in a marriage of 159 months, and a

presumptive duration of alimony of 111 months under G. L.

c. 208, § 49(b)(3). 15

We briefly address the wife's remaining argument 16 that her

constitutional due process rights were violated when the judge,

15 The husband's argument that the duration of alimony is to
be reduced by the duration of predivorce spousal support was
rejected in Holmes, supra at 659-660. Neither of the exceptions
identified in Holmes were found by the judge. Specifically, the
judge did not find either "that temporary alimony ha[d] been
paid for an unusually long period of time or that the recipient
spouse ha[d] unfairly delayed final resolution of the case in an
attempt to prolong the payment of alimony." Id. at 660.
16 At oral argument, the wife waived her contention that the

judge exceeded the scope of our previous remand order by
13

on the basis of spousal disqualification, did not permit her to

testify to conversations she had with the husband after 2009.

See Mass. G. Evid. § 504(b)(1) (2018). In essence, her argument

is that no spousal disqualification could exist after the

terminal date of the marriage under § 48. However, as we have

previously held, "the § 48 definition of 'length of the

marriage' applies only when the phrase appears" in the

provisions of the alimony reform act. Valaskatgis, 87 Mass.

App. Ct. at 757. For all other purposes, the common-law rule

remains that a marriage is not over until the divorce judgment

becomes absolute. See Ross v. Ross, 385 Mass. 30, 35

(1982); Sbrogna, 92 Mass. App. Ct. at 642.

We remand with instructions that the duration of alimony

awarded in the supplemental judgment of divorce be amended to

conform with this opinion. In all other respects, the judgment

is affirmed.

So ordered.

revisiting the issue of health insurance. We therefore do not
consider the issue.