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SJC-12223

            SUSAN VAN ARSDALE   vs.   WILLIAM VAN ARSDALE.



             Essex.     March 6, 2017. - May 31, 2017.

 Present:   Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.


Divorce and Separation, Alimony, Modification of judgment.    Due
     Process of Law, Retroactive application of
     statute. Statute, Retroactive application.


     Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on October 30, 1996.

     A complaint for modification, filed on September 1, 2015,
was heard by Mary Anne Sahagian, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     David E. Cherny (Erin M. Shapiro also present) for the
wife.
     Paul M. Kane (Allison R. McNulty also present) for the
husband.


     LOWY, J.   This appeal raises the constitutionality of

applying the durational limits of the Alimony Reform Act of 2011

(act), St. 2011, c. 124, to certain alimony agreements predating

the act's effective date.   We conclude that the application of
                                                                     2


the act's durational limits to certain alimony agreements that

predate the act is not unconstitutionally retroactive because

the statute does not attach "new legal consequences to events

completed before its enactment."     Landgraf v. USI Film Prods.,

511 U.S. 244, 270 (1994).    We also conclude that the Probate and

Family Court judge did not abuse her discretion when she

declined to deviate from the durational limits in this case.

     Background.   1.   The Alimony Reform Act of 2011.   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."     G. L. c. 208,

§ 48.    See Hassey v. Hassey, 85 Mass. App. Ct. 518, 522 (2014).

It did, however, make several changes to the Commonwealth's

alimony laws.    See generally Kindregan, Reforming Alimony:

Massachusetts Reconsiders Postdivorce Spousal Support, 46

Suffolk U. L. Rev. 13, 26 (2013).

     The relevant change on appeal is the creation of durational

limits -- or presumptive termination dates -- for alimony

obligations arising from marriages lasting fewer than twenty

years.    G. L. c. 208, § 49 (b).   This presumption that alimony

should terminate after a certain length of time may be overcome,

however, by showing that the payment of alimony beyond the

relevant durational limit is "required in the interests of
                                                                    3


justice."   Id.    See George v. George, 476 Mass. 65, 69-70

(2016).

     The Legislature provided that the durational limits, in

contrast to the remainder of the act, may be applied to alimony

judgments that entered before the act's effective date of March

1, 2012, with certain delineated exceptions not relevant here.

St. 2011, c. 124, §§ 4, 7.    See Chin v. Merriot, 470 Mass. 527,

536 (2015).   See also George, supra at 68.

     2.   Facts.    William Van Arsdale and Susan Van Arsdale

married in 1979 and divorced in 1997. 1   They had two children,

who were unemancipated at the time of divorce.    The divorce

judgment incorporated and merged the parties' separation

agreement, which provided for William to pay $3,333.33 in child

support and $3,333.33 in alimony to Susan each month.    The

agreement provided that the alimony payments would continue

until either party's death or Susan's remarriage.

Notwithstanding those termination provisions, the parties agreed

to review William's alimony payment obligations when the

parties' youngest child became emancipated and when William

retired from full-time employment, provided he was at least

sixty-two years of age.




     1
       Because they share a last name, we refer to the parties by
their first names.
                                                                     4


     In 2005, William filed a complaint for modification in

which he alleged that the parties' youngest child was

emancipated.   That complaint led to a 2006 modification

agreement, which merged with the modification judgment, wherein

the parties agreed to discontinue the child support payments and

to increase alimony payments to $7,571.26 per month.

     In 2015, William filed another complaint for modification

seeking to terminate his alimony obligation based upon the act's

durational limits and because he had retired from full-time

employment.    Susan filed an answer and a counterclaim seeking to

increase both her alimony payments and the amount of life

insurance William was obligated to maintain on his life for her.

She was later permitted to amend her answer to add her challenge

to the constitutionality of the durational limits.

     After a trial, the Probate and Family Court judge issued an

order terminating William's obligation to pay Susan alimony

because the act's relevant durational limit had been exceeded 2

and Susan had not shown that deviation from them was necessary.

The judge reasoned that deviation was not necessary because

Susan's medical condition had not precluded her from employment


     2
       For marriages lasting longer than fifteen years but less
than twenty years, like the Van Arsdale's, the durational limit
-- which is expressed as a percentage of the length of the
marriage -- is "[seventy] per cent of the number of months of
the marriage." G. L. c. 208, § 49 (b) (3).
                                                                    5


and that she had been terminated from her job on account of her

failure to "heed constructive criticism."    Although the judge

declined to rule on Susan's constitutional arguments, she noted

that Susan should not have had an expectation that the alimony

payments would continue in perpetuity because of the provision

in the agreement allowing for a review of William's alimony

obligation upon his retirement.    Susan appealed, and this court

granted her application for direct appellate review.

     Discussion.    1.   Constitutional challenge.   Susan argues

that the application of the act's durational limits to the

alimony agreement between her and William is unconstitutionally

retroactive.

     a.   Retroactivity.    When a party argues that a statute is

impermissibly retroactive we first "must determine whether the

law . . . has a retroactive effect.    If not, and assuming the

law is otherwise constitutional, no further inquiry is

necessary."     Moe v. Sex Offender Registry Bd., 467 Mass. 598,

606 (2014). 3

     To answer the question, we employ the "new legal

consequences" test as articulated by the United States Supreme

Court in Landgraf, 511 U.S. at 269-270.    See Moe, 467 Mass. at

     3
       If the statute is determined to be retroactive we must ask
two more questions: "whether the Legislature clearly intended
it to be retroactive" and "[w]here it so intended, . . . whether
retroactive application is constitutional." Moe v. Sex Offender
Registry Bd., 467 Mass. 598, 606 (2014).
                                                                     6


607.   "[T]he court must ask whether the new provision attaches

new legal consequences to events completed before its enactment.

The conclusion that a particular rule operates 'retroactively'

comes at the end of a process of judgment concerning the nature

and extent of the change in the law and the degree of connection

between the operation of the new rule and a relevant past

event."     Landgraf, supra.

       b.   Analysis.   Before discussing whether the durational

limits presumption has a retroactive effect, we must first

address observations we made in George and Holmes v. Holmes, 467

Mass. 653, 661 n.9 (2014).     In George, we stated plainly that

the durational limit provisions of the act were

"retroactive." George, 476 Mass. at 68, citing Rodman v. Rodman,

470 Mass. 539, 544 (2015), Chin, 470 Mass. at 536,

and Holmes, supra.      That statement, however, was merely a

recognition that the durational limits presumption applies to

alimony agreements that predate the act.     We did not comment on

whether the limits have a retroactive effect in the

constitutional sense.     See Landgraf, 511 U.S. at 269 ("statute

does not operate 'retrospectively' merely because it is applied

in a case arising from conduct antedating the statute's

enactment").
                                                                       7


       We now turn to whether the act's durational limits

presumption has a retroactive effect (i.e., whether it attaches

new legal consequences to agreements that predate the act).

       In Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender

Registry Bd., 472 Mass. 492, 497 (2015) (Doe No. 3839), we

examined whether G. L. c. 6, §§ 178C-178Q, the sex offender

registry law, had an unconstitutionally retroactive effect.      The

law provides that individuals convicted of, or adjudicated as a

delinquent juvenile by reason of, a sex offense have to register

with the Sex Offender Registry Board (SORB).    The registration

requirement applies to people who were convicted or adjudicated

delinquent prior to the statute's enactment.    Doe No.

3839, supra at 496-497.    The statute, however, allows SORB to

relieve individuals such as the plaintiff in that case from the

obligation to register as a sex offender.    Id. at 497.    Because

the law made the plaintiff merely eligible for registration and

allowed him an opportunity to prove to SORB that he should not

have to register, we held that the law did not necessarily

attach new legal consequences to the plaintiff's prestatute

adjudications and that the statute applied prospectively to

him.    Id.

       By contrast, in Doe, Sex Offender Registry Bd. No. 8725

v. Sex Offender Registry Bd., 450 Mass. 780, 787, 793 (2008)

(Doe No. 8725), we held that a prior version of the sex offender
                                                                         8


registry law was unconstitutional as applied to the plaintiff

because it required him to register as a sex offender (i.e.,

attached new legal consequences to him) "solely by virtue of his

prior conviction."    Id. at 784.    Unlike the plaintiff in Doe No.

3839, the plaintiff in Doe No. 8725 did not have an opportunity

to prove that he should not have to register.         Doe No.

8725, supra at 787.    This lack of opportunity to escape the

effects of a statute attaching new legal consequences and

enacted after the plaintiff's conviction was the crucial

distinction between an unconstitutionally retroactive statute

(Doe No. 8725) and a constitutional one (Doe No. 3839).

     Here, as in Doe No. 3839, Susan had an opportunity to show

that the durational limits should not apply to her.        See G. L.

c. 208, § 49 (b).    The durational limits merely create a

presumption of termination that a recipient spouse such as Susan

can rebut by showing that deviation from the limits is "required

in the interests of justice."       Id.    Applying such a presumption

is not impermissibly retroactive.         See Doe No. 3839, 472 Mass.

at 497 (presumption of registration does not attach new legal

consequence to events prior to sex offender registry law).        See

also Tobin's Case, 424 Mass. 250, 255 (1997) ("[E]stablishment

of a rebuttable presumption also does not violate due process.

Presumptions are simply rules of evidence that fall within the

general power of government to adopt").        Thus, the act compels
                                                                    9


no new legal consequences to the bargains struck by parties in

merged alimony agreements entered into prior to the act's

effective date.

     The constitutionality of the application of the act's

durational limits presumption to agreements that predate the act

is further demonstrated by the standard for deviation beyond

those limits articulated in George.      There, we held that the

G. L. c. 208, § 49 (b), "interests of justice" standard should

focus on the circumstances of the parties in the "here and

now."   George, 476 Mass. at 70.    By requiring such a temporal

focus, the statute ensures that any new legal consequences that

result from the durational limits are not the result of actions

that predated the act, but rather are based on the circumstances

of the parties as they exist before the judge deciding a

modification complaint.   See Doe No. 3839, 472 Mass. at 497

(individual's obligation to register was based on

contemporaneous evaluation of risk to reoffend and

dangerousness, rather than on convictions prior to sex offender

registry law).

     Because we hold that the act's durational limits are not

retroactive in the constitutional sense, no further inquiry is

necessary.   See Moe, 467 Mass. at 606.

     2.   Abuse of discretion.     "[A] judge enjoys considerable

discretion in fashioning an appropriate modification
                                                                  10


judgment." Holmes, 467 Mass. at 661, quoting Pierce v. Pierce,

455 Mass. 286, 293 (2009).   Here, the judge concluded that

Susan's health did not preclude her from employment; that she

had two residences, one of which could be rented out; that she

had over $170,000 in cash and more than $1 million in assets;

and that her lifestyle had not been negatively impacted since

the 2006 modification.   Further, the judge properly examined the

circumstances of the parties in the "here and now."      George, 476

Mass. at 70.   The judge did not abuse her discretion in

declining to deviate beyond the act's durational limits.

     Conclusion.   The durational limits of the act are not

impermissibly retroactive, and the judge did not abuse her

discretion in declining to deviate beyond the limits.

                                    Judgment affirmed.
