NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

SJC-12059

            CLIFFORD E. GEORGE     vs.   JACQUELYN A. GEORGE.



         Suffolk.       September 6, 2016. - November 23, 2016.

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


   Divorce and Separation, Alimony, Modification of judgment.



     Complaint for divorce filed in the Suffolk Division of the
Probate and Family Court Department on May 29, 2001.

     A complaint for modification, filed on August 26, 2013, was
heard by Jeremy A. Stahlin, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Brian J. Kelly for Clifford E. George.
     Matthew P. Barach (Alessandra Petrucelli with him) for
Jacquelyn A. George.


     LOWY, J.       Clifford E. George and Jacquelyn A. George

married in 1989 and divorced in 2002.1       Their separation

agreement, and the judgment that followed, provided that

     1
       Because they share a last name, we refer to the parties by
their first names.
                                                                     2


Clifford would pay Jacquelyn monthly alimony.    In 2013, Clifford

filed a complaint for modification of the divorce judgment that

sought, among other things, to modify his alimony obligation

based on G. L. c. 208, § 49 (b), part of the Alimony Reform Act,

St. 2011, c. 124 (act), which became effective on March 1, 2012,

nearly ten years after the parties' divorce.    Section 49 (b)

provides that general term alimony for marriages lasting more

than ten years but fewer than fifteen years shall not continue

for "longer than [seventy] per cent of the number of months of

the marriage,"   G. L. c. 208, § 49 (b) (3), a process by which a

judge can deviate from the durational limit, where doing so is

"required in the interests of justice."    G. L. c. 208, § 49 (b).

The act also provided a phase-in schedule for when complaints

for modification based on the new durational limits could be

brought for alimony obligations that predated the effective date

of the act.   St. 2011, c. 124, §§ 4, 5.

    In his memorandum of decision, the Probate and Family Court

judge denied Clifford's complaint for modification because he

found that deviation beyond the durational limits of the act was

warranted.    Clifford appealed from this judgment to the Appeals

Court, and we transferred the case to this court on our own

motion.

    We affirm the judge's denial of relief but on the ground

that Clifford's complaint was filed prematurely.    However, we
                                                                    3


utilize this opportunity to set forth guidance for how the

"interests of justice" standard of § 49 (b) should be applied

when determining whether deviating beyond the durational limits

of the act is warranted.

    Background.     Clifford and Jacquelyn married in

Massachusetts in June, 1989.    The parties were divorced in

November, 2002.    Their separation agreement merged into the

divorce judgment, except for the division of property

provisions.   According to one of the merged portions, Clifford

was to pay Jacquelyn $1,800 per month in alimony, subject to

termination "upon the earliest to occur of [Clifford's] death,

[Jacquelyn's] death, [Jacquelyn's] remarriage or July 30, 2026."

The unmerged portion of the separation agreement and the divorce

judgment gave Jacquelyn the former marital home and required

Clifford to pay for her health insurance.

    On August 26, 2013, Clifford filed a complaint for

modification, requesting that the    divorce judgment be modified

in several ways:    to allow Clifford to cease paying for

Jacquelyn's health insurance; to order Jacquelyn to refinance

and remove Clifford's name from the mortgage on the former

marital home; and to terminate alimony payments.    Clifford

asserted that changed circumstances warranted such modification.

Specifically, he claimed that the cost of health insurance had

more than doubled since the time of divorce, his ability to
                                                                    4


secure credit for his business had been harmed by Jacquelyn's

refusal to refinance the mortgage, and the durational limits of

the act called for the termination of alimony payments based on

the length of the parties' marriage.

     Following a pretrial conference in May, 2014, the judge

issued temporary orders, ruling that there were no remaining

issues relating to the health insurance or mortgage, and

requested that the parties submit briefs and an agreed statement

of facts as to the alimony issue.     After reviewing the materials

submitted by the parties, the judge issued a "modification

judgment" and memorandum of decision denying termination of

alimony payments.

     The judge found, and the parties do not contest, that the

parties' marriage lasted 143.97 months (approximately twelve

years) and that based upon the act's durational limits,

Clifford's alimony payments presumptively should have ended

after 100.78 months, or on April 23, 2011.2    G. L. c. 208, § 49

(b) (3).   The judge noted that for divorce judgments predating

the act arising from marriages that lasted as long as the

Georges', uncodified § 5 of the act     requires complaints for

modification based solely on durational limits to be filed no

earlier than March 1, 2015, which was more than one year later


     2
       The judge measured the length of marriage from the date of
marriage to the date of service of the divorce papers.
                                                                    5


than the date that Clifford's complaint for modification was

filed.   St. 2011, c. 124, § 5 (3).   Nonetheless, the judge went

on to evaluate whether deviation from the durational limits was

warranted, stating that he was obligated to do so.    The judge

concluded that deviation was warranted because, he theorized,

Jacquelyn "bargained for" a specific alimony termination date in

exchange for a certain division of property and, had Jacquelyn

known that alimony would terminate before the date contained in

the agreement, she would "likely have insisted on different

property division terms."   As mentioned, Clifford appealed from

the judge's decision to the Appeals Court, and we transferred

the case to this court on our own motion.3   In his brief,

Clifford makes clear that his appeal focuses only on the judge's

decision that deviation from the durational limits was

warranted, and on how such deviation issues should be analyzed.

     Discussion.   a.   The Alimony Reform Act.   The act became

effective on March 1, 2012, and deemed all alimony awards that

predated it to be general term alimony.    St. 2011, c. 124,

§§ 4 (b), 7.   Under the act, general term alimony may be

     3
       After the modification judgment was issued, Jacquelyn
filed a motion for attorney's fees and costs. A motion hearing
was held in December, 2014. In a memorandum of decision
following the hearing, as well as in a supplemental modification
judgment, the judge awarded her certain attorney's fees and
costs. Although Clifford appealed from some of the award, he
stated in his brief that he is no longer appealing any issue
involving attorney's fees. The issue is therefore waived.
Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975).
                                                                   6


modified in amount and duration upon a material change of

circumstance.   G. L. c. 208, § 49 (e).   The act also provides

presumptive termination dates for general term alimony

obligations for marriages lasting fewer than twenty years.4

G. L. c. 208, § 49 (b).   A judge may deviate beyond these

termination dates if the judge makes a written finding that

doing so is in the "interests of justice."    G. L. c. 208,

§ 49 (b).

     Uncodified § 4 (b) of the act states:   "Existing alimony

awards which exceed the durational limits established in said

[§] 49 of said [G. L. c.] 208 shall be modified upon a complaint

for modification without additional material change of

     4
       The presumptive termination dates -- which are expressed
as percentages of the length of the marriage -- for payment of
general term alimony are set forth in G. L. c. 208,
§ 49 (b) (1)-(4):

     "(1) If the length of the marriage is [five] years or less,
     general term alimony shall continue for not longer than
     one-half the number of months of the marriage.

     "(2) If the length of the marriage is [ten] years or less,
     but more than [five] years, general term alimony shall
     continue for not longer than [sixty] per cent of the number
     of months of the marriage.

     "(3) If the length of the marriage is [fifteen] years or
     less, but more than [ten] years, general term alimony shall
     continue for not longer than [seventy] per cent of the
     number of months of the marriage.

     "(4) If 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."
                                                                   7


circumstance, unless the court finds that deviation from the

durational limits is warranted."   St. 2011, c. 124, § 4 (b).

Thus, the durational limits are retroactive and apply to alimony

awards that predate the act.   Rodman v. Rodman, 470 Mass. 539,

544 (2015); Chin v. Merriot, 470 Mass. 527, 536 (2015); Holmes

v. Holmes, 467 Mass. 653, 661 n.9 (2014).    Pursuant to

uncodified § 4, a payor spouse with an alimony obligation that

existed before March 1, 2012, and that exceeds the act's

durational limits, need only file a complaint for modification

to demonstrate a material change in circumstances.    St. 2011,

c. 124, § 4 (b).   Nonetheless, a judge may order alimony to

continue beyond the durational limit if the judge finds that

deviation is "required in the interests of justice."       Id.

     Uncodified § 5 provides a phase-in period for when

complaints for modification of existing alimony awards may be

filed by payor spouses "solely because the existing alimony

judgment exceeds the durational limits."    St. 2011, c. 124, § 5.5

This phase-in period was created to avoid a rush to the

     5
       Statute 2011, c. 124, § 5 provides: "Any complaint for
modification filed by a payor under [§] 4 of this act solely
because the existing alimony judgment exceeds the durational
limits of [G. L. c. 208, § 49,] may only be filed under the
following time limits:

     ". . .

     "(3) Payors who were married to the alimony recipient
     [fifteen] years or less, but more than [ten] years, may
     file a modification action on or after March 1, 2015."
                                                                        8


courthouse by payor spouses upon passage of the act.      See Doktor

v. Doktor, 470 Mass. 547, 551 n.6 (2015).       For marriages lasting

fewer than fifteen years but more than ten years -- as is the

case here -- that date is March 1, 2015.       St. 2011, c. 124,

§ 5 (3).

        As Clifford admits, his complaint for modification was

filed before the permissible filing date set out in uncodified

§ 5 of the act.     In light of the premature filing, dismissal of

Clifford's complaint was appropriate, and we affirm the judge's

denial of relief on that ground.      See Holmes, 467 Mass. at 661

n.9.6

        b.   Deviation standard.   We now set forth guidelines for

how a judge of the Probate and Family Court should apply the

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

identity of the moving party will depend on whether the marriage

ended before the act's effective date.       For marriages that ended

before that date, the payor spouse will be the moving party, and

for marriages that ended after that date, the recipient spouse


        6
       Clifford brought two additional claims with his complaint
for alimony modification. The judge ruled that these claims
were frivolous and without merit, and they were no longer part
of the case when he considered and decided Clifford's request to
terminate the alimony obligation. Still, the judge, recognizing
our statement in Holmes v. Holmes, 467 Mass. 653, 661 n.9
(2014), that claims not filed "solely because" the existing
alimony judgment exceeded the act's durational limits may be
considered by a probate judge, went on to address the issue
whether deviation was warranted. See St. 2011, c. 124, § 5.
                                                                    9


will be the moving party.   See G. L. c. 208, § 53 (e) ("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 . . . upon written findings that deviation

is necessary."); St. 2011, c. 124, § 4 (b) (durational limits

apply to alimony awards that predate act).

    In either case, we conclude that when disputes of fact

arise the judge must make written findings based on evidence to

determine whether the "interests of justice" require alimony

payments to continue beyond the durational limits of the act.

The recipient spouse bears the burden of proving by a

preponderance of the evidence that deviation beyond the

presumptive termination date is "required in the interests of

justice."   G. L. c. 208, § 49 (b).   See St. 2011, c. 124, § 4

(existing alimony award exceeding durational limits is material

change of circumstance).    Further, a judge should evaluate the

circumstances of the parties in the here and now; that is, as

they exist at the time the deviation is sought, rather than the

situation as it existed at the time of divorce.    See Schuler v.

Schuler, 382 Mass. 366, 377-378 (1981) (affirming denial of

alimony modification where judge found "at the time of the

modification hearing [payor spouse] had the ability to make the

payments"); Katz v. Katz, 55 Mass. App. Ct. 472, 483 (2002)

(reversing judge's decision to terminate alimony where payor
                                                                  10


spouse had income-generating assets "at the time of the hearing

on the complaint for modification").   If relevant factors that

existed at the time of the divorce persist when the complaint

for modification is filed, a judge may properly consider them.

For example, if at the time of divorce a spouse was disabled and

that disability was taken into consideration in setting the

initial alimony award, and if that disability persists when the

payor spouse files a complaint for modification, the judge may

properly consider the impact the disability continues to have on

the recipient spouse in determining whether deviation beyond the

act's durational limits is "required in the interests of

justice."   G. L. c. 208, § 49 (b).

    The importance of this temporal focus is shown in the

instant case.   The judge concluded that had Jacquelyn known that

her alimony would terminate prior to the date in the merged

portion of the separation agreement, she would likely have

"bargained for" a different division of property.    This analysis

was flawed in two respects.   First, there was nothing in the

agreed statement of facts to support this finding.   Second, this

logic might well prevent nearly all payor spouses with alimony

obligations predating the act from ever gaining the benefit of

the act's durational limits, because recipient spouses could

argue that, had they known that their alimony payments would be

affected by the act, they would have negotiated their separation
                                                                  11


agreement differently.   This is in direct contravention of the

Legislature's intent that the durational limits apply to

preexisting alimony awards.   See St. 2011, c. 124, § 4 (b);

Rodman, 470 Mass. at 544; Chin, 470 Mass. at 536; Holmes, 467

Mass. at 661 n.9.

    "Although a 'judge has broad discretion when awarding

alimony under the [act],' . . . the judge must consider all

relevant, statutorily specified factors . . . ."   Duff-Kareores

v. Kareores, 474 Mass. 528, 535 (2016), quoting Zaleski v.

Zaleski, 469 Mass. 230, 235 (2014).   Here, the appropriate

statutory factors to be considered are set forth in G. L.

c. 208, § 53 (e):

    "(1) advanced age; chronic illness; or unusual health
    circumstances of either party; (2) tax considerations
    applicable to the parties; (3) whether the payor spouse is
    providing health insurance and the cost of health insurance
    for the recipient spouse; (4) whether the payor spouse has
    been ordered to secure life insurance for the benefit of
    the recipient spouse and the cost of such insurance; (5)
    sources and amounts of unearned income, including capital
    gains, interest and dividends, annuity and investment
    income from assets that were not allocated in the
    parties['] divorce; (6) significant premarital cohabitation
    that included economic partnership or marital separation of
    significant duration, each of which the court may consider
    in determining the length of the marriage; (7) a party's
    inability to provide for that party's own support by reason
    of physical or mental abuse by the payor; (8) a party's
    inability to provide for that party's own support by reason
    of that party's deficiency of property, maintenance or
    employment opportunity; and (9) upon written findings, any
    other factor that the court deems relevant and material."
                                                                 12


     Conclusion.   We affirm the denial of relief to the

plaintiff on the grounds that his complaint was premature.   See

G. L. c. 208, § 49; St. 2011, c. 124, § 5.   The plaintiff may

refile his complaint for modification, and it should be

considered under the standard articulated today.7

                                   Judgment affirmed.




     7
       We deny Jacquelyn's request for appellate attorney's fees,
as she has not provided a legal basis for such an award. See
Fabre v. Walton, 441 Mass. 9, 10-11 (2004).
