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17-P-194                                                Appeals Court

               RALPH F. SBROGNA   vs.    JUDITH L. SBROGNA.


                             No. 17-P-194.

      Worcester.        November 3, 2017. - January 16, 2018.

           Present:   Wolohojian, Massing, & Wendlandt, JJ.


Divorce and Separation, Alimony.        Practice, Civil, Motion to
     dismiss, Complaint.



     Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on June 27, 1994.

     A complaint for modification was filed on September 15,
2016, and a motion to dismiss was heard by Leilah A. Keamy, J.


     Richard M. Novitch for the husband.
     Erin M. Shapiro (David E. Cherny also present) for the
wife.


     WOLOHOJIAN, J.    This case, like many divorce cases,

involved the filing of more than one complaint and/or petition

for divorce.    The question presented here is which of those

pleadings is to be used for purposes of G. L. c. 208, § 48,

enacted as part of the alimony reform act, which defines the
                                                                     2


phrase "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.    We conclude that it is

the pleading upon which judgment of divorce absolute entered.

       The parties were married on June 16, 1973.   In 1975, the

Legislature added irretrievable breakdown of the marriage as a

ground for divorce.    A divorce on this ground can be initiated

in one of two ways.    If both parties agree that the marriage is

irretrievably broken, then a joint petition signed by both

parties or their attorneys and accompanied by (among other

things) a notarized separation agreement, may be filed under

G. L. c. 208, § 1A (which for convenience, we shall call a § 1A

petition).    A § 1A petition need not be served and no summons or

answer is required.    If a divorce action has been initiated by a

§ 1A petition, the "court shall make no inquiry into, nor

consider any evidence of the individual marital fault of the

parties."    G. L. c. 208, § 1A, as appearing in St. 1985, c. 691,

§ 1.

       If, instead, one party alone initiates the divorce, then he

or she must begin by filing a complaint under G. L. c. 208, § 1B

(a § 1B complaint).    A § 1B complaint, together with the

summons, must be served on the other spouse.    Mass.R.Dom.Rel.P.

4(d).    In a case initiated by a § 1B complaint, the parties must
                                                                    3


wait at least six months before the court will hold a final

hearing, and judgment cannot enter unless a judge finds that an

irretrievable breakdown has existed for the period following the

filing of the complaint up to the date of the hearing.      G. L.

c. 208, § 1B, as amended through St. 1986, c. 189.    See

generally McLellan, Handbook of Massachusetts Family Law, at

133-140 (3d ed. 1991); Kindregan, McBrien & Kindregan, Family

Law and Practice § 8:5 (4th ed. 2013).

     On November 6, 1990, the husband filed a § 1B complaint on

the ground that there had been an irretrievable breakdown of the

marriage.   There is no documentary evidence that this complaint

was served on the wife, and there is no return of service

reflected on the probate court docket. 1   On January 22, 1991, the

husband filed a motion for a temporary restraining order to

preserve marital assets and a motion for temporary orders

regarding support, care, and maintenance of the wife and their

minor children.   Those motions were never acted on, and nothing

more appears to have occurred in the case until more than two

years later when, on July 3, 1993, the § 1B complaint was marked

"inactive."   The case was not dismissed or otherwise formally

closed, nor was the "inactive" status of the case entered on the

     1
       We note that the parties dispute whether the wife was in
fact served and whether she had, at a minimum, actual notice of
the complaint. These disputes are immaterial given our
analysis.
                                                                     4


docket.    There was, however, a handwritten notation by the

register of probate on the upper portion of the docket sheet

that the case was inactive.

     Almost one year later, on June 27, 1994, the parties filed

a joint motion to amend, together with a joint § 1A petition and

separation agreement.     The motion to amend was allowed, and the

divorce action thereafter proceeded under § 1A rather than under

§ 1B.    On July 29, 1994, the judge made the required § 1A

findings, and a judgment of divorce nisi under § 1A entered.

Judgment of divorce absolute entered on October 28, 1994, again

under § 1A.     The terms of the separation agreement merged into

the judgment.

     The husband filed a modification complaint on September 15,

2016, seeking to modify his alimony obligation based on the

provisions of the alimony reform act.     Using the filing date of

his 1990 § 1B complaint as the end date of the marriage (as

opposed to the 1994 filing date of the joint § 1A petition), he

alleged that the parties had been married more than fifteen, but

less than twenty, years and, therefore, that his alimony

obligation was subject to modification.     See G. L. c. 208,

§ 49(b)(4). 2   The wife's motion, under Mass.R.Dom.Rel.P.


     2
       The uncodified provisions of the alimony reform act
provide that "existing alimony judgments that exceed the
durational limits under section 49 of said chapter 208 shall be
deemed a material change of circumstance that warrant
                                                                        5


12(b)(6), to dismiss the modification complaint was allowed

after a nonevidentiary hearing.       This appeal followed. 3

       The alimony reform act created new limits on the duration

of general alimony and pegged those limits to the "length of the

marriage."       G. L. c. 208, § 49(b), inserted by St. 2011, c. 124,

§ 3.       For example, the duration of general alimony in the case

of a marriage of "20 years or less, but more than 15 years" is

capped at eighty percent of the duration of the marriage.       G. L.

c. 208, § 49(b)(4).       Also by way of example, the duration of

general alimony in the case of a ten-to-fifteen-year marriage is

capped at seventy percent of the duration of the marriage.

G. L. c. 208, § 49(b)(3).       These caps, however, do not apply

where the parties have been married more than twenty years.

G. L. c. 208, § 49(c).       In those cases, the alimony reform act

imposes no limit on the duration of general alimony.

       The alimony reform act departs from the general rule

(grounded in common law as well as in common sense) that parties


modification." St. 2011, c. 124, § 4(b). However, modification
cannot be sought until certain dates pegged to the length of the
marriage have passed. In this case, because the marriage was
alleged to be more than fifteen years, but less than twenty,
modification could not be sought until on or after September 1,
2015. St. 2011, c. 124, § 5(4).
       3
       Our review of the allowance of a rule 12(b)(6) motion is
de novo, accepting as true the factual allegations of the
complaint. Galiastro v. Mortgage Electronic Registration Sys.,
Inc., 467 Mass. 160, 164 (2014).
                                                                    6


are married until they are not, 4 and instead defines the "length

of the marriage" (for purposes of the alimony reform act alone,

see Valaskatgis v. Valaskatgis, 87 Mass. App. Ct. 756, 757-758

[2015]) 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 duly filed in a court of
     the commonwealth or another court with jurisdiction to
     terminate the marriage."

G. L. c. 208, § 48.   The definition is not inflexible; the court

is permitted to "increase the length of the marriage if there is

evidence that the parties' economic marital partnership began

during their cohabitation period prior to the marriage."    G. L.

c. 208, § 48.   See Duff-Kareores v. Kareores, 474 Mass. 528, 538

(2016).

     Section 48 refers to "a" complaint or petition in the

singular, indicating that the Legislature contemplated only a

single relevant complaint or petition for purposes of the

definition.   The latter part of the definition states that the

pleading must have been filed in a court with the authority to

terminate the marriage.   This suggests that the relevant

pleading is the one that results in a valid judgment of divorce.

To read the statute otherwise would lead to the nonsensical

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

     4
       "[A] couple is not divorced until the judgment becomes
absolute." Ross v. Ross, 385 Mass. 30, 35 (1982).
                                                                    7


divorce nor to an alimony award could nonetheless serve as the

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.    Accordingly, taken as

a whole, the language of the statute leads us to conclude that

the relevant complaint or petition is the one upon which the

judgment of divorce absolute ultimately entered.   See Duff-

Kareores, 474 Mass. at 538 ("If a sensible construction is

available, we shall not construe a statute . . . to produce

absurd results" [quotation omitted]).

     A contrary reading of the statute would be extremely

difficult -- if not nearly impossible -- to apply reliably

because it is common to have multiple complaints and/or

petitions in divorce cases and their timing is both

unpredictable and varied.   Indeed, it is often the case that a

contested divorce case beginning with a § 1B complaint later

becomes an uncontested divorce by the filing of a joint § 1A

petition after the parties have reached a separation agreement.

It is also not unusual to see multiple complaints or petitions

that never end in a divorce judgment; the start-and-stop

procedural history of divorce cases often mirrors the nonlinear

disintegration -- or repair -- of a couple's marriage.

     For these reasons, the legally relevant pleading in this

case for purposes of calculating the "length of the marriage"
                                                                      8


under § 48 was the parties' joint § 1A petition filed in 1994,

more than twenty years after they were married.     As a result,

the husband is not entitled to the alimony reform act's

durational limits on general alimony and his modification

complaint was properly dismissed.

         Finally, we note an irregularity in the language of § 48,

which refers to the "date of service" of a petition.     Joint

petitions for divorce are not required to be served, G. L.

c. 208, § 1A, and there is therefore no "date of service" of a

joint petition.     We do not, however, see this as a fatal flaw in

the statute.     Nor do we conclude that divorces initiated by

joint petitions are outside the statute's reach.     Instead, we

read this merely as a casual turn of phrase, not accounting for

some of the finer points of probate court procedure and its

unique terminology, and one that is easily resolved by using the

date by which all materials required by § 1A to be submitted

with a joint petition have been filed.

     For these reasons, we affirm the dismissal of the husband's

modification complaint. 5

                                      Judgment dated October 6,
                                        2016, affirmed.




     5
         The wife's request for attorney's fees is denied.
