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SJC-11727

              JOSEPH W. DOKTOR   vs.   DOROTHY A. DOKTOR.



         Berkshire.      October 6, 2014. - January 30, 2015.

 Present:    Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
                             Hines, JJ.


Divorce and Separation, Alimony, Modification of judgment,
     Separation agreement. Statute, Retroactive application.



     Complaint for divorce filed in the Berkshire Division of the
Probate and Family Court Department on March 15, 1991.

     A complaint for modification, filed on June 21, 2013, was heard
by Beth A. Crawford, J.

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


     Peter C. Alessio for the husband.
     Janet H. Pumphrey for the wife.


     DUFFLY, J.   Joseph W. Doktor and Dorothy A. Doktor were divorced

by a judgment nisi that entered in January, 1992, after a marriage

of over twenty years.1    The judgment incorporated a separation


     1
       Because they share a last name, we refer to Joseph W. Doktor
and Dorothy A. Doktor by their first names.
                                                                       2

agreement that, among other things, obligated Joseph to pay alimony

to Dorothy in the weekly amount of $200 until "the death or remarriage

of the Wife."   That provision merged with the judgment.     In June,

2013, Joseph filed a complaint for modification in the Probate and

Family Court, seeking termination of the alimony obligation under

G. L. c. 208, § 49 (f), inserted by St. 2011, c. 124 (alimony reform

act), which provides that "general term alimony orders shall

terminate upon the payor attaining the full retirement age."      He

asserted that he had retired, and was past the normal age of full

retirement as defined by the alimony reform act.    See G. L. c. 208,

§ 48.   Thereafter, he filed an amended complaint for modification,

asserting as a further change in circumstances that his former wife

was no longer in need of alimony.   Following a trial, a Probate and

Family Court judge dismissed the complaint for modification,

concluding that G. L. c. 208, § 49 (f) (retirement provision),

applies prospectively, and therefore that Joseph was required to,

but had not, established that there had been a material change in

circumstances warranting modification.     Joseph appealed, and we

granted his petition for direct appellate review.

     This case again raises a question relative to retroactive

application of the retirement provision of the alimony reform act

to alimony agreements that merged with judgments of divorce entered

prior to March 1, 2012, the effective date of the act.    See Chin v.
                                                                       3

Merriot, ante at      ; Rodman v. Rodman, ante at      .   Joseph argues

that the judge erred in concluding that only those general term

alimony orders that exceed the durational limits set forth in G. L.

c. 208, § 49 (b),2 can be terminated pursuant to provisions of the

alimony reform act.   We have concluded that the Legislature intended

the retirement provision to have prospective application;

consequently, it is not applicable to modification of the alimony

judgment in this case.   Chin v. Merriot, supra.    As to Joseph's claim

that the evidence he presented supports modification of his

obligation to pay alimony based on a material change in

circumstances, we conclude that the judge did not abuse her

discretion in finding that the evidence failed to establish a change

in the parties' circumstances warranting termination of the alimony

obligation.

     Background.   We draw our summary of the facts from the judge's

findings and the stipulations of the parties.       The parties were

married on September 20, 1968.    Joseph was trained as an electrical

     2
       The alimony reform act, St. 2011, c. 124, sets limits on the
period of time that alimony awards may continue, based on the length
of the parties' marriage as defined by the act. See G. L. c. 208,
§ 49 (b) (1)-(4). Following a marriage of more than ten but less
than fifteen years, for example, "general term alimony shall continue
for not longer than [seventy] per cent of the number of months of
the marriage." G. L. c. 208, § 49 (b) (3). Uncodified § 4 (b) of
the alimony reform act states in part: "Existing alimony awards
which exceed the durational limits established in [G. L. c. 208,
§ 49,] shall be modified upon a complaint for modification." St.
2011, c. 124, § 4 (b) (uncodified section).
                                                                      4

engineer and worked for the majority of his career at a major

electronics firm, until his retirement in 2001 at the age of

fifty-seven.     Dorothy earned a degree in medical technology and last

worked in that field in 1973.    During the marriage, Dorothy focused

on raising the parties' two children, who are now adults, and managing

the household.    Joseph was the primary wage earner.   The parties had

been married for more than twenty years when they were divorced by

a judgment of divorce nisi entered on January 10, 1992, which

incorporated the parties' separation agreement.     A merged provision

of that agreement provides that "the Husband shall . . . pay to the

Wife the sum of $200 per week as alimony . . . . Payments . . . shall

cease upon the death or remarriage of the Wife."

     Following a trial on Joseph's complaint for modification, the

judge concluded that the retirement provision does not operate

retroactively, and thus that it does not apply in circumstances such

as these, where the parties' divorce judgment predates the alimony

reform act.    The judge also determined that Dorothy could not meet

her expenses without alimony payments, and that Joseph had the

ability to meet his alimony obligation.

     Discussion.     1.   Prospective application of the retirement

provision.     Joseph challenges the judge's conclusion that § 4 of the

uncodified provisions of the alimony reform act, St. 2011, c. 124,

§ 4 (uncodified section), sets forth the standard of review for
                                                                   5

modification for alimony awards in judgments existing prior to March

1, 2012.3   As we explained in Chin v. Merriot, ante at     , citing

Murphy v. Department of Correction, 429 Mass. 736, 737-738 (1999),

we "construe the language of the uncodified sections of the alimony

reform act together with the codified sections, according to their

plain meaning, unless the reliance on the literal words would produce

an absurd result, or a result contrary to the Legislature's manifest

intent."

     The judge was correct in concluding that the Legislature

distinguished between modifications of newly-enacted durational

limits on alimony, defined in G. L. c. 208, § 49, and other

modifications to the amount of alimony awarded.   The alimony reform

act provides that "existing alimony judgments that exceed the

durational limits under [G. L. c. 208, § 49,] shall be modified upon


     3
         Uncodified § 4 (b) of the alimony reform act provides:

     "[General Laws c. 208, §§ 48-55,] shall not be deemed a material
change of circumstance that warrants modification of the amount of
existing alimony judgments; provided, however, that existing alimony
judgments that exceed the durational limits under [G. L. c. 208,
§ 49,] shall be deemed a material change of circumstance that warrant
modification.

     "Existing alimony awards shall be deemed general term alimony.
Existing alimony awards which exceed the durational limits
established in [G. L. c. 208, § 49,] shall be modified upon a
complaint for modification without additional material change of
circumstance, unless the court finds that deviation from the
durational limits is warranted."
                                                                     6

a complaint for modification without additional material change of

circumstance, unless the court finds that deviation from the

durational limits is warranted."     Uncodified § 4 (b).   In all other

respects, however, G. L. c. 208, §§ 48-55, "shall not be deemed a

material change of circumstance that warrants modification of the

amount of existing alimony judgments."      Uncodified § 4 (b).

     Under common understanding of the phrase, the term "durational

limits" refers to "the length of time something lasts."    Black's Law

Dictionary 613 (10th ed. 2014).    The codified sections of the alimony

reform act, discussing durational limits, clearly refer to the length

of time that alimony is to be paid, and distinguish this period from

the amount of alimony to be paid.4   Under the alimony reform act, the

term "durational limits" does not include an event, such as death,

remarriage, cohabitation, or reaching the age of retirement, that

might trigger termination or reduction of alimony.     The language of

uncodified § 4 (b) is consistent with the language of uncodified

§ 4 (a), which provides that G. L. c. 208, § 49,

          "shall apply prospectively, such that alimony judgments
     entered before March 1, 2012 shall terminate only under such
     judgments, under a subsequent modification or as otherwise

     4
       Thus, G. L. c. 208, § 49 (b), sets forth limitations on the
duration of alimony obligations based on the length of the parties'
marriage. General Laws c. 208, § 49 (b), by its terms, does not apply
to a marriage of more than twenty years. See id. ("if the length
of the marriage is [twenty] years or less, general term alimony shall
terminate no later than a date certain under the following durational
limits").
                                                                     7

     provided for in this act."

     As we explained in Rodman v. Rodman, ante at       , modification

based on the newly-enacted durational limits in G. L. c. 208, § 49,

affords the sole exception to prospective application, and it is

apparent that this is what the Legislature was referencing in

uncodified § 4 (a) when it allowed prospective application "as

otherwise provided for in this act." Uncodified § 5 staggers the

filing dates for complaints for modification asserting that an

existing alimony judgment exceeds the durational limits of G. L.

c. 208, § 49.5     There is a three and one-half year phase-in period


     5
         Uncodified §§ 5 and 6 of the alimony reform act provide:

     "SECTION 5. 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:

     "(1) Payors who were married to the alimony recipient [five]
years or less, may file a modification action on or after March 1,
2013.

     "(2) Payors who were married to the alimony recipient [ten]
years or less, but more than [five] years, may file a modification
action on or after March 1, 2014.

     "(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.

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

     "SECTION 6.    Notwithstanding clauses (1) to (4) of [§] 5 of this
                                                                     8

for filing of such requests.6    However, uncodified § 6 provides an

exception to that phase-in period.    Read together, uncodified §§ 5

and 6 establish that, where a payor who had been married to a recipient

for fewer than twenty years seeks to modify an alimony obligation

based on the durational limits of G. L. c. 208, § 49, and the payor

also will "reach full retirement age on or before March 1, 2015,"

the payor may file a complaint for modification on or after March

1, 2013, "[n]otwithstanding clauses (1) to (4) of [§] 5";

accordingly, such a payor is not restricted to the phased filing dates

provided in uncodified § 5.

     Based on the foregoing, the judge did not err in dismissing the

complaint for modification on the ground that G. L. c. 208, § 49 (f),

is prospective, and therefore provides no basis for modifying the

alimony judgment that entered more than twenty years prior to March

1, 2012.

     2.    Material change in circumstances.   Joseph also challenges

the judge's conclusion that the parties' circumstances do not warrant


act, any payor who has reached full retirement age, as defined in
section [G. L. c. 208, ' 48,] or who will reach full retirement age
on or before March 1, 2015 may file a complaint for modification on
or after March 1, 2013."
     6
       According to the chairs of the alimony task force that drafted
the proposed legislation act that eventually was adopted as the
alimony reform act, this "phase in period" was intended to ease the
additional burden on courts resulting from the sudden influx of
cases. See letter of December 28, 2010, from Chairs of the Alimony
Task Force to Chairs of the Joint Committee on the Judiciary.
                                                                    9

modification of the alimony judgment.    The judge properly "looked

to the statute governing modification of divorce judgments that was

in effect prior to the enactment of the alimony reform act, to inform

her determination whether there had been a material change in the

parties' circumstances."   Chin v. Merriot, ante at      , citing

Pierce v. Pierce, 455 Mass. 286, 293 (2009).

     Because the parties stipulated "that the Husband has the ability

to pay the current alimony award," the judge made no findings

concerning Joseph's income, expenses, or assets.     Indeed, nothing

in the record reflects the amount of his income and expenses, or the

net value of his assets.   Instead, in light of the stipulation, the

judge's findings focus on whether Dorothy's circumstances since the

divorce have changed so materially that she is no longer in need of

alimony.   In determining whether Dorothy is no longer in need of

alimony, the judge considered the parties' marital standard of

living, as she was required to do.   "If a supporting spouse has the

ability to pay, the recipient spouse's need for support is generally

the amount needed to allow that spouse to maintain the lifestyle he

or she enjoyed prior to termination of the marriage.   'The standard

of need is measured by the "station" of the parties -- by what is

required to maintain a standard of living comparable to the one

enjoyed during the marriage.'"    Pierce v. Pierce, supra at 296,

quoting Grubert v. Grubert, 20 Mass. App. Ct. 811, 819 (1985).
                                                                   10

     Joseph does not challenge the following findings of fact.

During the marriage, Joseph was the primary wage earner; his gross

weekly income was $1,428,66.    Dorothy earned no significant income

after the children were born.   At the time of the divorce, her only

income, other than child support, was one hundred dollars per week

from dividends and interest.    The marital home, which the parties

built together using their own labor, was sold at the time of the

divorce.   The house, a four-bedroom, two and one-half bathroom

colonial, is located on four and one-half acres of land.   Joseph used

the proceeds to pay off the mortgage on the house, in which he

continues to live with his current wife; title to the house is now

in her name.7   Dorothy purchased "a modest house," which at the time

of trial had equity in the amount of $109,000.     During their

marriage, Joseph and Dorothy traveled regularly; every year, they

took an extensive vacation with their children, and Dorothy often

accompanied Joseph on business trips.    They drove expensive

automobiles, went to concerts and dined out frequently, and Joseph

often purchased jewelry for Dorothy.

     Following the divorce, Dorothy worked as a limousine driver

earning seventy-nine dollars per week.    By the time of trial on the

complaint for modification, she no longer drove for a company, but


     7
       The record does not reflect the value of the house, its sale
price, or the amount of equity each party received.
                                                                  11

continued to drive for friends, earning between forty dollars and

$46.15 per week.   As additional sources of weekly income, she

received $197 in Social Security benefits, $232.42 in dividends, and

$144.26 from her share of Joseph's pension.    The judge found

Dorothy's adjusted weekly expenses of $634.49 to be "reasonable."

The judge found also that Dorothy traveled occasionally, but that

her travel was not as "lavish" as it had been during the marriage,

and that she used discounts and coupons to meet her other expenses.

Dorothy had received two assets as part of an equal division of

marital assets when the parties divorced.   They had a combined value

of $690,231 at the time of trial on the complaint for modification.8

The judge found that Dorothy "is not able to meet her current

reasonable expenses from income without alimony, unless she invades

her assets."

     Joseph argues that the judge erred in not considering Dorothy's

ability to use the principal of her assets to meet her reasonable

expenses.   "In determining whether to modify a support or alimony

order, a . . . judge must weigh all relevant circumstances";

"[r]esolution of the issue rests in the judge's sound discretion."

     8
       One of these assets was an investment account valued at
$375,839 that generated dividend income in the amount of $232.42 per
week, and the other was an individual retirement account valued at
$314,392. The judge found that Dorothy also had, at some point,
acquired an additional individual retirement account valued at
$30,361; the evidence does not reflect the date on which this asset
was acquired.
                                                                  12

Schuler v. Schuler, 382 Mass. 366, 370 (1981).   On this record, the

judge appears to have "weigh[ed] all relevant circumstances," id.,

and to have reached her determination based on the evidence

presented.    She properly considered the parties' station in life

during the marriage; the nature, source, and value of Dorothy's

assets; her current income and reasonable expenses; and Joseph's

stipulated ability to continue to pay alimony in the amount of $200

per week.    On these facts, the "judge properly could conclude that

the wife should not be required to deplete her assets in order to

maintain herself."    Downey v. Downey, 55 Mass. App. Ct. 812, 818

(2002).

                                     Judgment affirmed.
