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SJC-12102

            JACQUELYN D. SNOW   vs.   WINTHROP E. SNOW.



      Berkshire.      October 6, 2016. - February 9, 2017.

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


       Divorce and Separation, Alimony, Foreign divorce.



     Complaint filed in the Berkshire Division of the Probate
and Family Court Department on August 25, 2014.

    The case was heard by David J. Dacyczyn, J.

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


     Brigid M. Hennessey (Buffy D. Lord also present) for the
husband.
     Lindsay D. DiSantis (David R. Cianflone also present) for
the wife.


    GANTS, C.J.    The wife in this case did not pursue her claim

for alimony during the divorce proceeding, but sought and

obtained an alimony award more than four years after the divorce

judgment.   We conclude that, in such circumstances, the
                                                                    2


durational limit of general term alimony under G. L. c. 208,

§ 49 (b), starts to run on the date that the alimony was

awarded, not on the date of the divorce judgment or on the date

temporary alimony was awarded.   We also conclude that the income

earned from overtime pay must be considered in making an initial

alimony award determination under G. L. c. 208, § 34, regardless

of whether that determination is made before or after the

divorce judgment.   Finally, we conclude that, where a judge

awards alimony under § 34, the judge must specifically address

the issue of health insurance coverage for the recipient spouse

as required by § 34.

     Background.    Jacquelyn D. Snow (wife) and Winthrop E. Snow

(husband) were married in New York in 1991, and separated in

January, 2008.   They have no children.   The husband commenced

the divorce action in the New York Supreme Court in May, 2008,

claiming "constructive abandonment" by the wife.1   The wife was

initially represented by counsel, but her attorney's motion to

withdraw was allowed by the judge in September, 2009.    After the

wife failed to answer the husband's verified complaint, comply

with discovery obligations, and appear for her deposition, the

judge found her in default and entered a judgment for divorce on

July 21, 2010, in accordance with N.Y. Dom. Rel. Law § 211


     1
       In New York, the Supreme Court is the supreme trial court.
See N.Y. Const. art. VI, §§ 3, 7.
                                                                   3


(McKinney 2016) ("A final judgment shall be entered by default

for want of appearance or pleading, . . . only upon competent

oral proof or upon written proof that may be considered on a

motion for summary judgment").   As to alimony (which New York

characterizes as "maintenance"), the judge found that the wife

requested maintenance of $1,000 per week on her statement of net

worth "but did not pursue the claim," so no maintenance was

awarded.

     On August 25, 2014, the wife filed a pro se complaint for

modification of a foreign divorce in the Probate and Family

Court in Massachusetts, where both parties were then domiciled.2

She asked that the final judgment of divorce be modified "with

respect to alimony, which was not addressed."    She explained

that circumstances had changed in that the husband had been

supporting her with payments of $1,000 per week since September,

2013, but he had stopped such payments in June, 2014, and, as a

result, she was homeless and living in her automobile.

     On January 22, 2015, the judge entered a temporary alimony

order awarding the wife $850 per week, commencing on January 23,

2015.    After trial, the judge entered a "Judgment of

Modification" on May 5, 2015, awarding the wife $810 per week in

general term alimony, to commence on May 8, 2015, until December


     2
       After filing the complaint, the wife was represented by
counsel.
                                                                   4


21, 2029, or the death of one of the parties, whichever came

first.   The judge also ordered the husband to secure a life

insurance policy, designating the wife as the beneficiary, in

the amount of $520,000, to be reduced by $40,000 annually during

the alimony payment period.

     In determining the duration of alimony, the judge found

that the length of the marriage was approximately 224 months

(eighteen years and eight months) and that the durational limit

of alimony under G. L. c. 208, § 49 (b) (4), was 179 months

(fourteen years and eleven months).3   The judge ordered alimony

for the full durational limit, commencing on the date of the

first temporary alimony payment.

     In determining the amount of general term alimony, the

judge considered the factors set forth in G. L. c. 208, § 53

(a),4 and determined that alimony should be approximately thirty-


     3
       Under G. L. c. 208, § 49 (b) (4), the durational limit of
general term alimony for a marriage of more than fifteen but
less than or equal to twenty years is no longer than eighty per
cent of the number of months of the marriage.
     4
       General Laws c. 208, § 53 (a), provides: "In determining
the appropriate form of alimony and in setting the amount and
duration of support, a court shall consider: the length of the
marriage; age of the parties; health of the parties; income,
employment and employability of both parties, including
employability through reasonable diligence and additional
training, if necessary; economic and non-economic contribution
of both parties to the marriage; marital lifestyle; ability of
each party to maintain the marital lifestyle; lost economic
opportunity as a result of the marriage; and such other factors
as the court considers relevant and material."
                                                                   5


five per cent of the difference between the husband's and wife's

weekly incomes.   The judge calculated the husband's income as

his then-current base pay; the judge did not include any

overtime in the calculation because he found that overtime

income did not significantly affect the parties' economic status

at "the time of the divorce judgment and throughout the

marriage."

    The judge did not address the issue of health insurance,

but found that the wife was "not eligible for health insurance

through the husband's employer at this time."

    Both parties appealed from the judgment, and we transferred

the case to this court on our own motion.   On appeal, the

husband contends that the judge erred by commencing the

durational limit of alimony on the date of the first temporary

alimony payment (January 23, 2015) rather than on the date of

the New York judgment of divorce (July 21, 2010).     The wife

agrees that the judge erred in his selection of the commencement

date, but she claims that the appropriate commencement date

should have been the date of the award of general term alimony

in the judgment of modification (May 5, 2015).   The wife also

contends that the judge erred in failing to include overtime pay

in his alimony calculation and in failing to make a

determination as to health insurance coverage.
                                                                     6


     Discussion.   Before we address the parties' claims of

error, we must first address a preliminary question that affects

these claims:   was the wife's petition for alimony a complaint

for modification of an alimony judgment under G. L. c. 208,

§ 37, or an initial complaint for alimony under G. L. c. 208,

§ 34?

     There are several relevant differences between the two

forms of complaint.   Where a spouse files an initial complaint

for alimony, before or after the divorce, the judge is required

to consider all the factors identified in G. L. c. 208,

§ 53 (a), in determining the amount and duration of alimony.

G. L. c. 208, § 53 (a).     See George v. George, 476 Mass. 65, 71

(2016), citing Duff-Kareores v. Kareores, 474 Mass. 528, 535

(2016).   The spouse seeking alimony for the first time need not

demonstrate a material change in circumstances.    See Cherrington

v. Cherrington, 404 Mass. 267, 270 (1989); Kinosian v. Kinosian,

351 Mass. 49, 52 (1966); Talbot v. Talbot, 13 Mass. App. Ct.

456, 460 (1982).   Where the issue of alimony was earlier

adjudicated and the judge made the requisite findings based on

the statutory factors, modification of the amount or duration of

an award of general term alimony may occur only where a party is

able to demonstrate "a material change of circumstances

warranting modification."    G. L. c. 208, § 49 (e).   See Buckley

v. Buckley, 42 Mass. App. Ct. 716, 719 (1997) ("where the trial
                                                                  7


court has previously passed on the issue of alimony in the

divorce judgment," any change in alimony must be accomplished

through complaint for modification).

    Here, the wife, before she retained counsel, characterized

her complaint as one seeking modification.   But the title or

form of the complaint is not dispositive; "it is to be treated

in accordance with its essential substance."   Baird v. Baird,

311 Mass. 329, 331 (1942) (petition that had been described as

"for modification" treated as initial complaint for alimony).

Nor is the timing of the complaint conclusive; under § 34, an

initial complaint for alimony may be made either in the divorce

action or "upon a complaint in an action brought at any time

after a divorce."

    The husband contends that the issue of alimony was

adjudicated in the New York divorce action because the wife

initially requested maintenance and the judge awarded no

maintenance.   But the judge made clear that the wife "did not

pursue the claim" for maintenance, and declared that he did not

award maintenance to the wife because she was capable of self-

support and ultimately did "not seek maintenance" from the

husband.   If the request for alimony had been pursued, the judge

in New York, like his counterpart in Massachusetts, would have

had a statutory obligation to consider specific factors in

determining the duration and amount of maintenance.   See N.Y.
                                                                    8


Dom. Rel. Law § 236(6) (McKinney Supp. 2010).    But the judge in

New York did not address any of those factors in denying

maintenance because, at the time of judgment, the wife no longer

sought alimony.   "We do not believe that, if alimony is not

requested during the divorce proceedings, we should

automatically assume that it was not warranted in the

circumstances or hold that each party has waived all opportunity

to demonstrate that it was then warranted."    Cherrington, 404

Mass. at 270 n.6.   Where, as here, the wife did not pursue her

request for maintenance and the judge in New York made no

findings based on the statutory factors in awarding no

maintenance, we conclude that the wife's complaint in

Massachusetts was an initial complaint for alimony rather than a

complaint for modification.5

     1.   Commencement of durational limit.   Under the Alimony

Reform Act of 2011, St. 2011, c. 124 (reform act), "[i]f 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

     5
       Our conclusion would be different if the New York judge
had considered each of the statutory factors and determined
based on the circumstances that no maintenance award was
appropriate. In such a case, the spouse who sought alimony
would have had a full and fair adjudication on the merits of the
claim for alimony, and factual findings would have been made
that a subsequent judge could consider in deciding whether there
has been a material change in circumstances justifying
modification of that alimony judgment.
                                                                    9


marriage" unless the judge makes a written finding that

deviation beyond this time limit is required in the interests of

justice.   G. L. c. 208, § 49 (b) (4).   In Holmes v. Holmes, 467

Mass. 653, 659 (2014), we concluded that the durational limit

starts to run from the date of the award of general term alimony

in the judgment of divorce rather than the date that temporary

alimony was first awarded.   We reasoned that "general term

alimony may commence only on the issuance of the judgment

declaring the termination of the marriage," and that

"[t]emporary alimony is not general term alimony" because it may

commence before the spousal relationship has been legally

terminated.    Id.

    In Holmes, however, alimony was sought in the divorce

complaint and general term alimony was awarded as part of the

divorce judgment; here, the divorce judgment issued before the

initial complaint for alimony was filed and before any alimony

was awarded.   The husband relies on this distinction in claiming

that the durational limit is triggered by the issuance of the

divorce judgment in New York, not the award of temporary or

general term alimony.   We disagree.

    To determine when the Legislature intended the durational

limit of general term alimony to commence, "we look first to the

language of the relevant statute, which is generally the

clearest window into the collective mind of the Legislature."
                                                                   10


Holmes, 467 Mass. at 659.    "'[A] statute must be interpreted

according to the intent of the Legislature ascertained from all

its words construed by the ordinary and approved usage of the

language, considered in connection with the cause of its

enactment, the mischief or imperfection to be remedied and the

main object to be accomplished, to the end that the purpose of

its framers may be effectuated.'"    Rodman v. Rodman, 470 Mass.

539, 541 (2015), quoting Commonwealth v. Figueroa, 464 Mass.

365, 368 (2013).

    Under G. L. c. 208, § 49 (b), "general term alimony shall

continue for not longer than" a fixed percentage of the number

of months of the marriage.    General term alimony cannot

"continue" unless it has previously been awarded.    The plain

language of the statute makes the commencement of the durational

limitation period dependent on the award of general term

alimony.   See Holmes, 467 Mass. at 659.   Thus, until a judge has

awarded general term alimony, the duration of general term

alimony does not begin to run.

    That same plain language dictates that the durational

limits commence on the award of general term alimony, not on the

award of temporary alimony, which, as noted in Holmes, is

separate and distinct from general term alimony.    In determining

that the durational limit commenced on the award of temporary

alimony, the judge relied upon the mistaken premise that the
                                                                   11


wife's action was a complaint for modification rather than an

initial complaint for alimony.     The judge further noted that

temporary relief was warranted because of the wife's "dire

financial predicament," and declared that the husband should be

"given credit against the alimony duration limits."     Even though

the judge erred in concluding that the durational limits

commenced on the award of temporary alimony, nothing bars the

judge on remand from determining that the husband should be

credited for his payment of temporary alimony and that alimony

payments should end on or about the date he declared as the

durational limit (December 21, 2029).     A judge in his or her

discretion, applying the requisite factors in § 53 (a), "may

determine that the appropriate duration of alimony is less than

the presumptive maximum without a written finding that deviation

from the presumptive maximum is required in the interests of

justice" (emphasis in original).     Holmes, 467 Mass. at 658.    See

G. L. c. 208, § 53 (a) (in determining appropriate duration of

alimony, judge may consider other factors that are "relevant and

material").

    2.   Overtime.   In adjudicating an initial complaint for

alimony, the income of both parties is one of the statutory

factors that a judge is required to consider, and the amount of

general term alimony "should not generally exceed the

recipient's need or [thirty] to [thirty-five] per cent of the
                                                                    12


difference between the parties' gross incomes established at the

time of the order being issued."     G. L. c. 208, § 53 (a), (b).

With exceptions not relevant here, "income shall be defined as

set forth in the Massachusetts child support guidelines."     G. L.

c. 208, § 53 (b).    See Zaleski v. Zaleski, 469 Mass. 230, 242-

244 (2014).    Under the guidelines, "income is defined as gross

income from whatever source," and specifically includes

"salaries, wages, [and] overtime."     Child Support Guidelines

§ I(A)(1)(a) (Aug. 1, 2013).      Therefore, in determining an award

of alimony on an initial complaint for alimony, a judge must

consider the parties' income, including overtime.

    However, in adjudicating a complaint for modification of an

alimony judgment, "[i]ncome from . . . overtime work shall be

presumed immaterial to alimony modification if . . . the . . .

overtime began after entry of the initial order."     G. L. c. 208,

§ 54 (b).   Because the judge erroneously characterized the

wife's petition as a complaint for modification, the judge in

determining the alimony award considered only the husband's

overtime income "[a]t the time of the divorce judgment and

throughout the marriage"; he did not consider the husband's

overtime income after the divorce judgment and at the time of

trial on what we now recognize as the wife's initial complaint

for alimony.    This was error.   On remand, the judge must

consider the husband's postdivorce judgment overtime income in
                                                                    13


determining the award of alimony on the wife's initial complaint

for alimony.   Cf. George, 476 Mass. at 70 ("a judge should

evaluate the circumstances of the parties in the here and now").

    3.   Health insurance coverage.   The wife claims that the

judge erred in failing to make a determination as to health

insurance coverage.   Under the New York divorce judgment, the

wife is responsible for securing her own health insurance.    The

Massachusetts judge recognized the practical consequences of

that aspect of the judgment, finding that the wife had not seen

a doctor since 2002 and had not seen a dentist since 1997.

However, apart from noting that the wife is not presently

eligible for health insurance through the husband's employer,

the judge did not address the issue of how the wife would obtain

health insurance coverage, and the judgment did not mention it.

Implicitly, the wife remains responsible for securing her own

health insurance coverage.   We agree with the wife that, where

the judge was adjudicating an initial complaint for alimony, the

judge erred in failing explicitly to make a determination

regarding the wife's health insurance coverage.

    Under § 34, the statute that governs the adjudication of an

initial complaint for alimony:

    "When the court makes an order for alimony on behalf of a
    spouse, said court shall determine whether the obligor
    under such order has health insurance or other health
    coverage available to him through an employer or
    organization or has health insurance or other health
                                                                  14


    coverage available to him at reasonable cost that may be
    extended to cover the spouse for whom support is ordered.
    When said court has determined that the obligor has such
    insurance or coverage available to him, said court shall
    include in the support order a requirement that the obligor
    do one of the following: exercise the option of additional
    coverage in favor of the spouse, obtain coverage for the
    spouse, or reimburse the spouse for the cost of health
    insurance. In no event shall the order for alimony be
    reduced as a result of the obligor's cost for health
    insurance coverage for the spouse."

G. L. c. 208, § 34.

    We describe the legislative evolution of these provisions.

In 1983, as part of his over-all effort to address chronic

shortfalls in the collection of State revenues, Governor Michael

Dukakis proposed legislation that he characterized as a "Revenue

Enforcement and Protection Program."    See J. Brouder & G.

McDowell, Paying for Massachusetts:    Tax Evasion and the

Underground Economy 10 (1983), available at

https://archive.org/details/payingformassach00mass

[https://perma.cc/PQ3J-7AA8] (Brouder & McDowell).    Among the

legislation that emerged from that proposal was St. 1983,

c. 233, § 77, which amended G. L. c. 208, § 34, by adding the

following provision:

    "When the court makes an order for alimony on behalf of a
    spouse, and such spouse is not covered by a private group
    health insurance plan, said court shall determine whether
    the obligor under such order has health insurance on a
    group plan available to him through an employer or
    organization that may be extended to cover the spouse for
    whom support is ordered. When said court has determined
    that the obligor has such insurance, said court shall
    include in the support order a requirement that the obligor
                                                                  15


    exercise the option of additional coverage in favor of such
    spouse."

The Department of Revenue estimated that this provision, along

with ten other sections related to divorce, alimony, and child

support, would save $4 million per year in State expenditures.

Brouder & McDowell, supra at 35.

    Five years later, in 1988, Governor Dukakis proposed

legislation for what he called "the first universal health care

program in the nation; a commitment to assure health security

for all of our citizens by 1992."   Letter from Michael S.

Dukakis to Senate and House of Representatives (Jan. 6, 1988)

(submitted with 1988 House Doc. No. 300).   Among the legislation

that emerged from that over-all effort was St. 1988, c. 23,

§ 67, which amended § 34 by deleting the two sentences added by

St. 1983, c. 233, § 77, and replacing them with the three

sentences regarding health insurance in the current § 34, whose

language was left unchanged by the 2011 reform act.

    The reform act, however, included St. 2011, § 124, § 3, a

new statute which inserted c. 208, § 53, into the General Laws

and which provides in relevant part:

    "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 and rehabilitative
    alimony upon written findings that deviation is necessary.
    Grounds for deviation may include: . . . (3) whether the
    payor spouse is providing health insurance and the cost of
    health insurance for the recipient spouse . . . ."
                                                                 16


G. L. c. 208, § 53 (e).

    From this legislative history, we discern that the

legislative purpose behind St. 1983, c. 233, § 77, was to reduce

the burden on the public arising from divorced spouses without

health insurance.   The substantive scope of St. 1988, c. 23,

§ 67, was broader in keeping with the over-all purpose of that

legislation to move toward universal health coverage at a

reasonable cost.

    We do not attempt in this opinion to harmonize the

potential conflict between § 34, which bars a judge from

reducing the amount of alimony because of the expense incurred

in providing health insurance coverage for the recipient spouse,

and § 53 (e), which expressly allows a judge to deviate from the

amount limits for general term alimony because of the cost

incurred by the payor spouse in providing health care coverage

to the recipient spouse.   Nor do we opine as to whether the

judge's obligation to order the provision of health insurance

coverage under § 34 applies where the recipient spouse is

eligible for such coverage only through the Health Connector

under the Patient Protection and Affordable Care Act, P.L. 111-

148, 124 Stat. 119 (2010), or its Massachusetts counterpart, "An

Act providing access to affordable, quality, accountable health

care," St. 2006, c. 58, both of which were enacted long after

the relevant provisions of § 34.   The parties did not brief
                                                                 17


these issues, and no amicus brief was submitted.   Rather, we

limit our opinion to the claim of error presented by the wife,

and conclude that, where a judge awards alimony under § 34, the

judge must specifically address the issue of health insurance

coverage for the recipient spouse by making the determination

required under § 34, and, where appropriate under the statute,

by including the provision of health insurance coverage within

the judgment.   See Zeh v. Zeh, 35 Mass. App. Ct. 260, 267-268

(1993) ("Given these statutory requirements and the critical

importance and expense of health insurance, a judge's findings

and orders under § 34 expressly should reflect compliance with

the statute and make provision for the requisite coverage or

reimbursement").

    Conclusion.    The case is remanded to the Probate and Family

Court with instructions to reevaluate the alimony judgment in

light of our opinion and enter a new judgment accordingly.

                                   So ordered.
