judge retains discretion under § 48 for period of premarital cohabitation
How later courts described this case
- judge retains discretion under § 48 for period of premarital cohabitation
Written by the judges who cited it.
The opinion
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SJC-11975
ELLEN DUFF-KAREORES vs. CHRISTOPHER KAREORES.
Essex. February 10, 2016. - June 15, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Divorce and Separation, Alimony, Division of property.
Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on June 19, 2013.
The case was heard by Peter C. DiGangi, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
James P. Hall (Jaclyn Martin with him) for Christopher
Kareores.
John Foskett for Ellen Duff-Kareores.
DUFFLY, J. Ellen Duff-Kareores and Christopher Kareores
were first married to each other in May, 1995; two children were
born of the marriage before the parties divorced in 2004. The
parties' divorce agreement, which was incorporated in the
divorce judgment, obligated Christopher to, among other things,
2
pay Ellen alimony in the amount of $7,600 per month. Beginning
in 2007, Christopher resumed living with Ellen and the children
in what had been the marital residence. In December, 2012, the
parties remarried. In June, 2013, Ellen filed a complaint for
divorce on the ground of an irretrievable breakdown of the
marriage and served the complaint on Christopher the following
month. Following trial on that complaint, a judge of the
Probate and Family Court concluded that, under the Alimony
Reform Act of 2011, St. 2011, c. 124 (alimony reform act or
act), the length of the parties' marriage for purposes of
calculating the durational limits of a general term alimony
award to Ellen was eighteen years, the period from the date of
the parties' first marriage through the date that Christopher
was served with the complaint in the second divorce.
Christopher appealed, and we transferred the case to this court
on our own motion.
This case requires us to decide whether the judge correctly
construed G. L. c. 208, § 48, which provides that "the court may
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." We conclude that
the judge's findings do not support a determination that the
parties had an economic marital partnership, within the meaning
of G. L. c. 208, § 48, during the period following the service
3
on the husband of the divorce complaint in the first marriage in
April, 2003, until the parties began cohabiting in May, 2007.
The findings do, however, support a determination that the
length of the marriage includes the period during which the
parties were cohabiting before they remarried, and the period of
the parties' first marriage. Thus, the over-all length of the
marriage here should be calculated by adding together the period
of the first marriage, the period of cohabitation beginning in
May, 2007, and the period of the second marriage. Accordingly,
the matter must be remanded to the Probate and Family Court for
recalculation of the amount and duration of alimony. Because of
the change in the length of the parties' marriage, in the course
of the proceedings on remand, Christopher also may seek
reconsideration of the judge's orders as to property division
and allocation of the children's education expenses.
Background. We summarize the judge's findings of fact,
supplemented by undisputed facts in the record and reserving
certain facts for later discussion. See Pierce v. Pierce, 455
Mass. 286, 288 (2009). The parties first married on May 20,
1995. Ellen was employed full time as a registered nurse, and
Christopher was working as a medical resident. Their first
child, a daughter, was born in 1997; their son was born in 2001.
Soon after the birth of their first child, at around the time
that Christopher completed his medical training and began
4
employment as a fully qualified physician, Ellen left her
position as a registered nurse to attend to raising their
daughter and running the household. Although she worked part
time in the years that followed, Ellen did not return to full-
time employment.
In March, 2003, Ellen served Christopher with a divorce
complaint, and in 2004, a divorce judgment nisi issued that
incorporated the parties' separation agreement. The agreement
included merged provisions relating to their minor children,
alimony, and life and medical insurance, as well as provisions
related to property division that did not merge. The agreement
required Christopher to pay alimony to Ellen in the amount of
$7,600 per month.1 As provided under the terms of the agreement,
the parties refinanced their mortgage so that Ellen could
purchase Christopher's interest in the family home, and she
continued to live there with the children.
In May, 2007, Christopher moved back into the family home
and the parties began a period of cohabitation, which continued
until they were remarried in December, 2012. The judge found
that, after Christopher returned to living in the family home,
"the parties functioned exactly as they had during their
1
Under the terms of the agreement, Ellen had primary
physical custody of the children. Because the agreement does
not contain a separate provision for child support, we presume
that the amount of the alimony award includes payments for the
support of the children.
5
previous marriage," with Christopher acting as the primary wage
earner and Ellen as the primary caretaker of the children and
the home. During this period, and throughout the second
marriage, Christopher continued to pay Ellen a monthly amount
that was consistent with the alimony order under the first
divorce judgment. Six weeks after the second marriage, at
Ellen's request, Christopher moved out of the family residence.
On July 18, 2013, Ellen served Christopher with a complaint for
divorce.
The judge who conducted the second divorce trial concluded
that, throughout their eighteen-year relationship, the parties
enjoyed an upper-middle income lifestyle. At the time of trial
on the second divorce, Ellen was fifty-three years old and
Christopher was fifty-one. Christopher was in good health and
Ellen suffered from fibromyalgia and sarcoidosis.2 The judge
found that Ellen "testified credibly that these [illnesses
cause] symptoms [that] affect her work as a registered nurse."
She worked part time and earned weekly income in the amount of
$450. Christopher was employed full time as an emergency room
physician and held an additional part-time position at another
2
The judge found that Ellen "was diagnosed with sarcoidosis
seventeen years ago," which causes her to suffer from "shortness
of breath, cough, fatigue, myalgia, and arthralgia." When her
symptoms flair up, she "must undergo treatments, including
chemotherapy, medication and physical therapy." She also
suffers from fibromyalgia, which causes muscle pain that can be
"debilitating."
6
hospital, earning a total gross weekly income of $7,867.48.3 The
judge found that Christopher had the opportunity to acquire
future assets and income through his employment, while Ellen's
opportunities were limited because of "significant health
issues," having left full-time work to raise the children, and
having bypassed employment opportunities to focus on the
children in the period of the parties' cohabitation between the
two marriages.
The judge found that the length of the second marriage was
six months. However, the judge found that
"the parties' economic marital partnership began
during their cohabitation period prior to the marriage.
The parties began living together in May, 2007 (6.17
years). Additionally, the parties were married for 7.83
years prior to their first divorce. The parties have been
in a relationship, with only a brief period of separation,
for eighteen years (i.e. the number of years between the
parties' first marriage and the date of service on the
current Complaint for Divorce)."
The judge concluded that "[b]oth parties contributed to their
financial success throughout the course of their relationship,"
but Ellen contributed "more" because she "worked part-time and
was, for the most part, fully responsible for the child care and
homemaking responsibilities."4
3
The judge determined that Christopher did not disclose on
his financial statement the sum of $9,180.00 that he had
contributed to a retirement account, or that he had received an
additional $44,440.00 in profit sharing from his medical
practice.
4
The judge found that Ellen was responsible for the "vast
7
A judgment nisi was entered on the parties' second divorce
on December 5, 2014. Under the terms of the judgment,
Christopher was ordered to pay Ellen weekly general term alimony
in the amount of $1,106 for a period of fourteen years. In
making this determination, the judge considered the required
factors under G. L. c. 208, § 53 (a), including "the length of
the marriage; age of the parties; health of the parties; income,
employment and employability of the parties . . . ; economic and
non-economic contribution of both parties to the marriage;
marital lifestyle; . . . [and] lost economic opportunity as a
result of the marriage." The judge also ordered Christopher to
make weekly child support payments to Ellen in the amount of
$917. Concerning education expenses for the two children, the
judge ordered Christopher to continue paying private secondary
school expenses for the younger child.5 The older child was a
senior in high school when the judgment entered; the judge
ordered Christopher to pay eighty per cent and Ellen to pay
majority of the cleaning, shopping, cooking, and laundry," and
was "primarily responsible for the child care responsibilities,"
including, among other things, preparing meals, bathing, and
transporting the children to and from school.
5
The judge found that, "[b]y agreement of the parties, the
children have been raised Catholic and have always attended
Catholic private school. The prior divorce judgment provides
that the children will attend private school if [Christopher]
pays the cost, an acknowledgment that [Ellen] was not in a
financial position to contribute to same."
8
twenty per cent of the costs of that child's college education.6
As to the only substantial marital asset,7 Christopher's
retirement accounts, the judge awarded fifty-five per cent to
Ellen because she "contributed more to the financial success of
the parties throughout their relationship." In making this
division of the marital property, the judge stated that he had
considered, among the other factors listed in G. L. c. 208,
§ 34, the length of the marriage and the alimony award.
Discussion. Christopher contends that the judge exceeded
his authority in the amount and duration of alimony awarded, in
the division of the marital assets, and in the allocation of the
children's educational expenses. The thrust of Christopher's
argument is that the judge's erroneous calculation of the length
of the parties' marriage, based on their economic marital
relationship, "clearly controlled" all of the judge's findings.
Because the parties' second marriage lasted only six
months, the question we confront is whether the judge properly
6
No provision was made for the payment of the younger
child's college expenses. See Passemato v. Passemato, 427 Mass.
52, 54 (1998) ("as a general rule, support orders regarding the
future payment of post-high school educational costs are
premature and should not be made").
7
Neither party disputes the judge's finding that
Christopher's retirement accounts are the only substantial
marital asset. The record reflects that Ellen owns the marital
home, which has a fair market value of $435,000, but at the time
of the parties' second divorce, was subject to a first and a
second mortgage, together totaling $418,200.
9
included within the "length of the marriage" all or any portion
of the following: the period of approximately five and one-half
years during which the parties lived together after the first
marriage ended and before they remarried; the slightly more than
four-year period that they were neither married to each other
nor living together; and the approximately eight-year period of
their first marriage.8 In making this determination, we consider
whether the judge's calculation of the parties "length of the
marriage" is consistent with the meaning of that term under the
alimony reform act. This involves a question of statutory
interpretation, which we review de novo. See Chin v. Merriot,
470 Mass. 527, 531 (2015). "Although we look first to the plain
language of the provision at issue to ascertain the intent to
the Legislature, we consider also other sections of the statute,
and examine the pertinent language in the context of the entire
statute. Id. at 532. See Holmes v. Holmes, 467 Mass. 653, 659
(2014) ("we look first to the language of the relevant statute,
which is generally the clearest window into the collective mind
of the Legislature").
General Laws c. 208, § 48, enacted as part of the alimony
reform act, defines the "[l]ength 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
8
Ellen served Christopher with a complaint for divorce in
the first marriage on March 12, 2003.
10
or separate support duly filed in a court . . . ; provided,
however, that the court may 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."
The terms "economic marital partnership" and "cohabitation" are
not defined in G. L. c. 208, § 48, nor anywhere else within the
alimony reform act. But a related provision addressing general
term alimony9 states that general term alimony "shall be
suspended, reduced or terminated upon the cohabitation of the
recipient spouse when the payor shows that the recipient spouse
has maintained a common household . . . with another person for
a continuous period of at least [three] months." G. L. c. 208,
§ 49 (d). See Hartford Ins. Co. v. Hertz Corp., 410 Mass. 279,
284 (1991) (in construing statutory term, "we may also look to
relevant provisions of other parts of the statute"). In order
to ascertain whether a former spouse who is cohabiting with
another is maintaining a "common household," a judge may
consider any of the following factors:
"(i) oral or written statements or representations made to
third parties regarding the relationship of the persons;
"(ii) the economic interdependence of the couple or
economic dependence of [one] person on the other;
"(iii) the persons engaging in conduct and collaborative
roles in furtherance of their life together;
9
"'General term alimony' . . . [is] the periodic payment of
support to a recipient spouse who is economically dependent."
G. L. c. 208, § 48.
11
"(iv) the benefit in the life of either or both of the
persons from their relationship;
"(v) the community reputation of the persons as a couple;
or
"(vi) other relevant and material factors."
G. L. c. 208, § 49 (d) (1).
Viewing the statute as a whole, we conclude that the
Legislature intended to use the terms cohabitation, economic
marital partnership, and common household to describe a
relationship that, if established, would affect a court order
for alimony, either by increasing the amount and duration of
alimony ordered or by reducing, suspending, or eliminating the
award. As explained, G. L. c. 208, § 48, permits a judge to
increase the "length of the marriage" based on a period of
cohabitation prior to a marriage where there is evidence of an
"economic marital partnership," which in turn permits the judge
to increase the duration of an alimony award. See G. L. c. 208,
§ 49 (b). See also G. L. c. 208, § 53 (a) (governing both
amount and duration of alimony and requiring consideration of
length of marriage among other factors). General Laws c. 208,
§ 49 (d), permits a judge to suspend, reduce, or terminate a
general alimony award based on a recipient spouse's period of
cohabitation with another where the recipient spouse maintains a
"common household" for at least three months. The definition
12
includes the sharing of a primary residence with the other
person, as well as the factors set forth in G. L. c. 208,
§ 49 (d) (1) (i)-(vi). What each of these provisions has in
common is a definition of a relationship that resembles, but is
not equivalent to, a legal marriage. Cf. Charron v. Amaral, 451
Mass. 767, 770-771 (2008) (distinguishing between cohabitation
and legal marriage). The existence of such a relationship has
an effect on the spousal obligation of alimony.
Given the use of the term "cohabitation" in each of these
provisions, and their similar purpose to permit an adjustment of
the duration or amount of an alimony award, we conclude that the
Legislature intended that it is only where parties share a
common household, and are engaged in an economic marital
partnership, that a judge has discretion to increase the length
of a marriage, or to suspend, reduce, or terminate a general
alimony award. We therefore conclude that a judge must consider
the factors set forth in G. L. c. 208, § 49 (d) (1), which are
determinative of whether the parties share a "common household,"
in order to ascertain whether the parties were participating in
an economic marital partnership. These factors, which include a
consideration of the parties' relationship as a couple and
"economic interdependence of the couple or economic dependence
of [one] person on the other," must be considered to ascertain
whether the parties were engaged in an economic marital
13
partnership for the purpose of the alimony reform act.
Further, the act also establishes presumptive termination
dates for general term alimony, which are calculated based on
the length of the marriage.10 A judge determining the
appropriate duration of alimony payments may make a deviation
beyond the time limits only if "the judge makes a written
finding that deviation . . . is required in the interest of
justice." Holmes v. Holmes, supra at 654. See G. L. c. 208,
§ 49 (b). Although a "judge has broad discretion when awarding
alimony under the [alimony reform act],"11 see Zaleski v.
10
The presumptive time limits for payment of general term
alimony for a marriage of twenty years or less 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 of 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] percent 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."
11
The Alimony Reform Act of 2011 did not alter the broad
discretion historically accorded to judges in making awards of
alimony. See Zaleski v. Zaleski, 469 Mass. 230, 235 n.13 (2014)
14
Zaleski, 469 Mass. 230, 235 (2014), the judge must consider all
relevant, statutorily specified factors, such as those set forth
in G. L. c. 208, §§ 49 (d) and 53 (a). See Zaleski v. Zaleski,
supra at 235-236.
Here, the judge concluded that the length of the marriage
was eighteen years, and awarded general term alimony to Ellen
for a durational period of fourteen years, a period consistent
with a marriage of between fifteen to twenty years. See G. L.
c. 208, § 49 (b). In determining that the length of the
parties' marriage was eighteen years, the judge plainly rejected
Christopher's assertion that he was nothing more than "a renter
of sorts" during the period of the parties' cohabitation.
The testimony before the judge in this regard included
statements of both parties that, during the period of
cohabitation, they presented to their community as an "intact
family"; Ellen called Christopher her "husband" and Christopher
conceded that he "may" have called Ellen his "wife"; they gave
each other rings to wear in place of their wedding bands;
Christopher was able to see and have daily interaction with his
children; he could participate in their activities within and
outside of the home; and the family planned and took vacations
together. Christopher also testified that, during the period of
cohabitation, he and Ellen engaged in a "joint effort . . . to
(discussing legislative history).
15
figure out the children's schedule," although at times his work
schedule took priority because he was the primary breadwinner.
During this period, Christopher continued to pay Ellen $7,600
per month, the amount of the award under the first judgment, and
Ellen paid the majority of the expenses of running the parties'
combined household. At some point, around 2010, Christopher
paid for certain improvements to the family home and began
contributing towards the utilities. He did not pay an
additional amount to Ellen designated as rent. The parties
maintained separate bank accounts during both the period of
cohabitation and their second marriage.
Based on the above, the judge concluded that, during the
period of cohabitation, "the parties functioned exactly as they
had during their previous marriage," with Christopher in the
role of "the primary wage earner" and Ellen in the role of "the
primary homemaker and caretaker for the children." The judge's
findings of fact support his conclusion, based on the statutory
factors, that the parties were engaged in an economic marital
partnership and maintained a common household during their
period of cohabitation. See G. L. c. 208, § 49 (d) (1) (i)-
(vi). The parties presented themselves to third parties as a
traditional family with a husband, wife, and two children; they
were economically interdependent, with Christopher earning the
majority of the income and Ellen primarily taking care of the
16
household and caring for the children; and they planned their
lives together, in terms of both daily schedules and annual
vacations. The judge did not abuse his discretion in
determining that the parties' relationship during the period of
cohabitation before their second marriage was an economic
marital partnership, rather than a landlord-tenant relationship.
Christopher argues that the judge's finding that an
economic marital partnership existed was erroneous because
Christopher continued to pay alimony to Ellen during the period
of cohabitation, as required by the terms of the first divorce
judgment. He contends, in essence, that an economic marital
partnership cannot be a product of a court order. This argument
misses the mark. A judgment requiring payment of alimony does
not contemplate a shared life; rather, alimony payments make it
possible for a spouse to support himself or herself and the
parties' children in a lifestyle similar to that which had been
enjoyed by the family during the marriage, even though the
spouse who had been the breadwinner is no longer part of the
household. See Pierce v. Pierce, 455 Mass. 286, 296 (2009) ("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").
While it often may be the case that there is some measure
17
of mutual dependence and benefit enjoyed by formerly married
parties where one party is paying the other court-ordered
alimony, that alone would not convert court-ordered payments
into an economic marital partnership. But the situation is
different where a party continues to make such payments after he
or she returns to live in the former marital home with the
former spouse and enjoys the benefits of daily family
interaction and connection, and the parties present themselves
to the community as married, as was the case here. We conclude
that there was no error in the judge's decision to include in
the length of the parties' marriage the approximately five and
one-half years that the parties lived together and maintained a
common household. This conclusion is supported by the judge's
findings that the parties both "contributed to the economic
marital partnership" during that time period. The determination
also is consistent with the Legislature's manifest intent to
include within the length of a marriage that period of
cohabitation during which the parties are engaged in an economic
marital partnership. See G. L. c. 208, § 48 ("the court may
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,
§ 53 (a) (requiring consideration of, among other things, length
of marriage, in determining appropriate form, amount, and
18
duration of alimony).
We turn to the length of the parties' first marriage. The
alimony reform act does not provide direct guidance on the
calculation to be used where two individuals previously were
married to each other, subsequently were divorced, remarried,
and then were divorced a second time.12 As discussed above,
however, the act expressly provides a judge with discretion to
increase the length of a marriage for purposes of calculation of
alimony where there is evidence that the parties' economic
marital partnership began prior to the marriage during a period
of the parties' cohabitation. See G. L. c. 208, § 48. Nothing
in the act requires that the period of cohabitation that results
in a "legal marriage" and "the parties' economic marital
partnership" must directly precede the date of the marriage.
Id. The Legislature could not have intended to exclude from the
length-of-a-marriage calculation a previous period of time
during which the parties were legally married (and thus
presumably engaged in an economic marital partnership and
12
We note that G. L. c. 208, § 49 (d) (2), provides that if
alimony is reduced or suspended as a result of a recipient
spouse maintaining a common household with another person,
"alimony . . . may be reinstated upon termination of the
recipient's common household relationship." The next section
provides: "Nothing in this section shall be construed to permit
alimony reinstatement after the recipient's remarriage, except
by the parties' express written agreement." G. L. c. 208,
§ 49 (e). It appears from their context that these provisions
do not implicate remarriage or cohabitation of the recipient and
payor spouse.
19
maintaining a common household), while including a period of
cohabitation that involves participation in an economic marital
partnership. Such a result would be absurd. See Flemings v.
Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376
(2000) ("If a sensible construction is available, we shall not
construe a statute . . . to produce absurd results").
Therefore, we conclude that the judge properly included the
length of the first marriage in the calculation of the over-all
length of the parties' marriage.13
Nothing in the act, however, supports a conclusion that a
judge may include, as part of the over-all length of marriage,
the time during which the parties neither were legally married
nor engaged in an economic marital partnership. Here, the
judge's only stated rationale for including in the over-all
length of the marriage the period between the parties' first
13
We reject Christopher's argument that a provision of the
parties' 2004 separation agreement, whereby both parties agreed
to "waive, renounce and relinquish . . . all and every interest
of any kind of character which either may now have or may
hereafter acquire in or to any real or personal property of the
other, whether now owned or hereafter acquired by either,"
prevents the judge from including the time of the first marriage
as part of the length of marriage. The 2004 separation
agreement resolved claims arising out of the first marriage and
divorce; it did not, and could not, contemplate claims arising
from subsequent events, such as their second marriage and a
second divorce. For the purpose of the second divorce, which
occurred after the passage of the alimony reform act, the terms
of the statute control the length of marriage. See Chin v.
Merriot, 470 Mass. 527, 534 (2015) (discussing prospective
application of alimony reform act).
20
divorce and the date they began cohabiting was the observation
that "[t]he parties have been in a relationship, with only a
brief period of separation, for eighteen years." Even accepting
the judge's description of this fifty-month period as "brief"
within the context of a relationship spanning eighteen years, it
was improper to extend the length of the marriage by this period
in the absence of any evidence that the parties were
participating in an economic marital partnership during that
time.
There was no evidence introduced that the parties'
relationship during this period was different from any other two
individuals who previously had been married and thereafter
shared custody of their children, with one former spouse
obligated to make family support payments to the other.
Immediately following the first divorce, unlike their subsequent
period of cohabitation, the parties did not share a primary
residence, did not present themselves to their community or
otherwise refer to each other as husband and wife, and did not
plan their daily activities and schedules together. Merely
paying court-ordered support, and having amicable arrangements
for care of the children, does not, without more, define an
economic marital partnership. We conclude that the judge erred
in including this period as part of his calculation of the
length of the marriage. For purposes of calculating alimony in
21
this case, the length of the parties' marriage does not include
the time from the date of service of the divorce complaint in
the first marriage in April, 2003, until the period of
cohabitation began in May, 2007.
Ellen contends that, even if this period is excluded, the
alimony award nonetheless may be affirmed because the judge was
permitted to make a deviation from the presumptive duration of,
as well as the presumptive limits on the amount of, a general
term alimony award. See G. L. c. 208, § 53 (e). We recognize
that the act authorizes a judge to make deviations in setting an
alimony award based on factors including age, health status,
inability to work full time in the future, and "any other factor
that the court deems relevant and material." See id. The act,
however, contemplates a deviation in the duration and amount of
the alimony award, not a deviation in the calculation of the
length of the marriage. See id. Although the length of a
marriage is the central factor in establishing the limits of an
alimony award, it remains a distinct concept that must be
calculated independently from the duration or amount of alimony.
See G. L. c. 208, § 48. Other than including a period of
cohabitation during which the parties maintained an economic
marital partnership, the alimony reform act affords no
discretion to a judge in calculating the length of a marriage
based on the factors listed in G. L. c. 208, § 53 (e), which
22
apply only to the amount and duration of alimony payments.
Moreover, while a judge has discretion to deviate from a
presumptive alimony award, such a deviation must be made "upon
written findings that deviation is necessary." G. L. c. 208,
§ 53 (e). See G. L. c. 208, § 49 (b); Holmes v. Holmes, 467
Mass. 653, 658 (2014). Here, the judge made no written findings
in support of a deviation, and did not state that he was
adopting such a deviation.
Conclusion. Because the alimony award was based on an
incorrect calculation of the length of the parties' marriage,
the judgment establishing the amount and duration of alimony is
vacated. The matter is remanded to the Probate and Family Court
for further proceedings consistent with this opinion. On
remand, in light of the revised length of marriage, Christopher
may seek reconsideration of the division of marital property and
the allocation of educational expenses for the children.
So ordered.