Valaskatgis v. Valaskatgis , 87 Mass. App. Ct. 756 ( 2015 )

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revision and are superseded by the advance sheets and bound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
14-P-1175 Appeals Court
EMANUEL NICHOLAS VALASKATGIS vs. LURYE ELLEN VALASKATGIS.
No. 14-P-1175.
Essex. April 8, 2015. - August 5, 2015.
Present: Cohen, Wolohojian, & Maldonado, JJ.
Divorce and Separation, Division of property. Statute,
Construction.
Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on August 6, 2012.
The case was heard by Randy J. Kaplan, J.
Patricia S. Johnstone for the husband.
Monique Boucher Lamb for the wife.
WOLOHOJIAN, J. The question we consider is whether the
definition of the phrase "length of the marriage" contained in
G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3, which was
adopted as part of the Alimony Reform Act of 2011, applies to
that phrase as it is used in G. L. c. 208, § 34, which pertains
2
to the division of marital assets. We conclude that it does
not.
The facts are uncontested and the legal issue is discrete.
The parties were married on October 5, 1985, and the wife was
served with a complaint for divorce on August 29, 2012. Between
August 29, 2012, and September 30, 2013, the husband earned
approximately $96,000 as a result of working overtime as a
National Grid lineman during a period of unusually severe
weather. On September 30, 2013, the parties entered into a
separation agreement that resolved all issues except how to
divide those earnings. Relying on the § 48 definition of
"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," the husband took the
position that the funds were not part of the marital estate
because they had been earned after service of the divorce
complaint. The wife took the position that the money was part
of the marital estate and that she was entitled to one-half,
that being essentially the division of assets to which the
parties otherwise agreed.1 Judgment of divorce nisi entered that
same day, with the judge reserving until later the issue of the
disputed funds. After subsequent briefing and argument, the
1
Half of the money was placed in escrow pending resolution
of the issue.
3
judge held that the marital assets were to be determined as of
the date of the parties' separation agreement, not the date of
service of the complaint. A supplemental judgment of divorce
nisi entered on November 25, 2013; judgment of divorce absolute
entered on December 30, 2013.
Section 48 of c. 208 is the definitional section of the
Alimony Reform Act of 2011. Among other words and phrases for
which it supplies definitions, it defines the 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. As sweeping as the changes effected by
the Alimony Reform Act were, it does not follow that the
definitions contained in § 48 have general or unlimited
application outside the arena of alimony. Instead, they apply
only when the defined word or phrase is "used in sections 49 to
55 [of chapter 208], inclusive." Ibid. Those sections were
also created by the Alimony Reform Act and concern alimony only.
Nothing in the language of § 48 (or for that matter, in the
language of the Alimony Reform Act more generally) indicates or
suggests that its definitions are to be exported beyond §§ 49
through 55. In other words, the § 48 definition of "length of
the marriage" applies only when the phrase appears in §§ 49
through 55; it does not apply when the phrase appears elsewhere
4
in our laws. The same is true with respect to the other
definitions in § 48.2
It is true, as the husband points out, that the "length of
the marriage" is a factor to be considered under § 34 "[i]n
fixing the nature and value of the property, if any, to be . . .
assigned" to the marital estate.3 G. L. c. 208, § 34, as
appearing in St. 2011, c. 124, § 2. However, in this context
the length of the marriage is not to be measured with reference
to the service of the divorce complaint. The Alimony Reform Act
did not change our rule "that a couple is not divorced until the
judgment becomes absolute." Ross v. Ross, 385 Mass. 30, 35
(1982), citing G. L. c. 208, § 21. Nor did the Alimony Reform
Act constrain the broad discretion a judge is given to "weigh[]
and balance[] . . . the § 34 factors, and the resulting
2
Even without the statutory limitation, one could infer
this result from the nature of the defined terms, all of which
are self-evidently tied to the field of alimony; these terms
are: "[a]limony," "[f]ull retirement age," "[g]eneral term
alimony," "[l]ength of the marriage," "[r]ehabilitative
alimony," "[r]eimbursement alimony," and "[t]ransitional
alimony." G. L. c. 208, § 48, inserted by St. 2011, c. 124,
§ 3.
3
Other mandatory factors to be considered are "the conduct
of the parties during the marriage, the age, health, station,
occupation, amount and sources of income, vocational skills,
employability, estate, liabilities and needs of each of the
parties, the opportunity of each for future acquisition of
capital assets and income, and the amount and duration of
alimony, if any, awarded under sections 48 to 55, inclusive."
G. L. c. 208, § 34, as appearing in St. 2011, c. 124, § 2.
5
equitable division of the parties' marital property." Kittredge
v. Kittredge, 441 Mass. 28, 43 (2004). That discretion
includes, in appropriate circumstances, the ability to include
in the marital estate assets acquired after service of the
divorce complaint, and even after the divorce itself. See,
e.g., Williams v. Massa, 431 Mass. 619, 628 (2000) (assets whose
acquisition is fairly certain after divorce can be included in
marital estate); S.L. v. R.L., 55 Mass. App. Ct. 880, 882-883
(2002) (same).
For these reasons, the allocation and the division of the
marital assets as of the date of the separation agreement,
rather than as of the date of service of the divorce complaint,
was correct.
Supplemental judgment of
divorce affirmed.