Clemence v. Sklenak

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19-P-1618 Appeals Court

GEORGE CLEMENCE vs. KRISTINE SKLENAK.

No. 19-P-1618.

Worcester. July 15, 2020. - October 16, 2020.

Present: Blake, Sacks, & Ditkoff, JJ.

Divorce and Separation, Modification of judgment, Alimony.

Complaint for divorce filed in the Worcester Division of
the Probate and Family Court Department on May 27, 2015.

A complaint for modification, filed on August 17, 2017, was
heard by Janine D. Rivers, J.

Christine D. Anthony for the wife.
Warren M. Yanoff for the husband.

BLAKE, J. In this case, we consider whether the Alimony

Reform Act's (act's) durational limits, set forth in G. L.

c. 208, § 49 (b), began to run on the date of the judgment of

divorce nisi (divorce judgment) or on the date of the

modification judgment, where the divorce judgment provided that

the husband waived past, present, and future alimony, and that
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he could seek future alimony only if an anticipated sale of real

property for a sum certain failed to occur. We conclude that

the divorce judgment provided for an initial "zero dollar

alimony 'award,'" Buckley v. Buckley, 42 Mass. App. Ct. 716, 721

n.5 (1997), for the purposes of the act's durational limits.

Accordingly, here, general term alimony commenced at that time.

Background. After approximately thirteen years of

marriage, George Clemence (husband) and Kristine Sklenak (wife)

were divorced on January 10, 2017, pursuant to the divorce

judgment that incorporated the terms of their separation

agreement (agreement).1 The agreement contained the husband's

express waivers of past, present, and future alimony. The

agreement also provided that the husband's waiver of alimony

represented an agreement that he would receive a

disproportionate share (i.e., sixty percent) of the equity in

the marital home and additional real property, and that the

1 There is no dispute that for purposes of the act's
durational limits the marriage was 141 months. Therefore, the
durational limit of alimony is calculated as seventy percent
thereof, or ninety-eight months. See G. L. c. 208, § 49 (b) (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 percent] of the number of months of the
marriage"). In addition, based on the length of the marriage,
only general term and rehabilitative alimony were applicable
because reimbursement and transitional alimony apply to
marriages of not more than five years. See G. L. c. 208, § 48.
Neither party contends that it was error to award general term
alimony.
3

"condition" for his waiver of alimony was the sale of the

marital home to an unrelated party for $725,000. The agreement

provided that should the sale not occur as contemplated, the

parties would list the property for sale, divide the proceeds

equally, and the husband would have the right to file a

complaint for modification seeking alimony from the wife as

there would be no disproportionate division of this asset.

These alimony provisions were approved by a judge of the Probate

and Family Court (divorce judge) and were merged into the

divorce judgment.

The parties were unable to sell the marital home as

planned; instead, it was sold to another buyer for $433,000. On

August 17, 2017, the husband filed a complaint for modification

seeking an order of alimony. On November 9, 2017, the divorce

judge issued an order requiring the wife to pay $200 per week in

temporary alimony to the husband during the pendency of the

modification proceedings. After a trial at which both parties

testified, a different judge (modification judge) entered the

modification judgment, along with findings of fact and a

rationale, ordering the wife to pay general term alimony to the

husband of $200 per week commencing on August 24, 2018. The

modification judgment provided that alimony would continue,

unless otherwise modified, terminated, or suspended, until the

first to occur of the death of either party, the husband's
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remarriage, the husband's cohabitation, or October 8, 2026

(approximately ninety-eight months from the date of the

modification judgment), all pursuant to G. L. c. 208, §§ 48-55.

This appeal followed.

Discussion. "The relevant change [to the Commonwealth's

alimony laws] on appeal is the [act's] creation of durational

limits -- or presumptive termination dates -- for alimony

obligations arising from marriages lasting fewer than twenty

years." Van Arsdale v. Van Arsdale, 477 Mass. 218, 219 (2017).

The presumptive durational period begins to run on the date of

the initial general term alimony award, which is usually the

date of the divorce judgment, see Holmes v. Holmes, 467 Mass.

653, 659-660 (2014), or a later date if alimony is not addressed

in the divorce judgment. See Snow v. Snow, 476 Mass. 425, 425,

428-430 (2017). Here, the modification judge treated the

modification judgment as the initial general term alimony award,

and determined that the ninety-eight-month durational limit

began to run at the time of the modification.2 The wife claims

that this was error because alimony was first addressed in the

2 General Laws c. 208, § 49 (e), provides: "Unless the
payor and recipient agree otherwise, general term alimony may be
modified in duration or amount upon a material change of
circumstances warranting modification. Modification may be
permanent, indefinite or for a finite duration, as may be
appropriate."
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divorce judgment, and therefore the durational limit should have

commenced at the time of the divorce. We agree.

"[T]he commencement of the durational limitation period

[is] dependent on the award of general term alimony . . . .

Thus, until a judge has awarded general term alimony, the

duration of general term alimony does not begin to run." Snow,

476 Mass. at 430. "In cases where alimony was not contemplated

in the judgment of divorce, an award of alimony thereafter is

treated as an initial award of alimony commencing on that date,

not an award that relates back in time to the date of the

divorce." Flor v. Flor, 92 Mass. App. Ct. 360, 365 (2017). See

Snow, supra at 429 (where "the wife did not pursue her request

for maintenance [in the divorce proceedings] and the judge . . .

made no findings based on the statutory factors in awarding no

maintenance [in the divorce judgment,]" wife's postdivorce

complaint seeking alimony "was an initial complaint for alimony

rather than a complaint for modification"). However, where the

separation agreement was incorporated and merged into the

divorce judgment, and contained express waivers of past and

present alimony, and the reservation of the right to seek future

alimony, the divorce judgment was the initial alimony award, and

any subsequent request for alimony should be treated as a

complaint for modification. Buckley, 42 Mass. App. Ct. at 720-

722. See Flor, supra at 365-366.
6

Here, as in Buckley, 42 Mass. App. Ct. at 717, the parties'

agreement contained express waivers of past and present alimony.

For the purposes of the act's durational limits, these waivers

are tantamount to a "zero dollar alimony 'award.'" Id. at 721

n.5 (distinguishing "from [other cases] where there is neither

'provision' for, 'award' of, nor 'mention' of alimony in the

divorce decree"). "By virtue of their agreement, [the parties]

intended and reached a full and final settlement of their

financial affairs." Id. at 720. See Flor, 92 Mass. App. Ct. at

365-366. The divorce judge found that the agreement was fair

and reasonable, and as relevant here, made proper provisions for

alimony and the disposition of marital property. This is

uncontroverted evidence that the alimony provisions set forth in

the separation agreement contained an initial award of general

term alimony for purposes of the act's durational limits.3 See

3 Although the parties did not include in the record
appendix the trial transcripts or copies of their financial
statements, see Rule 401(a) of the Supplemental Rules of the
Probate Court (2012), the modification judge found that the
"husband's weekly income and expenses . . . have not changed
since the divorce." From this, we infer that the husband's need
for alimony on the date of the divorce judgment was similar, if
not the same, as it was when he filed the complaint for
modification. Notwithstanding, the parties, both represented by
counsel, negotiated the agreement in which the husband waived
past, present, and future alimony. The parties conditioned the
husband's ability to seek future alimony on the failure of the
anticipated sale of the marital home. We need not speculate
what the result would be here if the husband's waiver of present
alimony had been expressly conditioned on the completion of the
sale.
7

Buckley, supra. Cf. Snow, 476 Mass. at 429 n.5 (divorce

judgment ordering no alimony would have constituted initial

alimony award "if the [divorce] judge had considered each of the

statutory factors and determined based on the circumstances that

no maintenance award was appropriate," because "the spouse who

sought alimony would have had a full and fair adjudication on

the merits of the claim for alimony").

Moreover, the husband "condition[ed]" his waiver of future

alimony on the marital home selling for a sum certain, which is

further evidence that the agreement contained an initial alimony

award of zero dollars. This "condition" is the functional

equivalent of a stipulation to a material and substantial change

in circumstances. More specifically, if the marital home had

sold at the price contemplated in the agreement, the parties

agreed that there would be no alimony because the husband would

receive a greater share of the sale proceeds. Embedded in this

agreement is the implicit conclusion that if the sale did not

occur as contemplated, the husband would likely have been

entitled to alimony based on the disparity in the parties'

incomes, the husband's need, and the wife's ability to pay

alimony. When the sale fell through, the husband did not

receive a disproportionate share of the proceeds and, therefore,

he was entitled to request a modification of the alimony

provisions set forth in the agreement. In essence, the parties
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agreed that the failure of the contemplated sale constituted a

material change in circumstances warranting modification of the

initial zero dollar alimony award. See G. L. c. 208, § 49 (e).

See also G. L. c. 208, § 37. Indeed, the modification judge

found that the husband met his burden of demonstrating a

material change in circumstances,4 which is something that a

"spouse seeking alimony for the first time need not

demonstrate." Snow, 476 Mass. at 428. Accordingly, the

parties' agreement to treat the failure of the contemplated sale

as a material change in circumstances -- which they bargained

for and the divorce judge approved -- is further evidence that

the divorce judgment contained an initial award of general term

alimony for purposes of starting the durational limit clock.

Conclusion. Section 2 (e) of the modification judgment is

struck and shall be replaced with March 10, 2025.5 As so

modified, the modification judgment is affirmed. The parties'

requests for attorney's fees are denied.

4 The modification judge that found the husband "has
demonstrated that there is a material change in circumstances in
that the drastic reduction in the sale price of the marital home
causes [his] continued dependence on the Wife." This finding is
at odds with the modification judge's ultimate conclusion that
the modification judgment was the initial award, as a change of
circumstances is irrelevant to establishing an initial alimony
award.

5 The termination date is based on a presumptive durational
limit of ninety-eight months.
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So ordered.