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SJC-12223
SUSAN VAN ARSDALE vs. WILLIAM VAN ARSDALE.
Essex. March 6, 2017. - May 31, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.
Divorce and Separation, Alimony, Modification of judgment. Due
Process of Law, Retroactive application of
statute. Statute, Retroactive application.
Complaint for divorce filed in the Essex Division of the
Probate and Family Court Department on October 30, 1996.
A complaint for modification, filed on September 1, 2015,
was heard by Mary Anne Sahagian, J.
The Supreme Judicial Court granted an application for
direct appellate review.
David E. Cherny (Erin M. Shapiro also present) for the
wife.
Paul M. Kane (Allison R. McNulty also present) for the
husband.
LOWY, J. This appeal raises the constitutionality of
applying the durational limits of the Alimony Reform Act of 2011
(act), St. 2011, c. 124, to certain alimony agreements predating
the act's effective date. We conclude that the application of
2
the act's durational limits to certain alimony agreements that
predate the act is not unconstitutionally retroactive because
the statute does not attach "new legal consequences to events
completed before its enactment." Landgraf v. USI Film Prods.,
511 U.S. 244, 270 (1994). We also conclude that the Probate and
Family Court judge did not abuse her discretion when she
declined to deviate from the durational limits in this case.
Background. 1. The Alimony Reform Act of 2011. The act
changed neither the essential purpose nor the basic definition
of alimony: "the payment of support from a spouse, who has the
ability to pay, to a spouse in need of support." G. L. c. 208,
§ 48. See Hassey v. Hassey, 85 Mass. App. Ct. 518, 522 (2014).
It did, however, make several changes to the Commonwealth's
alimony laws. See generally Kindregan, Reforming Alimony:
Massachusetts Reconsiders Postdivorce Spousal Support, 46
Suffolk U. L. Rev. 13, 26 (2013).
The relevant change on appeal is the creation of durational
limits -- or presumptive termination dates -- for alimony
obligations arising from marriages lasting fewer than twenty
years. G. L. c. 208, § 49 (b). This presumption that alimony
should terminate after a certain length of time may be overcome,
however, by showing that the payment of alimony beyond the
relevant durational limit is "required in the interests of
3
justice." Id. See George v. George, 476 Mass. 65, 69-70
(2016).
The Legislature provided that the durational limits, in
contrast to the remainder of the act, may be applied to alimony
judgments that entered before the act's effective date of March
1, 2012, with certain delineated exceptions not relevant here.
St. 2011, c. 124, §§ 4, 7. See Chin v. Merriot, 470 Mass. 527,
536 (2015). See also George, supra at 68.
2. Facts. William Van Arsdale and Susan Van Arsdale
married in 1979 and divorced in 1997. 1 They had two children,
who were unemancipated at the time of divorce. The divorce
judgment incorporated and merged the parties' separation
agreement, which provided for William to pay $3,333.33 in child
support and $3,333.33 in alimony to Susan each month. The
agreement provided that the alimony payments would continue
until either party's death or Susan's remarriage.
Notwithstanding those termination provisions, the parties agreed
to review William's alimony payment obligations when the
parties' youngest child became emancipated and when William
retired from full-time employment, provided he was at least
sixty-two years of age.
1
Because they share a last name, we refer to the parties by
their first names.
4
In 2005, William filed a complaint for modification in
which he alleged that the parties' youngest child was
emancipated. That complaint led to a 2006 modification
agreement, which merged with the modification judgment, wherein
the parties agreed to discontinue the child support payments and
to increase alimony payments to $7,571.26 per month.
In 2015, William filed another complaint for modification
seeking to terminate his alimony obligation based upon the act's
durational limits and because he had retired from full-time
employment. Susan filed an answer and a counterclaim seeking to
increase both her alimony payments and the amount of life
insurance William was obligated to maintain on his life for her.
She was later permitted to amend her answer to add her challenge
to the constitutionality of the durational limits.
After a trial, the Probate and Family Court judge issued an
order terminating William's obligation to pay Susan alimony
because the act's relevant durational limit had been exceeded 2
and Susan had not shown that deviation from them was necessary.
The judge reasoned that deviation was not necessary because
Susan's medical condition had not precluded her from employment
2
For marriages lasting longer than fifteen years but less
than twenty years, like the Van Arsdale's, the durational limit
-- which is expressed as a percentage of the length of the
marriage -- is "[seventy] per cent of the number of months of
the marriage." G. L. c. 208, § 49 (b) (3).
5
and that she had been terminated from her job on account of her
failure to "heed constructive criticism." Although the judge
declined to rule on Susan's constitutional arguments, she noted
that Susan should not have had an expectation that the alimony
payments would continue in perpetuity because of the provision
in the agreement allowing for a review of William's alimony
obligation upon his retirement. Susan appealed, and this court
granted her application for direct appellate review.
Discussion. 1. Constitutional challenge. Susan argues
that the application of the act's durational limits to the
alimony agreement between her and William is unconstitutionally
retroactive.
a. Retroactivity. When a party argues that a statute is
impermissibly retroactive we first "must determine whether the
law . . . has a retroactive effect. If not, and assuming the
law is otherwise constitutional, no further inquiry is
necessary." Moe v. Sex Offender Registry Bd., 467 Mass. 598,
606 (2014). 3
To answer the question, we employ the "new legal
consequences" test as articulated by the United States Supreme
Court in Landgraf, 511 U.S. at 269-270. See Moe, 467 Mass. at
3
If the statute is determined to be retroactive we must ask
two more questions: "whether the Legislature clearly intended
it to be retroactive" and "[w]here it so intended, . . . whether
retroactive application is constitutional." Moe v. Sex Offender
Registry Bd., 467 Mass. 598, 606 (2014).
6
607. "[T]he court must ask whether the new provision attaches
new legal consequences to events completed before its enactment.
The conclusion that a particular rule operates 'retroactively'
comes at the end of a process of judgment concerning the nature
and extent of the change in the law and the degree of connection
between the operation of the new rule and a relevant past
event." Landgraf, supra.
b. Analysis. Before discussing whether the durational
limits presumption has a retroactive effect, we must first
address observations we made in George and Holmes v. Holmes, 467
Mass. 653, 661 n.9 (2014). In George, we stated plainly that
the durational limit provisions of the act were
"retroactive." George, 476 Mass. at 68, citing Rodman v. Rodman,
470 Mass. 539, 544 (2015), Chin, 470 Mass. at 536,
and Holmes, supra. That statement, however, was merely a
recognition that the durational limits presumption applies to
alimony agreements that predate the act. We did not comment on
whether the limits have a retroactive effect in the
constitutional sense. See Landgraf, 511 U.S. at 269 ("statute
does not operate 'retrospectively' merely because it is applied
in a case arising from conduct antedating the statute's
enactment").
7
We now turn to whether the act's durational limits
presumption has a retroactive effect (i.e., whether it attaches
new legal consequences to agreements that predate the act).
In Doe, Sex Offender Registry Bd. No. 3839 v. Sex Offender
Registry Bd., 472 Mass. 492, 497 (2015) (Doe No. 3839), we
examined whether G. L. c. 6, §§ 178C-178Q, the sex offender
registry law, had an unconstitutionally retroactive effect. The
law provides that individuals convicted of, or adjudicated as a
delinquent juvenile by reason of, a sex offense have to register
with the Sex Offender Registry Board (SORB). The registration
requirement applies to people who were convicted or adjudicated
delinquent prior to the statute's enactment. Doe No.
3839, supra at 496-497. The statute, however, allows SORB to
relieve individuals such as the plaintiff in that case from the
obligation to register as a sex offender. Id. at 497. Because
the law made the plaintiff merely eligible for registration and
allowed him an opportunity to prove to SORB that he should not
have to register, we held that the law did not necessarily
attach new legal consequences to the plaintiff's prestatute
adjudications and that the statute applied prospectively to
him. Id.
By contrast, in Doe, Sex Offender Registry Bd. No. 8725
v. Sex Offender Registry Bd., 450 Mass. 780, 787, 793 (2008)
(Doe No. 8725), we held that a prior version of the sex offender
8
registry law was unconstitutional as applied to the plaintiff
because it required him to register as a sex offender (i.e.,
attached new legal consequences to him) "solely by virtue of his
prior conviction." Id. at 784. Unlike the plaintiff in Doe No.
3839, the plaintiff in Doe No. 8725 did not have an opportunity
to prove that he should not have to register. Doe No.
8725, supra at 787. This lack of opportunity to escape the
effects of a statute attaching new legal consequences and
enacted after the plaintiff's conviction was the crucial
distinction between an unconstitutionally retroactive statute
(Doe No. 8725) and a constitutional one (Doe No. 3839).
Here, as in Doe No. 3839, Susan had an opportunity to show
that the durational limits should not apply to her. See G. L.
c. 208, § 49 (b). The durational limits merely create a
presumption of termination that a recipient spouse such as Susan
can rebut by showing that deviation from the limits is "required
in the interests of justice." Id. Applying such a presumption
is not impermissibly retroactive. See Doe No. 3839, 472 Mass.
at 497 (presumption of registration does not attach new legal
consequence to events prior to sex offender registry law). See
also Tobin's Case, 424 Mass. 250, 255 (1997) ("[E]stablishment
of a rebuttable presumption also does not violate due process.
Presumptions are simply rules of evidence that fall within the
general power of government to adopt"). Thus, the act compels
9
no new legal consequences to the bargains struck by parties in
merged alimony agreements entered into prior to the act's
effective date.
The constitutionality of the application of the act's
durational limits presumption to agreements that predate the act
is further demonstrated by the standard for deviation beyond
those limits articulated in George. There, we held that the
G. L. c. 208, § 49 (b), "interests of justice" standard should
focus on the circumstances of the parties in the "here and
now." George, 476 Mass. at 70. By requiring such a temporal
focus, the statute ensures that any new legal consequences that
result from the durational limits are not the result of actions
that predated the act, but rather are based on the circumstances
of the parties as they exist before the judge deciding a
modification complaint. See Doe No. 3839, 472 Mass. at 497
(individual's obligation to register was based on
contemporaneous evaluation of risk to reoffend and
dangerousness, rather than on convictions prior to sex offender
registry law).
Because we hold that the act's durational limits are not
retroactive in the constitutional sense, no further inquiry is
necessary. See Moe, 467 Mass. at 606.
2. Abuse of discretion. "[A] judge enjoys considerable
discretion in fashioning an appropriate modification
10
judgment." Holmes, 467 Mass. at 661, quoting Pierce v. Pierce,
455 Mass. 286, 293 (2009). Here, the judge concluded that
Susan's health did not preclude her from employment; that she
had two residences, one of which could be rented out; that she
had over $170,000 in cash and more than $1 million in assets;
and that her lifestyle had not been negatively impacted since
the 2006 modification. Further, the judge properly examined the
circumstances of the parties in the "here and now." George, 476
Mass. at 70. The judge did not abuse her discretion in
declining to deviate beyond the act's durational limits.
Conclusion. The durational limits of the act are not
impermissibly retroactive, and the judge did not abuse her
discretion in declining to deviate beyond the limits.
Judgment affirmed.