Holmes v. Holmes (Lawyers Weekly No. 10-061-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC‑11538 ELAINE M. HOLMES vs. KENNETH E. HOLMES. Essex. December 3, 2013. ‑ April 2, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Divorce and Separation, Alimony, Modification of judgment. Statute, Amendment. Words, “General term alimony”. Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on May 31, 2006. The case was heard by Amy L. Blake, J., and a complaint for modification, filed on July 20, 2011, was heard by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. William Sanford Durland, III for the defendant. James M. Walsh for the plaintiff. GANTS, J. 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 more than [eighty] per cent of the number of months of the marriage” unless the judge makes a written finding that deviation beyond this time limit is required in the interest of justice. G. L. c. 208, § 49 (b) (4). The issue presented in this case is whether alimony paid under a temporary support order during the pendency of a divorce proceeding, pursuant to G. L. c. 208, § 17 (temporary alimony), must be included in calculating the maximum presumptive duration of general term alimony under § 49 (b). We conclude that temporary alimony is separate and distinct from general term alimony, and that the duration of temporary alimony is not included in calculating the maximum presumptive duration of general term alimony. We also conclude that, where temporary alimony is unusually long in duration or where the party receiving temporary alimony has caused unfair delay in the issuance of a final judgment in order to prolong the length of time in which alimony may be paid, a judge in her discretion may consider the duration of temporary alimony in determining the duration of general term alimony. Background. Kenneth Holmes (husband) and Elaine Holmes (wife) were married on May 25, 1991, and have three children. The wife filed a complaint for divorce on May 31, 2006. On June 12, 2006, and again on November 3, 2006, in accordance with the parties’ written agreement, the judge […]