Sbrogna v. Sbrogna (Lawyers Weekly No. 11-006-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 17-P-194 Appeals Court RALPH F. SBROGNA vs. JUDITH L. SBROGNA. No. 17-P-194. Worcester. November 3, 2017. – January 16, 2018. Present: Wolohojian, Massing, & Wendlandt, JJ. Divorce and Separation, Alimony. Practice, Civil, Motion to dismiss, Complaint. Complaint for divorce filed in the Worcester Division of the Probate and Family Court Department on June 27, 1994. A complaint for modification was filed on September 15, 2016, and a motion to dismiss was heard by Leilah A. Keamy, J. Richard M. Novitch for the husband. Erin M. Shapiro (David E. Cherny also present) for the wife. WOLOHOJIAN, J. This case, like many divorce cases, involved the filing of more than one complaint and/or petition for divorce. The question presented here is which of those pleadings is to be used for purposes of G. L. c. 208, § 48, enacted as part of the alimony reform act, which 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. We conclude that it is the pleading upon which judgment of divorce absolute entered. The parties were married on June 16, 1973. In 1975, the Legislature added irretrievable breakdown of the marriage as a ground for divorce. A divorce on this ground can be initiated in one of two ways. If both parties agree that the marriage is irretrievably broken, then a joint petition signed by both parties or their attorneys and accompanied by (among other things) a notarized separation agreement, may be filed under G. L. c. 208, § 1A (which for convenience, we shall call a § 1A petition). A § 1A petition need not be served and no summons or answer is required. If a divorce action has been initiated by a § 1A petition, the “court shall make no inquiry into, nor consider any evidence of the individual marital fault of the parties.” G. L. c. 208, § 1A, as appearing in St. 1985, c. 691, § 1. If, instead, one party alone initiates the divorce, then he or she must begin by filing a complaint under G. L. c. 208, § 1B (a § 1B complaint). A § 1B complaint, together with the summons, must be served on the other spouse. […]