Caffyn v. CaffynCaffyn v. Caffyn
- Reporters:
- , ,
- Before:
- Ireland
This case raises the first impression question whether a plaintiff in a divorce action who has not complied with the one-year residency requirement of
Facts.
The parties were married in Brookline, Massachusetts, on May 30, 1987. After the marriage, the parties resided in Stamford, Connecticut, for approximately one year. Between 1988 and 1990, the husband and the wife lived in Massachusetts for approximately one and one-half years. The parties then moved to Chicago, Illinois, where they resided for approximately six years and where their two children were bom. Thereafter, the family relocated to San Diego, California, where they lived for approximately one and one-half years. In approximately 1996 or 1997, the parties and their children moved to Italy, where they resided as a family through the end of June, 2002, when the wife moved to Massachusetts with the children.
Throughout the marriage, the husband and the wife maintained a joint bank account in Massachusetts. The parties also retained pediatricians for their children and came to Massachusetts twice a year for the children to be seen by “their” doctors. The wife alleges (and the husband does not dispute) that each year, the family spent Christmas holidays and a portion of summer vacations in Massachusetts.
Before leaving Italy, the wife arranged for the family’s personal belongings to be shipped to Massachusetts, discharged hired help, canceled the children’s tutors and therapist, and caused the children’s educational records to be sent to Massachusetts. After moving to Massachusetts in June of 2002, the wife opened a bank account in her own name. In late August of 2002, the wife and the husband purchased a residence in Wellesley, with title taken jointly in both their names. They jointly investigated private schools in Massachusetts for the children. The husband purchased, and the wife registered, a
Procedural background.
The wife filed a complaint for divorce in the Norfolk County Probate and Family Court on June 28, 2002. Due to procedural flaws, however, that complaint was dismissed. The wife filed a second, essentially identical, complaint on October 15, 2002, in which she sought, inter alia, a dissolution of the marriage pursuant to G. L. c. 208, § IB,2 and alleged that “an irretrievable breakdown of the marriage” occurred on or about June 26, 2002, within the Commonwealth.3
The husband’s counsel filed a special appearance and a motion, pursuant to Mass. R. Dom. Rel. P. 12 (b),4 to dismiss the wife’s complaint for divorce due to lack of subject matter and personal jurisdiction, insufficient service of process, and failure to state a claim on which relief can be granted.5 The husband also submitted an affidavit disputing the validity of service of
Discussion.
1. Standard of review. The focus of appellate review of an interlocutory matter is “whether the trial court abused its discretion — that is, whether the court applied proper legal standards and whether the record discloses reasonable support for its evaluation of factual questions.” Edwin R. Sage Co. v. Foley, 12 Mass. App. Ct. 20, 25 (1981). The judge’s “conclusions of law are subject to broad review and will be reversed if incorrect.” Id. at 26.
2. Subject matter jurisdiction under
“If the plaintiff has lived in this commonwealth for one year last preceding the commencement of the action if the cause occurred without the commonwealth, or if the plaintiff is domiciled within the commonwealth at the time of the commencement of the action and the cause occurred within the commonwealth, a divorce may be adjudged for any cause allowed by law, unless it appears that the plaintiff has removed into this commonwealth for the purpose of obtaining a divorce.”
Specifically, we must decide whether a spouse who has not complied with a statutory one-year residency requirement may satisfy the jurisdictional requirements of § 5 by asserting domicil after a brief period of residence and claiming that the “cause” for the divorce, namely “an irretrievable breakdown of the marriage,” “occurred within” Massachusetts.9
a. Burden of proof Because the husband filed a motion to dismiss due to lack of subject matter jurisdiction under Mass. R. Dom. Rel. R 12 (b) (1), the burden fell on the wife to prove jurisdictional facts. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n.2 (2002), and cases cited. See Brown v. Tobyne, 9 Mass. App. Ct. 897 (1980).
At the time she filed the complaint for divorce, the wife had not yet satisfied the one-year residency requirement, and thus could not establish jurisdiction on that prong of § 5.10 Therefore, to establish subject matter jurisdiction under the alternative prong of § 5, the wife had to prove that she was domiciled in Massachusetts when she filed the complaint, that the “cause”
b. Domicil. Domicil has been defined as “the place of one’s actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode.” Fiorentino v. Probate Court, 365 Mass. 13, 17 n.7 (1974), quoting Tuells v. Flint, 283 Mass. 106, 109 (1933). Whether a person has established a domicil in a State is a question of fact for the trial judge. See id. at 21-22. The judge can make “a reasonably accurate determination” of the plaintiff’s claim of Massachusetts domicil based on numerous factors, including, without limitation, whether the plaintiff has “a Massachusetts driver’s license and automobile registration; whether he or she has purchased a home or has leased an apartment in the Commonwealth; . . . whether any children have been brought to live in Massachusetts; whether personal property, including household goods, has been brought here; . . . whether there is evidence of abandonment of previous domicil, e.g., cancellation of bank accounts, leases, memberships, and so forth, sale of property, and issuance of change of address notices.” Fiorentino v. Probate Court, supra at 22 & n.12.11 The length of residence in the State is “one, but only one, relevant consideration” in determining domicil. Id. at 22. See Kennedy v. Simmons, 308 Mass. 431, 434-435 (1941) (domicil established in Massachusetts where person intended to remain permanently but died in hospital one week after arriving in Massachusetts from Florida); Winans v. Winans, 205 Mass. 388, 391-392 (1910) (domicil established in Massachusetts even though person had stayed in Massachusetts for less than two weeks living in hotel while looking for more permanent accommodations).
c. “An irretrievable breakdown of the marriage” as “cause” for divorce under § 5. The subject matter jurisdiction statutes were enacted long before the no-fault divorce statutes, and the term “cause” referred, at first, only to the fault grounds that had to be proved to obtain a divorce.12 In 1975, the Legislature added “an irretrievable breakdown of the marriage” as a ground for divorce. St. 1975, c. 698, amending
We now examine the language of § 5.13 Section 5 does not distinguish between fault and no-fault grounds for divorce. It provides that “a divorce may be adjudged for any cause al
The husband argues that the wife’s claim that the marriage suffered “an irretrievable breakdown in Massachusetts” is based entirely on an “ethereal” event. We disagree. There is support for the wife’s assertion that the marriage became irretrievably broken in Massachusetts. In his memorandum of law in support of the motion to dismiss the wife’s divorce action, the husband admitted that the parties attempted reconciliation in Massachusetts during the summer of 2002.19 By September of 2002, however, the parties’ reconciliation attempts failed. The reconciliation having failed, the “irretrievable breakdown” that the wife alleged occurred on or about July 26, 2002, continued as set forth by the wife in her second complaint for divorce.20
Conclusion.
For the foregoing reasons, we conclude that the judge did not abuse his discretion in concluding that the wife satisfied the jurisdictional requirements of
So ordered.
Notes
The wife was bom in Massachusetts. Her parents are lifelong residents of the Commonwealth.
General Laws c. 208, § IB, along with
Section IB permits a party to file a complaint for divorce. It further provides that “[n]o earlier than six months after the filing of the complaint, there shall be a hearing and the court may enter a judgment of divorce nisi if the court finds that there has existed, for the period following the filing of the complaint and up to the date of the hearing, a continuing irretrievable breakdown of the marriage.” G. L. c. 208, § IB. The judgment of divorce absolute is entered ninety days later.
On the same day, October 15, 2002, the husband was served with a copy of the complaint, in hand, while visiting the parties’ minor children in Massachusetts.
Rule 12 (b) of the Massachusetts Rules of Domestic Relations Procedure (2004) is identical to
The husband also raised the Hague Convention on the Civil Aspects of International Child Abduction. At the hearing on his motion to dismiss, the husband’s attorney stated that within several days of the hearing, the husband was planning to file a complaint with the Federal District Court for the District of Massachusetts under the Hague Convention. The Hague Convention issue is not before us on appeal.
The statute itself does not specify what constitutes “an irretrievable breakdown of the marriage.” See G. L. c. 208. The term has been defined as meaning that either or both spouses are unable or unwilling to cohabit and there are no prospects for reconciliation. C.P. Kindregan, Jr. & M.L. Inker, Family Law and Practice § 33:9 (3d ed. 2002), citing Black’s Law Dictionary 830 (6th ed. 1990).
See note 2, supra.
The other jurisdictional statute,
“A divorce shall not, except as provided in the following section, be adjudged if the parties have never lived together as husband and wife in this commonwealth; nor for a cause which occurred in another jurisdiction, unless before such cause occurred the parties had lived together as husband and wife in this commonwealth, and one of them lived in this commonwealth at the time when the cause occurred.”
Because we conclude that subject matter jurisdiction over this action exists under § 5, we need not decide whether it also exists under § 4.
The wife asserts that she has been domiciled in Massachusetts since June of 2002, and that her subjective assertion that the marriage became irretrievably broken on or about June 26, 2002, is not only sufficient to confer subject matter jurisdiction, but also comports with the intent of the Legislature in enacting
Although the wife has now fulfilled the one-year residency requirement, and presumably may now file a proper divorce complaint under § 5 even if the “cause” for divorce did not occur in Massachusetts, we nevertheless shall proceed to a decision because of the importance and recurring nature of the issue presented. See Lockhart v. Attorney Gen., 390 Mass. 780, 782-783 (1984).
The husband’s contention that the definition of domicil “is clearly a rather elusive relationship between person and place” is without merit. We have stated before, and now reiterate: “[W]e do not believe that . . . fraudulent claims of domicil can be perpetrated so effectively as to defy detection by judges who act affirmatively to prevent such fraud.” Fiorentino v. Probate Court, 365 Mass. 13, 21 (1974). There exist “a myriad of tangible [objective] criteria” that are “highly relevant” to the determination of domicil. Id. at 22, quoting Mon Chi Heung Au v. Lum, 360 F. Supp. 219, 222 (D. Haw. 1973).
In 1975, the year in which it enacted the no-fault statutes, the Legislature amended both subject matter jurisdiction statutes to conform to the Massachusetts Rules of Civil Procedure, and it further amended
The parties have not supplied, and we have not been able to locate, any legislative history that would aid us in discerning the legislative intent of that section.
In contrast, a plaintiff seeking a divorce on fault grounds must plead and prove objective acts as to fault. See
The cases cited by the husband in support of this position are either Massachusetts cases decided prior to the enactment of the no-fault divorce statutes, or cases from other jurisdictions, distinguishable from this case on their facts.
An analysis of California’s no-fault divorce statute,
The California no-fault divorce statute does not explicitly state whether a “petitioner’s self-serving testimony about his or her state of mind” is sufficient evidence to establish irreconcilable differences, or whether it must be “corroborated by evidence of actual facts and occurrences.” Id. at 1320. Reading the statutory provisions regarding “irreconcilable differences” together with the provisions generally prohibiting receipt of fault evidence in divorce cases brought on no-fault grounds, it becomes clear that “demonstrative evidence is not required to corroborate state-of-mind testimony” and “the prima facie case for dissolution should be satisfied by the declaration of petitioner that he or she sincerely believes that the marriage has irreparably broken down.” Id. at 1321, 1322. See id. at 1324 (irreconcilable differences is “proved solely with reference to petitioner’s state of mind”). Similar to the California no-fault divorce statute,
Our conclusion finds support in the reasoning of other courts. See, e.g., In re Marriage of Walton, 28 Cal. App. 3d 108, 117 (1972), quoting In re Marriage of McKim, 6 Cal. 3d 673, 680 (1971) (in deciding whether evidence supports findings “that irreconcilable differences do exist and that the marriage has broken down irremediably and should be dissolved,” the court must necessarily “depend to a considerable extent upon the subjective state of mind of the parties”); Joy v. Joy, 178 Conn. 254, 255 (1979) (there need not be “objective guidelines” for determination that marriage is irretrievably broken); Mattson v. Mattson, 376 A.2d 473, 475 (Me. 1977) (“The term ‘irreconcilable marital differences’ is one that necessarily lacks precision and should not be circumscribed by a strict definition”); Matter of the Marriage of Dunn, 13 Or. App. 497, 501-502 n.l (1973) (explaining necessity of subjective standard of marital failure in context of no-fault divorce).
See Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L. Rev. 79, 83-91 (1991). A “review of legal literature advocating or discussing the adoption of no-fault divorce grounds in the 1960s and 1970s,” id. at 91, revealed that one of the major arguments in favor of adopting no-fault divorce grounds was that basic notions of marriage and divorce had changed, and “no-fault divorce more accurately reflected modem conceptions of terminating marital relations than did the prior laws.” Id. at 95. Specifically, the advocates of no-fault divorce asserted that “divorce was a private matter that the state had no legitimate interest to restrict when the marriage was irretrievably broken and the parties to the marriage had agreed to terminate the marriage.” Id. at 96. The main thrust of this privacy argument was to protect the parties from “unnecessary distress and embarrassing public disclosures.” Id. The proponents of no-fault divorce claimed that requiring the parties to disclose “ ‘the most intimate and often embarrassing details of marital life’ [was] ‘abhorrent to the community,’ violated the spirit of family privacy, and worked only to ‘demean the marriage relationship, humiliate the parties, and damage the residual family relationships.’ ” Id. at 96, quoting Goldstein, On Abolition of Grounds for Divorce: A Model Statute and Commentary, 3 Fam. L.Q. 75, 82-83 (1969). The shift to the no-fault divorce was, thus, prompted in part by the belief that “[t]he state’s interest in protecting marriages did not justify requiring disclosure of the marriage’s failings if it was undisputed by the parties that the marriage was irretrievably broken.” Wardle, supra at 96.
No-fault divorce laws represent a “cultural rise of individual liberty within the family” and “allow the parties involved to assess the viability of the marriage.” Note, Who Pays for Guilt?: Recent Fault-Based Divorce Reform Proposals, Cultural Stereotypes and Economic Consequences, 40 B.C. L. Rev. 611, 614 (1999). Judges, thus, “do not contest the viability of a marriage.” Id.
The husband’s memorandum of law reads, in pertinent part:
“In the late summer of 2002, [the wife] reported to [the husband] that she would be amenable to a reconciliation. The terms of such reconciliation, however, were conditioned upon [the husband’s] agreeing to assist [the wife] with the purchase of a temporary residence in the Boston area while she assessed the prospect of resuming living together. In specific reliance on [the wife’s] overtures with, respect to reconciliation, and in an effort to save the marriage, [the husband] agreed to assist [the wife] with the purchase of a home in Wellesley in late August/early September, 2002.”
The fact that the wife moved to Massachusetts, while the husband remained in Italy, does not, by itself, establish that the parties’ marriage had already become irretrievably broken in Italy. Many married couples do not reside together, or temporarily occupy residences in separate locations, for employment or other reasons. It would defy common experience to conclude from this fact alone that their marriages must have broken down prior to the time they took up separate residences.
As we noted in Florentino v. Probate Court, 365 Mass. 13, 17 (1974), “State courts [constitutionally] may exercise divorce jurisdiction based solely” on the domicil of the plaintiff, even if the defendant “neither appears nor is personally served and even though the parties never resided as husband and wife in the forum State.” See C.P. Kindregan, Jr. & M.L. Inker, Family Law and Practice § 8:4, at 297 (3d ed. 2002) (“Divorce subject matter jurisdiction in the United States is generally . . . based on the domicile of at least one of the parties . . .”).
These “statutory restrictions on the divorce powers of Massachusetts courts were presumably intended to prevent the bringing of migratory causes of action in Massachusetts” and limit divorce proceedings to “situations where the Commonwealth has some substantial connection with the dispute being adjudicated.” Fiorentino v. Probate Court, supra at 17. We conclude that the trial judge did not abuse his discretion in concluding that this case is neither a migratory cause of action nor a situation where the Commonwealth does not have a substantial connection with the dispute.