Lead Opinion
In this consolidated appeal, the plaintiff, Francesca Cerutti-O’Brien, appeals from judgments of the Probate and Family Court dismissing two complaints for divorce for lack of subject matter jurisdiction. The plaintiff argues that, contrary to the judge’s findings, subject matter jurisdiction was proper because she was domiciled in Massachusetts at all times relevant to the divorce. We affirm.
Background. The facts as found by the judge can be summarized as follows. The plaintiff and the defendant, Donna-Marie Cerutti-O’Brien, were married in Truro on November 29, 2006. At the time the couple was married, the defendant lived
For ten years leading up to the marriage, the plaintiff had made routine trips to Florida, staying with friends or in rentals for periods of two to five months at a time. The defendant testified that the couple intended to open a store in Florida to operate during the high season between October and May. On December 7, 2006, the couple purchased a home in Nokomis, Florida. The couple took title in both their names and took advantage of the defendant’s long-term residence in the State to claim homestead status, entitling them to certain tax exemptions and savings.
Problems in their relationship quickly arose, and the parties entered couples’ counselling in Florida. On June 27, 2007, the plaintiff filed for divorce in Massachusetts in the Probate and Family Court. The complaint alleged that an irretrievable breakdown of the marriage occurred in Nokomis, Florida, on or about June 19, 2007.
During opening statements of the trial on the complaint for divorce, the defendant, appearing pro se, called into question the court’s ability to hear the case, raising the issue of the plaintiff’s domicil at the time she filed the complaint. The judge treated the matter as an oral motion to dismiss for lack of subject matter jurisdiction and subsequently held an evidentiary hearing on thе issue.
The judge found that for seven months, up to and including the time of filing for divorce, the plaintiff was domiciled in Florida. The judge found disingenuous the plaintiff’s representation that she did not move to Florida with the intent to remain there permanently. The judge determined that the credible evidence supported a finding that the parties intended to make Florida their permanent residence and to spend their summers in Massachusetts. The judge also found that due to the short period of marital happiness, the plaintiff never got around to changing her vehicle or voter registrations, if she had even
On July 7, 2008, the plaintiff filed a second complaint for divorce; on October 10, 2008, the defendant’s motion to dismiss was allowed. The plaintiff’s appeal from the dismissal of the second complaint was consolidated with her appeal from the first dismissal.
Discussion. General Laws c. 208, § 4, amended by St. 1975, c. 400, § 9, provides that “[a] divorce shall not, except as provided in [G. L. c. 208, § 5], 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 . . . in this commonwealth, and one of them lived in this commonwealth at the time when the cause occurred.” General Laws c. 208, § 5, amended by St. 1975, c. 400, § 10, enumerates certain exceptions to § 4, providing that “[i]f 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.” Here, there is no question that the cause for the divorce occurred while the parties were living in Florida.
The issue of the plaintiff’s domicil presented “a question of fact for the trial judge.” Caffyn v. Caffyn,
Moreover, in Massachusetts, “[f]or the purpose of jurisdiction in cases of divorce, the general rule is that the domicil of the husband is the domicil of the wife,” Burlen v. Shannon,
“l.A wife who lives with her husband has the same domicil as his unless the special circumstances of the wife make such a result unreasonable.
“2. A wife who lives apart from her husband can acquire a separate domicil of choice.”6
Here, the plaintiff (1) bore the burden of persuading the judge of her Massachusetts domicil, and (2) had to rebut the presump
The plaintiff responded to the challenge to subject matter jurisdiction by claiming that she never intended to change her domicil from Massachusetts to Florida. The judge was not required to credit, nor did she credit, the plaintiff’s self-serving claim. See Commonwealth v. Davis,
Here, in the absence of some clear identifiable and compelling reason to the contrary, if not a clear and public declaration, the judge simply concluded that the couple married and purchased a marital residence in Florida. The residence was near family and certainly could not be considered to be a vacation home. The case law informs us and it is reasonable to conclude that a married couple, living together in the permanent marital residence, created a strong presumption of domicil at that residence.
This presumption, however, could have been overcome by a declaration of choice of domicil prior to the marriage. See note 5, supra. Here, the plaintiff neither lived apart from her spouse nor established a declaration of choice of domicil prior to the marriage.
Furthermore, despite the evidence that the plaintiff did not change her voter or vehicle registrations and maintained ownership of her Truro residence, all factors potentially contributing to a determination of domicil under different circumstances, see Fiorentino v. Probate Ct.,
Finally, we note that the plaintiff has apparently now satisfied the alternative one-year residency requirement of G. L. c. 208, § 5, and having now reestablished her domicil in Massachusetts “presumably may now file a proper divorce complaint under § 5 even if the ‘cause’ for divorce did not occur in Massachusetts.” Miller v. Miller,
For the reasons stated above, the judgments are affirmed.
So ordered.
Notes
On October 9, 2009, we remanded this matter to the Probate and Family Court, granting the plaintiff “leave to file a complaint for divorce ... on or before November 10, 2009.” In accordance with what “she believed to be a mandatory directive from [this] court,” the plaintiff filed a third complaint for divorce. On Novembеr 20, 2009, we issued an “order and clarification” in which we stated that the October 9, 2009, order “was intended to be permissive” and that the filing and service of another complaint for divorce “would render the instant appeal moot.” The plaintiff responded to this court that she did “not wish to render the instant appeal moot.” We understand that the third complaint for divorce was dismissed for lack of service.
The judge’s findings specifically note that the plaintiff’s complaint alleged that the irretrievable breakdown of the marriage occurred in Florida.
It is not our role to interpret the evidence differently from the judge and certain principles of the well-established “clearly erroneous” test must be reiterated:
“First, the judge’s assessment of the quality of the testimony is entitled to our considerable respect because it is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence. Second, if the trial court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Third, the burden is squarely on the appellant to show an appеllate court that a finding is clearly erroneous.”
Edinburg v. Edinburg,
“A change of domicil takes place when a person with the capacity to change [her] domicil is physically present in a place and intends to make that place [her] home for the time at least.” Hershkoff v. Board of Registrars of Voters of Worcester,
While it is true that common law required, by operation of law, that a married woman take the domicil of her husband, modifications of that common-law principle began very early in Massachusetts. See Harteau v. Harteau,
Restatement (Second) of Conflict of Laws § 21 comment b, at 85, explains that “there will be extremely rare situations where a wife who lives with her husband has a domicil apart from his.” The fact that we can interchange the phrase “spouse” for the phrases “husband” and “wife” where appropriate is obvious. It is therefore both practical and appropriate that the law presumes that spouses living together share the same domicil absent special circumstances. One such special circumstance, for example, is where a spouse executes an agreement prior to the marriage in which she states her intention to maintain her then current domicil as her domicil of choice and does not intend to assume her spouse’s domicil. See ibid.
The dissent cites to the principle that “[t]here is a presumption that once domicile is established it continues,” Kindregan & Inker, Family Law & Practice § 27.2, at 75, as the operative evidentiary presumption in this case and as militating against the judge’s entry of the judgment of dismissal. We are constrained to point out that the cases cited by the dissent in support of this presumption neither involve, nor even relate to, challenges to the court’s subject matter jurisdiction in divorce actions. See Commonwealth v. Davis,
Simply put, while it may be an appropriate presumption that domicil continues once established in tax and contract cases, there is no authority for the proposition that the presumption of marital domicil has been abolished in Massachusetts. See Green v. Commissioner of Corps. & Taxn.,
“A presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by ‘throw[ing] upon his adversary the burden of going forward with evidence.’ ” Standerwick v. Zoning Bd. of Appeals of Andover,
The plaintiff’s apparent financial independence renders the closing of the business in 2005 and the intention to open another in the future less significant than it otherwise might be to our determination of domicil.
The dissent, post at 179 n.6, implies that the defendant made a declaration of domicil in Massachusetts, immediately prior to the marriage. The document referred to, however, is neither a declaration of domicil nor a declaration of separate domicil, but is the “Notice of Intention of Marriage” form. The defendant stated on the form that she intended to reside in the Commonwealth. It was then a prerequisite to being married here. (The law has since been changed.) Obviоusly, the defendant never intended to reside here and moved to Florida within a few days of being married. She also testified repeatedly that she never intended to reside in Massachusetts.
The couple’s marriage deteriorated very quickly after moving to Florida and the parties entered marriage counselling only months after the move. The problems only escalated as the couple began their legal battle in Florida (the subject and content of which is not before us). In light of these circumstances, the plaintiff’s failure to change her voter registration and driver’s license is not indicative of her intent to remain a Massachusetts domiciliary, and the judge’s finding to the contrary was reasonable and supported by the evidence. The dissent notes that the defendant made numerous assertions that the plaintiff was not a Florida resident with no social or professional ties to the area. However, these assertions were made in the context of attempts to gain control of the marital residence and support from the plaintiff once the marriage had already broken down, not before. At some point during the couple’s Florida legal battles, the courts of that State gave temporary exclusive use of the marital residence to the plaintiff.
It is not unusual for our courts to disregard such circumstantial evidence. For example, in Reiersen v. Commissioner of Rev.,
Assuming that the plaintiff had reestablished her domicil in Massachusetts after leaving Florida, following the breakdown of the marriage, subject matter jurisdiction would not be proper under the statutes because, upon filing her complaint, she had not yet met the one-year residency requirement, and the breakdown did not occur in the Commonwealth.
Dissenting Opinion
(dissenting). Before us is a consolidated appeal from the dismissal of two divorce complaints filed by the plaintiff,
The initial divorce complaint (and the dеfendant’s counterclaim for divorce) was dismissed for lack of subject matter jurisdiction pursuant to the defendant’s oral motion, lodged on the first day of trial. The Probate and Family Court judge considered the pleadings, as well as testimony and documentary
The judge’s decision focuses on the requirement in G. L. c. 208, § 4, that one of the parties to the marriage must have “lived in this Commonwealth at the time the cause [of the breakdown] occurred.”
Some of the findings are not supported by the evidence and the findings that are supported do not establish that the plaintiff changed her domicil from Massachusetts to Florida. It has long been established in a variety of substantive areas that when therе is a claim that a fixed domicil has been changed, the burden of production and persuasion is on the one asserting the change. I would remand for new findings and consideration of the evidence in light of the applicable burden of proof.
Burden of establishing changed domicil. It is not disputed that at the time of the parties’ marriage, the plaintiff had been a long-time domiciliary of the Commonwealth. “There is a presumption that once domicile is established it continues.” Kindregan & Inker, Family Law & Practice § 27.2, at 75 (3d ed. 2002). See Labonte v. Labonte,
Once a domicil is established, “the burden of showing a change is upon the party who asserts it.” Todd v. Foster,
Here, it was the defendant who challenged the presumption by asserting that the plaintiff had changed her decade-long Massachusetts domicil to Florida and thus it was she who bore the burden of proving a change in domicil. This principle is not inconsistent with the rule that “[t]he burden is on the party asserting jurisdiction to prove jurisdictional facts.” Miller v. Miller,
The burden of production and persuasion shifts to the challenging spouse once the spouse seeking a divorce has made a showing of an existing domicil. Cf. Horvitz v. Commissioner of
Here, the defendant, contradicting her own admissions to jurisdictional facts set forth in her pleadings,
Findings. I have accepted all of the judge’s findings that have a basis in the evidence, as well as those that are not “clearly erroneous.” Kendall v. Selvaggio,
The finding that “[t]he marital bliss was so short lived that [the plaintiff] never got around to changing her [Massachusetts] vehicle or voter registrations, if she ever considered doing so at all,” has no foundation in the evidence and is purely conjectural.
Likewise, the judge’s conclusion that the parties intended to spend only their summers in Massachusetts rests on the defendant’s statement regarding her belief as to what the plaintiff knew (“she knew of my desire not to live in Massachusetts. And we were only going to spend summers in Massachusetts”). The finding that the defendant “was clear and unequivocal in her disclosures to [the plaintiff] during their courtship that she had no intentions of living in Massachusetts,” supports an inference regarding the defendant’s intent but not a conclusion that the plaintiff changed her domicil from Massachusetts to Florida. See Green v. Commissioner of Corps. & Taxn.,
The finding that the plaintiff had “closed a shop she operated in Massachusetts with the intention of opening a shop in Florida during the high season which runs from October through May each year,” is not warranted on evidence that the plaintiff sold her business in 2005, a year before the parties were married, nor on the defendant’s statement of what she thought they might do in the future (“we were going to open up a shop in Florida”). There was no evidence of the plaintiff’s view of these plans or
The finding that the parties “moved” to Florida appears to be based on the plaintiff’s testimоny that the parties went to Florida to the second home she was buying there and that she brought her car with her (which she then brought back to Massachusetts, as was her routine). In the context of uncontroverted testimony that the plaintiff maintained a home in Massachusetts and purchased a second home in Florida, where she routinely spent the winter months, the parties’ “move” is a neutral fact that does not meet the defendant’s burden of proving that the plaintiff changed her domicil. The fact that the plaintiff purchased a second home does not establish a change in domicil. The applicable rule as set forth in Restatement (Second) of Conflict of Laws § 20 is that where a person has “more than one dwelling place, his domicil is in the earlier dwelling place unless the dwelling place is his principal home.” See Tuells v. Flint,
Findings that find support in the evidence and bear on whether the plaintiff changed her domicil are summarized:
The parties were married in Truro on November 29, 2006. They lived as a married couple in Massachusetts for some days before departing for Florida. At the time of the marriage, the plaintiff resided in a home in Truro, which she purchased five and one-half years before the marriage and has continued to own since the marriage. Problems arose shortly after the marriage and the parties enrolled in couples’ counselling in Florida. For ten years preceding the filing of the divorce complaint, the plaintiff routinely made annual trips to Florida, ranging in duration from two to five months. The parties purchased a home in Nokomis, Florida, taking title jointly. The plaintiff is registered to vote in Massachusetts. Her vehicles are registered in Massachusetts. She filed a Massachusetts income tax return in 2006 (the year of her marriage).
These findings are insufficient to support the defendant’s burden to establish by a preponderance of the evidence that the plaintiff changed her domicil to Florida and thus do not support dismissal of the divorce complaints on that ground. “[F]urther
Though deference is due the judge’s credibility determination that discounted the plaintiff’s stated intent regarding domicil, there is a dearth of affirmative evidence of an intent to change her domicil and the objective evidence tends rather to support the plaintiff’s expressed intent to remain domiciled in Massachusetts.
I would remand for additional findings grounded in the evidence and for further consideration of the evidence in light of the defendant’s burden of establishing by a preponderance of the evidence that the plaintiff’s fixed Massachusetts domicil changed to Florida following the marriage.
For the foregoing reasons, I respectfully dissent.
The first complaint was filed June 27, 2007; the second was filed July 7, 2008.
The judge’s memorandum in support of her dismissal of the divorce complaint correctly cites G. L. c. 208, § 4, as the sole basis for a claim of jurisdiction over the parties’ divоrce. The relevant portion of the statute relied on by the judge provides: “A divorce shall not, except as provided in the following section, be adjudged ... 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.” (Emphasis added by the judge in her memorandum of decision.) The memorandum further cites G. L. c. 208, § 5: “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, ... a divorce may be adjudged for any cause allowed by law, unless it appears that the plaintiff hаs removed into this Commonwealth for the purpose of obtaining a divorce.” (Emphasis added by the judge in her memorandum of decision.)
Concluding that “[njeither party resided in Massachusetts at the time when the marriage allegedly became irretrievably broken,” and that the plaintiff “did not reside [in Massachusetts] for one year last preceding the commencement of the action,” the judge dismissed the plaintiff’s complaint for divorce as well as the defendant’s counterclaim for divorce. The decision is not based on a conclusion that the parties had never lived together as wife and wife in Massachusetts, and the judge makes no such finding. Indeed, the defendant’s answer does not deny the assertion in the plaintiff’s divorce сomplaint that “[t]he parties were married in Truro, Barnstable County, Massachusetts on November 29, 2006, [and] lived together as wife and wife in Truro, Barn-stable County, Massachusetts.”
That the plaintiff may now file for a divorce based on having resided here for over one year, does not render the matter moot. The court in Miller v. Miller,
Other jurisdictions have also placed the burden of proof to show a change in established domicil on the party who asserts it. See, e.g., Texas v. Florida,
In her answer and counterclaim to the first divorce complaint, the defendant admits that the plaintiff “maintains Massachusetts as her principal domicile.”
The majority notes that “the law presumes that spouses living together share the same domicil absent special circumstances,” ante at 170 n.6, and that this presumption may be overcome by a “declaration of choice of domicil” prior to the marriage. Here, at the time of the marriage there was an existing home in the Commonwealth that the plaintiff continued to own when she purchased a second home in Florida, and where the parties lived together, if briefly, following their marriage. The defendant also executed a “Notice of Intention of Marriage” form, which the parties were required to complete prior to being married in Massachusetts. G. L. c. 207, § 20. In that form, the defendant stated that she intended to reside in Massachusetts. The form no longer requires such a statement.
In addition to findings that are supported by competent evidence, the judge had before her at the hearing on the motion to dismiss and in connection with the motion to reconsider, this uncontroverted evidence: the plaintiff’s primary financial institutions have remained in Massachusetts; the plaintiff has no employment in Florida; the plaintiff owns two vehicles, a 2004 Toyota Sienna and a 1999 Toyota 4-Runner, both registered in Massachusetts; she uses a vehicle to get to and from Florida, but does not leave one there.