Heard: May 15, 2019.
Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on May 30, 2017. A motion
to dismiss was heard by Virginia M. Ward, J.
Robert
Herrick for the wife.
Mikalen E. Howe for the husband.
Present: Rubin, Desmond, & Ditkoff, JJ.
DESMOND, J.
Where
parties to a divorce action have never lived together as
spouses in Massachusetts, [1] a divorce may not be adjudged unless
the plaintiff has satisfied either (1) the "one-year
residency requirement" under G. L. c. 208, § 5
(§ 5); or (2) the "alternative jurisdictional
requirements" of § 5, by proving that he or she was
domiciled in Massachusetts at the commencement of the divorce
action and the "cause" for divorce occurred within
Massachusetts. Caffyn v. Caffyn, 441 Mass. 487,
487-488 (2004). See § 5.[2] In Caffyn, the Supreme
Judicial Court was faced with the "question whether a
plaintiff in a divorce action who has not complied with the
one-year residency requirement . . . may, nevertheless,
satisfy the alternative jurisdictional requirements of §
5, by . . . claiming that the 'cause' for the
divorce, namely 'an irretrievable breakdown of the
marriage' under G. L. c. 208, § 1B, occurred in
Massachusetts." Caffyn, supra at
487.[3]
Here, we are faced with the opposite question: whether a
plaintiff, who concedes she has not met the "alternative
jurisdictional requirements" of § 5, as the
"cause" for divorce did not occur in Massachusetts,
may, nevertheless, satisfy the "one-year residency
requirement" of § 5 by claiming to be a
Massachusetts resident while working abroad.
This
appeal arises out of a divorce action commenced in the
Probate and Family Court by Rhitu Siddharth Rose (wife), a
citizen of both Canada and the United States who grew up in
Massachusetts, [4] against Alexander Stephane Gerard Rose
(husband), a French citizen. The parties, both of whom are
international officers for the United Nations (UN), are
assigned to missions all over the world. At both the time the
wife filed her complaint for divorce in Massachusetts and the
time that the cause for divorce occurred, both parties were
working abroad on separate UN missions. On November 29, 2017,
following a nonevidentiary hearing, a judge of the Probate
and Family Court dismissed the wife's complaint for
divorce due to lack of subject matter jurisdiction,
concluding, among other things, that the wife failed to meet
the one-year residency requirement of § 5.[5] The wife appeals
from the dismissal of her complaint, asserting that her
temporary work abroad did not change her ongoing status as a
Massachusetts resident.
We hold
that the one-year residency requirement of § 5 entails
an actual, continuous residence in the Commonwealth for
twelve consecutive months immediately prior to the
commencement of a divorce action, although certain temporary
absences from the Commonwealth will not affect the continuity
of a plaintiff's residence. The determination of whether
a plaintiff has maintained an actual, continuous residence in
the Commonwealth for purposes of satisfying the one-year
residency requirement is a question of fact to be decided on
a case-by-case basis. Because the judge in this case did not
have the benefit of our decision here, and no evidentiary
hearing was held below, we vacate the judgment of dismissal
and remand the matter for further proceedings consistent with
this opinion.
Background.
The
parties were married in New York on February 25, 2011. At
that time, the wife was living in New York in a rented
apartment, [6] and the husband was living in Haiti on a
UN assignment. In the summer of 2011, when the husband
learned he would soon be relocated to Lebanon, the parties
agreed that the wife would take time off from UN missions so
that she could move to Lebanon with the husband. In
anticipation of the upcoming overseas move, the wife vacated
her apartment in New York and moved into her parents'
home located in Holbrook. In December of 2011, the wife
joined the husband in Lebanon, where they resided together
until September of 2013, at which time the husband was
reassigned to Mali (where he currently resides). Soon
thereafter, the wife was assigned to Syria, [7] where she
remained until late April of 2017. During breaks in between
her missions in Syria, the wife traveled to other countries,
including the United States (staying in her parents' home
in Holbrook), Mali (visiting the husband in March of 2015),
India (visiting her relatives in December of 2016), and
England (visiting a friend in February of 2017). The husband
also traveled to the United States three times between
December of 2014 and May of 2015, joining the wife in
Holbrook for a total of twenty-four days. After the
wife's assignment in Syria concluded in late April of
2017, she briefly returned to her parents' home in
Holbrook before accepting a new assignment in Switzerland on
April 28, 2017.
The
husband filed a petition for divorce in France on April 25,
2017, notifying the wife of the French divorce proceedings
via e-mail the same day. On May 26, 2017, the wife, through
counsel, filed a complaint for divorce in the Probate and
Family Court, alleging that an irretrievable breakdown of the
marriage had occurred on January 20, 2017, while neither
party was physically present in Massachusetts.[8] The wife listed
her parents' home in Holbrook as her address on the
complaint. On July 3, 2017, a deputy sheriff attempted to
serve the husband's petition for divorce on the wife at
her parents' Holbrook address; however, the deputy was
informed by "[t]he individual who answered" the
door "that the [w]ife had moved to New York, works for
the [UN], and [did] not live at that residence."
On July
20, 2017, the husband's counsel filed a motion, pursuant
to Mass. R. Dom. Rel. P. 12(b) (1), (2), [9] seeking to
dismiss the wife's complaint for divorce on the grounds
of (1) lack of subject matter jurisdiction, (2) lack of
personal jurisdiction over the husband, and (3) the pending
divorce proceedings in France initiated prior to the
Massachusetts proceedings. Following a nonevidentiary
hearing, [10] the judge dismissed the wife's
complaint due to lack of subject matter jurisdiction,
concluding that the wife had failed to meet the one-year
residency requirement of § 5 because she was
"physically living in Switzerland" when the
complaint was filed. On appeal, the wife argues that she has
been a Massachusetts resident since 2011 and that the judge
erroneously concluded that she ceased to be a Massachusetts
resident when temporarily working abroad.
D ...