Cerutti-o'brien v. Cerutti-o'brien

• Decision Date: 01 July 2010
• Docket Number: No. 08-P-2078.,08-P-2078.
• Parties: Francesca CERUTTI-O'BRIENv.Donna-Marie CERUTTI-O'BRIEN.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 166
928 N.E.2d 1002

Francesca CERUTTI-O'BRIEN
v.
Donna-Marie CERUTTI-O'BRIEN.

No. 08-P-2078.

Appeals Court of Massachusetts,
Barnstable.

Argued May 18, 2009.
Decided July 1, 2010.

928 N.E.2d 1003

E. James Veara, for the plaintiff.

Donna M. Robertson, West Yarmouth, for the defendant.

Present: DUFFLY, TRAINOR, & GRAHAM, JJ.

TRAINOR, J.

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 in Florida and the plaintiff lived in Massachusetts. During the couple's courtship, the defendant made it clear that she would not live in Massachusetts, desiring to be close to her family in Florida and being averse to the Commonwealth's colder climate. About four days after the marriage ceremony, the parties moved to Florida.

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

928 N.E.2d 1004

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 the 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 considered doing so. On May 23, 2008, the plaintiff filed a notice of appeal from the judgment of dismissal and the order denying her motion for reconsideration.

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.¹

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

928 N.E.2d 1005

the parties were living in Florida.² The sole issue on appeal is whether the plaintiff was continuously domiciled in Massachusetts so as to satisfy the requirements of § 4 or § 5 of c. 208 at the time she filed her two complaints.

The issue of the plaintiff's domicil presented “a question of fact for the trial judge.” Caffyn v. Caffyn, 441 Mass. 487, 492, 806 N.E.2d 415 (2004). We review the judge's findings of fact only to determine whether they are clearly erroneous.³ See Kendall v. Selvaggio, 413 Mass. 619, 620, 602 N.E.2d 206 (1992). At the outset, it is important to point out that, consistent with the case law concerning the burden of persuasion under Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), see Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n. 2, 766 N.E.2d 820 (2002), “[t]he burden of establishing domicile ^[4] in order to obtain a divorce in Massachusetts is on the plaintiff.” Kindregan & Inker, Family Law & Practice § 27:2, at 73 (3d ed.2002). See Field v. Field, 236 Mass. 256, 258, 128 N.E. 9 (1920) (divorce action properly dismissed because plaintiff not domiciled in Massachusetts).

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, 115 Mass. 438, 447 (1874), see Hood v. Hood, 93 Mass. 196, 11 Allen 196, 199 (1865); Loker v. Gerald, 157 Mass. 42, 45, 31 N.E. 709 (1892); Corkum v. Clark, 263 Mass. 378, 386, 161 N.E. 912 (1928), which is not to say that the domicil of the husband must be that of the wife.⁵ See

928 N.E.2d 1006

Watkins v. Watkins, 135 Mass. 83, 85-86 (1883) (husband may establish domicil apart from his wife); Corkum, supra; Katz v. Katz, 330 Mass. 635, 639, 116 N.E.2d 273 (1953) (“wife may acquire a domicil apart from her husband”). As a practical matter and in light of changing constitutional norms, the rule simply means that domicil is presumed to follow the marital residence, i.e., that married couples live together. See Restatement (Second) of Conflict of Laws § 21 (1971), which defines domicil of wife as follows:

“1. 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 presumption that, when she moved to Florida and established a marital residence there with the defendant, her domicil changed from the Commonwealth to Florida.^{7, 8}

928 N.E.2d 1007

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, 284 Mass. 41, 49-51, 187 N.E. 33 (1933) (“[t]estimony as to intention is not conclusive.... The credibility of witnesses is ordinarily entirely for the [factfinder]”). There was ample evidence negating the plaintiff's expressed intention. The plaintiff and the defendant moved to Florida within four days after being married, and not long after, purchased a home there, taking title jointly, under a special residency provision of Florida property law. The plaintiff had traveled to Florida many times over many years, but had never purchased property until she married the defendant and moved there with her. Additionally, prior to the parties' marriage, the plaintiff, in 2005, closed her shop in Massachusetts. While there was evidence that the couple intended to open a new shop in Florida, there was no evidence suggesting the plaintiff intended to open another shop in Massachusetts.⁹

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.¹⁰ The plaintiff's post facto and self-serving declaration to the contrary does not carry significant weight under the unusual factual circumstances of this case. Neither do the circumstantial indicia of the plaintiff's connection to Massachusetts after the marriage because of the rapid deterioration of the marriage and the plaintiff's extraordinary degree of financial independence. It was reasonable, and certainly not erroneous, for the judge to conclude

928 N.E.2d 1008

that the evidence demonstrated the plaintiff's intention to change her domicil and to...