Fiorentino v. Probate Court

Decision Date29 March 1974
Citation365 Mass. 13,310 N.E.2d 112
Parties. Carmen FERNANDEZ v. Guillermo FERNANDEZ. Supreme Judicial Court of Massachusetts, Suffolk
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

F. Robert Houlihan, Brookline (Gershon M. Ratner, Boston, with him), for Carmen Fernandez.

Sumner D. Goldberg, Boston, for Lucio Fiorentino.

Raymond H. Young, Special Asst. Atty. Gen., for the Probate Court and others.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

These cases, argued together, present challenges to the constitutionality of our statutes which, in certain circumstances, require that a person be a resident of Massachusetts for two years before a libel for divorce may be filed. G.L. c. 208, §§ 4, 5. 1 This two year durational residence requirement has recently been declared unconstitutional by the United States District Court, District of Massachusetts, Rosado v. Smith (Civil Action No. 72--3361--W), 2 a decision which, while entitled to our respect, is not binding on us. United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970), cert. den. sub nom. Lawrence v. Woods, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971).

The libellant 3 in each of these cases was married in the State of New York, lived together with his or her spouse in that State, and moved to Massachusetts only after the alleged cause of divorce had occurred in New York. Lucio Fiorentino moved to Massachusetts on April 1, 1972. On December 13, 1972, the Probate Court for Suffolk County granted him a decree that he was living apart from his wife for justifiable cause. On April 10, 1973, Fiorentino executed and attempted to file in the Probate Court a libel for divorce. The court refused to accept the libel since the alleged cause of divorce occurred outside of Massachusetts and Fiorentino had not resided in the Commonwealth for the two years required by the statute. Fiorentino then filed a petition for mandamus to compel the judges of the Probate Court to accept the libel. After hearing, a single justice of this court, at the request of the parties, reserved and reported the case without decision to the full court. 4

Carmen Fernandez moved to Massachusetts in September, 1971. 5 In the fall of 1972 shd filed a libel for divorce in the Probate Court for Suffolk County. Confronted with the libellant's challenge to the constitutionality of the two-year residence requirement, the probate judge reported the case to the Appeals Court. 6 The case is before us on direct appellate review. G.L. c. 211A, § 12, inserted by St.1972, c. 740, § 1.

The statutes under challenge operate to define and limit the jurisdiction of the courts of Massachusetts to grant divorces. Old Colony Trust Co. v. Porter, 324 Mass. 581, 586, 88 N.E.2d 135 (1949). General Laws c. 208, § 4, forbids the granting of a divorce in two situations: where the parties have never lived together as husband and wife in Massachusetts, and where the legal cause of the divorce occurred outside of this Commonwealth. There are certain exceptions to these basic rules. Even if the parties had not lived here as husband and wife, a divorce may be decreed if the cause occurred within Massachusetts and the libellant lives here when the libel is filed. § 5. Also, if the cause occurred elsewhere a divorce may be decreed by Massachusetts courts if the parties had lived together as husband and wife in Massachusetts prior to the occurrence of such cause and one of them lived here at the time the cause occurred. § 4. Finally, in the same situation of a cause occurring elsewhere, a divorce may be decreed if the libellant has lived in Massachusetts for two years before filing the libel. § 5. Thus, the two-year residence requirement applies only to those divorce libellants who rely on a cause of action which occurred outside of Massachusetts and which did not affect a marriage previously existing in the Commonwealth.

These statutory restrictions on the divorce powers of Massachusetts courts were presumably intended to prevent the bringing of migratory causes of action in Massachusetts courts and to ensure the validity (i.E., full faith and credit in other jurisdictions) of the decrees of Massachusetts courts against collateral attack by limiting proceedings in divorce actions to situations where the Commonwealth has some substantial connection with the dispute being adjudicated. In the typical case these interests are served by the court's refusing to proceed unless it has personal jurisdiction over both parties to a dispute (in personam jurisdiction) or it has jurisdiction over the thing, or res, that is the subject of a dispute (in rem jurisdiction). Jurisdiction over causes of action for divorce, however, is strictly neither in personam nor in rem. Williams v. North Carolina, 317 U.S. 287, 297, 63 S.Ct. 207, 87 L.Ed. 279 (1942). 'Under our system of law, judicial power to grant a divorce--jurisdiction, strictly speaking--is founded on domicil.' Williams v. North Carolina, 325 U.S. 226, 229, 65 S.Ct. 1092, 1095, 89 L.Ed. 1577 (1945). See Shaw v. Shaw, 98 Mass. 158 (1867). Thus, it is established that State courts may exercise divorce jurisdiction based solely on the domicil 7 of the libellant even if the libellee neither appears nor is personally served and even though the parties never resided as husband and wife in the forum State. Williams v. North Carolina, 317 U.S. 287, 298--299, 63 S.Ct. 207, 87 L.Ed. 279 (1942). In such a case, however, it is essential that the libellant's claim to domiciliary status in the forum State be a legitimate one; otherwise, the court's power to dissolve the marriage is a mere chimera vulnerable to collateral attack in another jurisdiction. Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945). Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366 (1903). Cohen v. Cohen, 319 Muss. 31, 64 N.E.2d 689 (1946).

It may be because jurisdiction founded solely on the libellant's domicil was thought to be so fragile that the Legislature has imposed the two-year residence requirement of G.L. c. 208, § 5. In effect, however, § 5 creates an irrebuttable presumption that a divorce libellant is not a domiciliary of Massachusetts until he or she has resided in the Commonwealth for at least two years. Such a presumption surely serves to protect the divorce courts of Massachusetts from actions based on fraudulent claims of domicil by temporary residents. The present libellants insist, however, that it also operates to deprive domiciliaries such as themselves, 8 namely, those who have resided here for less than two years, of their constitutional rights of due process and equal protection. 9 We hold that the two-year residence requirement does work a deprivation of equal protection in these cases and, therefore, that it was unconstitutional to bar these libellants from prosecuting their divorce libels solely on the ground that they were not two-year residents of Massachusetts.

The two-year residence requirement operates to classify Massachusetts domiciliaries into two groups based on length of residence and to treat those groups quite differently with respect to access to divorce courts. Under recent United States Supreme Court decisions classifications based on length of residence are constitutionally suspect because they burden the 'fundamental' right to travel by penalizing new arrivals in a State relative to longer-term residents of that State. Shapiro v. Thompson, 394 U.S. 618, 89 L.Ct. 1322, 22 L.Ed.2d 600 (1969). Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Memorial Hosp. v. Maricopa County,--- U.S. ---, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). In the Dunn case the Supreme Court overturned Tennessee statutes which barred persons from registering to vote (and thus from voting) who had not resided in the State for at least one year and in the county of registration for three months. Because those durational residence requirements both penalized persons on the basis of recent travel and also denied a fundamental political right (voting), the court held that they could not stand absent a showing by the State that it had a compelling interest in imposing the requirement. Likewise, in the cases before us the two-year residence requirement penalizes persons merely because they have recently traveled interstate. 10 In addition, the benefit withheld by the requirement (i.e., access to the divorce courts) is one that merits constitutional protection. See Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Therefore, as was said in the Dunn case, '(W)hether we look to the benefit withheld by the classification . . . or the basis for the classification . . . we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.' 405 U.S. at 335, 92 S.Ct. at 999 (1972).

We believe that the Commonwealth does have a substantial and compelling reason in these cases. Certainly its interest in protecting its courts from fraudulent invocations of their jurisdiction is sufficient reason for imposing requirements aimed at ensuring that divorce libels are brought only by legitimate domiciliaries of Massachusetts. This is not enough, however, to save the two-year residence requirement. The Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States requires not only that there be a compelling State interest for a classification based on length of residence, but also that the classification be precisely tailored to achieve its legitimate objection and that there be no alternative, less burdensome, means to achieve the State's goal. Dunn v. Blumstein, 405 U.S. at 343, 92 S.Ct 995 (1972). Memorial Hosp. v. Maricopa County, --- U.S. ---, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). The issue, therefore, comes down to this: Is the durational...

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