Miller v. Miller

• Decision Date: 09 February 2007
• Parties: Naomi J. MILLER v. Hugh S. MILLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

861 N.E.2d 393

448 Mass. 320

Naomi J. MILLER v. Hugh S. MILLER.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued November 9, 2006.

Decided February 9, 2007.

Jacqueline Y. Parker (Susan Klueppel, Wayland, with her) for the husband.

Carol Booth, Amherst (Linda S. Fidnick with her) for the wife.

Thomas F. Reilly, Attorney General, & Marilyn Ray Smith, Special Assistant Attorney General, for Department of Revenue, child support enforcement division, amicus curiae, submitted a brief.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

IRELAND, J.

We transferred this case from the Appeals Court to consider a reported question from a judge in the Probate and Family Court whether her interlocutory ruling that the court had personal jurisdiction over the defendant husband pursuant to G.L. c. 223A, § 3(g), was proper.¹ The husband lives in Arizona and the wife lives in Massachusetts. Because we conclude that the statute's plain language does not require that a husband and wife both be domiciled in the Commonwealth at the time an act giving rise to a claim for divorce occurs, and that the requirements of due process have been met in this case, the judge properly found that the wife has met her burden to prove that the court has personal jurisdiction over the husband. We also conclude that the court has subject matter jurisdiction over the case. Accordingly, we remand the case for further proceedings consistent with this opinion.

1. Facts and procedural history. We accept as true the essential uncontroverted facts that were before the judge. Heins v. Wilhelm Loh Wetzlar Optical Mach. GmbH & Co. KG., 26 Mass.App.Ct. 14, 16, 522 N.E.2d 989 (1988), citing Carlson Corp. v. University of Vt., 380 Mass. 102, 104 n. 4, 402 N.E.2d 483 (1980).

The parties were married in New Jersey in 1979. They lived in Massachusetts from sometime after their marriage until 1989, when they moved to Arizona. She is a professor and he is a physician. The parties have four children, two of whom were born before they moved to Arizona.

Because of a health problem, the wife had to move from Arizona. The wife accepted employment at Smith College in May, 2004, and moved with the children to Northampton in August, 2004. The wife filed for divorce in February, 2005, pursuant to G.L. c. 208, § 1B,² stating in her complaint that an irretrievable breakdown of the marriage occurred in November and December, 2004.

The husband filed a motion to dismiss pursuant to Mass. R. Dom. Rel. P. 12(b), on grounds that the court lacked both subject matter and personal jurisdiction. The facts in the husband's motion to dismiss were verified. In opposition to the motion to dismiss, the wife submitted a signed affidavit and various documents showing that the husband, inter alia, had looked for houses for sale in Northampton and Amherst with the wife, signed various documents enrolling their children in schools in Northampton,³ and signed forms to open a safe deposit box and a joint checking account with the wife, and that two of the family automobiles were registered and insured in his name in Massachusetts. The wife rented a house from Smith College, which she and the husband viewed together, in her name only. The husband requested a key that was provided to him in the fall of 2004.⁴ Moreover, the husband interviewed for positions in Massachusetts, New York, and Connecticut.

The husband and wife hosted a going away party for the family before they left Arizona. In her affidavit, the wife also stated that in July, 2004, after she had accepted the position at Smith College, the family took a trip to Europe. In addition, she averred that during the husband's numerous visits to Massachusetts, they lived together as husband and wife until December, 2004. The wife stated that "after December 2004 I understood our marriage to be `irretrievably broken.'"

The wife also submitted two affidavits by third parties. One affiant stated that because she was aware that the husband had interviewed for a position at Bay State Medical Center in Springfield, she and the husband discussed various medical practices he was considering joining, as well as commuting issues involved. The husband also told her that he hoped to move to New England "before early winter." The other affiant stated that she saw the husband and wife on three occasions between June and December, 2004. She stated that the husband talked to her about his job interviews in New England, his hope to rejoin his family by the fall of 2004, and the fact that, in December, 2004, both the husband and wife were excited that they found a buyer for their home in Arizona.⁵

In May, 2005, the judge held a nonevidentiary hearing on the husband's motion to dismiss. She found that the court had subject matter jurisdiction pursuant to G.L. c. 208, § 4, because the wife determined that the marriage was irretrievably broken down while she was domiciled in Massachusetts. However, the judge stated that according to the holding in Windsor v. Windsor, 45 Mass.App.Ct. 650, 700 N.E.2d 838 (1998), the court did not have personal jurisdiction because the claim for divorce did not arise while the parties were maintaining a marital domicil in Massachusetts.

The judge amended her initial findings three times between August and November, 2005, in response to motions to alter and amend the judge's findings and oppositions thereto that the wife and husband filed. In addition, because the judge determined that the court had jurisdiction to hear all matters relating to the care and custody of the minor children, G.L. c. 209B, the husband filed a motion for custody of the children and submitted a supporting affidavit, which was unsigned.⁶ No evidentiary hearing was held nor does it appear from the record that any other hearing was held after May, 2005. It is the judge's further amended findings of November, 2005, on which her report is based.

In making her further amended findings, the judge relied on the wife's affidavit, which reported the content of conversations the wife claimed she had with the husband in Massachusetts, as well as an electronic mail message (e-mail) the husband sent to the wife in March, 2005 (i.e., after the wife filed for divorce). The wife reported that in November, 2004, the husband was upset at her "wrongfully assuming the mantle of the family authority and decision-maker, and that her actions were `violating God's will.'" In December, 2004, the wife refused to share a marital bed with the husband and when she asked how he could, in his criticism of her, disregard her medical needs, he told her that he believed that they were "irrelevant" and it was then that the wife reported that she "fully understood that [the] marriage had suffered an `irretrievable breakdown.'" The judge also found that the husband's assertion that the marriage irretrievably broke down in Arizona was not credible given the e-mail he sent to the wife in March, 2005, in which he asked her to reconsider her decision to go forward with the divorce and stated that he believed they should reconcile.

The judge found that the cause for divorce occurred in Massachusetts. The judge also found that the wife changed her domicil from Arizona to Massachusetts but the husband did not, although he may have intended to do so through his efforts to obtain employment and join his family.

In addressing whether the court had personal jurisdiction over the husband, the judge discussed the holdings in Akinci-Unal v. Unal, 64 Mass.App.Ct. 212, 832 N.E.2d 1 (2005), cert. denied, ___ U.S. ___, 126 S.Ct. 2888, 165 L.Ed.2d 916 (2006),⁷ and Windsor v. Windsor, 45 Mass. App.Ct. 650, 700 N.E.2d 838 (1998), and stated that although the court in the Unal case stated that its decision was not inconsistent with the Windsor decision, she was unable to determine which Appeals Court precedent applied to the circumstances of this case. The judge stated that, although the parties could challenge personal jurisdiction after the entry of final judgment, she decided to report the question about personal jurisdiction, pursuant to G.L. c. 215, § 13, and Mass. R. Dom. Rel. P. 64, because she concluded that it would be unfair to both parties to make them go through a "protracted and expensive litigation" first. See Cepeda v. Kass, 62 Mass. App.Ct. 732, 739-740, 819 N.E.2d 979 (2004) (in deciding motion to dismiss for lack of personal jurisdiction, court has discretion to determine personal jurisdiction by preponderance of evidence without waiting for trial on merits). For purposes of the report the judge ruled that the court "shall exercise personal jurisdiction over [the husband]." She also stayed all proceedings.

2. Discussion.⁸ Although the sole question reported concerns whether the Probate and Family Court has personal jurisdiction over the husband, we also address the husband's request that we consider whether the judge was correct in determining that the court had subject matter jurisdiction over the case, as it would be a waste of judicial resources for that issue to remain unresolved. See ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607, 729 N.E.2d 282 (2000) (party may raise subject matter jurisdiction at any time); Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812, 429 N.E.2d 329 (1981) (courts have "both the power and the obligation to resolve problems of subject matter jurisdiction whenever they become apparent"). Both parties have briefed this threshold issue.

The burden is on the party asserting jurisdiction to prove jurisdictional facts. See Caffyn v. Caffyn, 441 Mass. 487, 491, 806 N.E.2d 415 (2004) (subject matter jurisdiction); Good Hope Indus., Inc. v. Ryder Scott Co., 378 Mass. 1, 3, 389 N.E.2d 76 (1979) (personal jurisdiction).

a. Subject matter jurisdiction. The judge found that the court had subject matter jurisdiction pursuant to G.L. c. 208, §§ 4 and 5. Section 4 provides, in relevant part, that a divorce may...