Rose v. Rose, 18-P-59

• Decision Date: 20 November 2019
• Docket Number: No. 18-P-59,18-P-59
• Citation: 96 Mass.App.Ct. 557,136 N.E.3d 408
• Parties: Rhitu Siddharth ROSE v. Alexander Stephane Gerard ROSE.
• Court: Appeals Court of Massachusetts

96 Mass.App.Ct. 557
136 N.E.3d 408

Rhitu Siddharth ROSE
v.
Alexander Stephane Gerard ROSE.

No. 18-P-59

Appeals Court of Massachusetts, Norfolk..

Argued May 15, 2019.
Decided November 20, 2019.

Robert Herrick, Springfield, for the wife.

Mikalen E. Howe, for the husband.

Present: Rubin, Desmond, & Ditkoff, JJ.

DESMOND, J.

96 Mass.App.Ct. 557

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, 806 N.E.2d 415 (2004).

96 Mass.App.Ct. 558

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, 806 N.E.2d 415.³ 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

136 N.E.3d 411

"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

96 Mass.App.Ct. 559

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

136 N.E.3d 412

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

96 Mass.App.Ct. 560

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.

Discussion. "We review de novo the allowance of a motion to dismiss for lack of subject matter jurisdiction under rule 12(b)(1)." 311 W. Broadway LLC v. Board of Appeal of Boston, 90 Mass. App. Ct. 68, 73, 56 N.E.3d 854 (2016). Here, because the wife conceded that the parties never lived together as spouses in Massachusetts and that

96 Mass.App.Ct. 561

the cause for divorce did not occur in Massachusetts, the wife was required to satisfy the one-year residency requirement of § 5 to maintain a divorce action in the Commonwealth.¹¹ Although residence is sometimes construed as the "practical equivalent of domicil," Shepard v. Finance Assocs. of Auburn, Inc., 366 Mass. 182, 190, 316 N.E.2d 597 (1974), we think the plain language of § 5 indicates the Legislature's intent to treat residence and domicil as distinct concepts for purposes of establishing subject matter jurisdiction over divorce actions.¹² The concept of domicil, as it is used in § 5, has been

136 N.E.3d 413

defined in our case law as the plaintiff's "actual residence with intention to remain permanently or for an indefinite time and without any certain purpose to return to a former place of abode." Caffyn, 441 Mass. at 492, 806 N.E.2d 415, quoting Fiorentino v. Probate Court, 365 Mass. 13, 17 n.7, 310 N.E.2d 112 (1974).¹³ Our appellate courts, however, have yet to define the parameters of the one-year residency requirement under § 5. It is therefore incumbent upon us to do so now.

Nearly every State, including Massachusetts, imposes a statutory durational residency requirement to ensure "that those who seek a divorce from its courts [are] genuinely attached to the

96 Mass.App.Ct. 562

State," and "to insulate [its] divorce decrees from the likelihood of collateral attack." Sosna v. Iowa, 419 U.S. 393, 404-405, 409, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Many State courts have construed their respective durational residency requirements as mandating an "actual" and "continuous" residence in the State during the required statutory period.¹⁴ Moreover, although "continuous" usually does not mean "literally uninterrupted," Allan v. Allan, 132 Conn. 1, 3 (1945), a...