Cerutti-O'Brien v. Cerutti-O'Brien , 77 Mass. App. Ct. 166 ( 2010 )

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 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 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 (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 (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 (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 (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, 11 Allen 196, 199 (1865); Loker v. Gerald, 157 Mass. 42, 45 (1892); Corkum v. Clark, 263 Mass. 378, 386 (1928), wMch is not to say that the domicil of the husband must be that of the wife.⁵ See 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 (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:

“l.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

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 (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 that the evidence demonstrated the plaintiff’s intention to change her domicil and to discredit her claim to the contrary.

Furthermore, despite the evidence that the plaintiff did not change her voter or vehicle registrations and maintained ownership of her Truro residence, all factors potentially contributing to a determination of domicil under different circumstances, see Fiorentino v. Probate Ct., 365 Mass. 13, 22 n.12 (1974); Caffyn, 441 Mass. at 492, the judge found that the plaintiff had simply not gotten around to changing these registrations, perhaps as a result of the rapid breakdown of the marriage, and that the couple intended to use the Truro property as a summer residence.¹¹,¹² Significantly, the judge considered evidence that the plaintiff had entered the marriage fully aware of the fact that the defendant was adamant, making it clear from the outset, that she would not reside in Massachusetts because of the weather and her desire to be close to family in Florida. It was proper for the judge to find that the credible evidence supported the finding that the plaintiff changed her domicil to Florida once the parties were married. See Caffyn, 441 Mass. at 492-493. Consequently, the plaintiff satisfied the requirements of neither § 4 nor § 5 of G. L. c. 208, and her complaints were properly dismissed for lack of subject matter jurisdiction.¹³

Finally, we note that the plaintiff has apparently now satisfied the alternative one-year residency requirement of G. L. c. 208, § 5, and having now reestablished her domicil in Massachusetts “presumably may now file a proper divorce complaint under § 5 even if the ‘cause’ for divorce did not occur in Massachusetts.” Miller v. Miller, 448 Mass. 320, 325 n.9 (2007), quoting from Caffyn, 441 Mass. at 491 n.10. The plaintiff filed her first complaint for a divorce in Massachusetts in June, 2007, before she had returned from Florida. The plaintiff would have established her Massachusetts domicil and satisfied the one-year residency requirement by mid to late August, 2008, just weeks after filing her second complaint in July, 2008, which was also dismissed for lack of subject matter jurisdiction. The plaintiff has now had the ability to file a complaint for divorce, with proper subject matter jurisdiction, any time since August, 2008.

For the reasons stated above, the judgments are affirmed.

So ordered.

1 On October 9, 2009, we remanded this matter to the Probate and Family Court, granting the plaintiff “leave to file a complaint for divorce ... on or before November 10, 2009.” In accordance with what “she believed to be a mandatory directive from [this] court,” the plaintiff filed a third complaint for divorce. On November 20, 2009, we issued an “order and clarification” in which we stated that the October 9, 2009, order “was intended to be permissive” and that the filing and service of another complaint for divorce “would render the instant appeal moot.” The plaintiff responded to this court that she did “not wish to render the instant appeal moot.” We understand that the third complaint for divorce was dismissed for lack of service.

2 The judge’s findings specifically note that the plaintiff’s complaint alleged that the irretrievable breakdown of the marriage occurred in Florida.

3 It is not our role to interpret the evidence differently from the judge and certain principles of the well-established “clearly erroneous” test must be reiterated:

“First, the judge’s assessment of the quality of the testimony is entitled to our considerable respect because it is the trial judge who, by virtue of his firsthand view of the presentation of evidence, is in the best position to judge the weight and credibility of the evidence. Second, if the trial court’s account of the evidence is plausible in light of the record viewed in its entirety, the appellate court may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. Third, the burden is squarely on the appellant to show an appellate court that a finding is clearly erroneous.”

Edinburg v. Edinburg, 22 Mass. App. Ct. 199, 203-204 (1986) (quotations and citations omitted). It is with these established principles in mind that we evaluate the single question of domicil raised in the plaintiff’s appeal.

4 “A change of domicil takes place when a person with the capacity to change [her] domicil is physically present in a place and intends to make that place [her] home for the time at least.” Hershkoff v. Board of Registrars of Voters of Worcester, 366 Mass. 570, 576-577 (1974).

5 While it is true that common law required, by operation of law, that a married woman take the domicil of her husband, modifications of that common-law principle began very early in Massachusetts. See Harteau v. Harteau, 14 Pick. 181, 185-186 (1833). The fact that a married woman may establish a separate domicil from her husband in order to maintain a claim for divorce is not new law in Massachusetts. See Perkins v. Perkins, 225 Mass. 82, 85-86 (1916); Corkum, supra. Some authorities believe that “it is now clear that the married woman may acquire a domicile of choice apart from her husband as a matter of constitutional right.” Clark, The Law of Domestic Relations in the United States § 4.3, at 270 (2d ed. 1987). See Restatement (Second) of Conflict of Laws § 15 (1971). This principle would seem to be especially applicable here in Massachusetts where we have amended our State Constitution in order to guarantee equal gender rights. See art. 1 of the Massachusetts Declaration of Rights (“Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin”).

6 Restatement (Second) of Conflict of Laws § 21 comment b, at 85, explains that “there will be extremely rare situations where a wife who lives with her husband has a domicil apart from his.” The fact that we can interchange the phrase “spouse” for the phrases “husband” and “wife” where appropriate is obvious. It is therefore both practical and appropriate that the law presumes that spouses living together share the same domicil absent special circumstances. One such special circumstance, for example, is where a spouse executes an agreement prior to the marriage in which she states her intention to maintain her then current domicil as her domicil of choice and does not intend to assume her spouse’s domicil. See ibid.

7 The dissent cites to the principle that “[t]here is a presumption that once domicile is established it continues,” Kindregan & Inker, Family Law & Practice § 27.2, at 75, as the operative evidentiary presumption in this case and as militating against the judge’s entry of the judgment of dismissal. We are constrained to point out that the cases cited by the dissent in support of this presumption neither involve, nor even relate to, challenges to the court’s subject matter jurisdiction in divorce actions. See Commonwealth v. Davis, 284 Mass. 41 (1933) (action to recover income tax); Levanosky v. Levanosky, 311 Mass. 638 (1942) (action concerning the validity of an out-of-State marriage between two Massachusetts residents); Todd v. Foster, 328 Mass. 136 (1951) (action to collect on New York judgment for unpaid child support awarded pursuant to previously entered divorce judgment); Fortier v. Rogers, 44 Mass. App. Ct. 732 (1998) (postdivorce proceeding involving the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A [1994]); Horvitz v. Commissioner of Rev., 51 Mass. App. Ct. 386 (2001) (action for tax collection).

Simply put, while it may be an appropriate presumption that domicil continues once established in tax and contract cases, there is no authority for the proposition that the presumption of marital domicil has been abolished in Massachusetts. See Green v. Commissioner of Corps. & Taxn., 364 Mass. 389, 391-392 (1973) (acknowledging continued vitality of presumption of marital domicil in context of establishing jurisdiction for divorce actions). Even assuming that the presumption that domicil continues once established is applicable in this case, it is not inconsistent with the presumption of marital domicil and actually bolsters the judge’s decision here, as the plaintiff’s marital domicil, once established in Florida, is presumed to have continued there.

8 “A presumption does not shift the burden of proof; it is a rule of evidence that aids the party bearing the burden of proof in sustaining that burden by ‘throw[ing] upon his adversary the burden of going forward with evidence.’ ” Standerwick v. Zoning Bd. of Appeals of Andover, 447 Mass. 20, 34 (2006), quoting from Epstein v. Boston Hous. Authy., 317 Mass. 297, 302 (1944). See Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir. 1992). Significantly, in this case, even if we were to assume that the presumption of marital domicil has been abolished, the plaintiff would nevertheless be required to establish jurisdictional facts. A new presumption would only benefit the plaintiff, as the party having the ultimate burden of persuasion, by imposing upon the defendant a burden of production. Here the defendant has plainly satisfied that burden of production. The judge’s findings, therefore, would not have been clearly erroneous in any event.

9 The plaintiff’s apparent financial independence renders the closing of the business in 2005 and the intention to open another in the future less significant than it otherwise might be to our determination of domicil.

10 The dissent, post at 179 n.6, implies that the defendant made a declaration of domicil in Massachusetts, immediately prior to the marriage. The document referred to, however, is neither a declaration of domicil nor a declaration of separate domicil, but is the “Notice of Intention of Marriage” form. The defendant stated on the form that she intended to reside in the Commonwealth. It was then a prerequisite to being married here. (The law has since been changed.) Obviously, the defendant never intended to reside here and moved to Florida within a few days of being married. She also testified repeatedly that she never intended to reside in Massachusetts.

11 The couple’s marriage deteriorated very quickly after moving to Florida and the parties entered marriage counselling only months after the move. The problems only escalated as the couple began their legal battle in Florida (the subject and content of which is not before us). In light of these circumstances, the plaintiff’s failure to change her voter registration and driver’s license is not indicative of her intent to remain a Massachusetts domiciliary, and the judge’s finding to the contrary was reasonable and supported by the evidence. The dissent notes that the defendant made numerous assertions that the plaintiff was not a Florida resident with no social or professional ties to the area. However, these assertions were made in the context of attempts to gain control of the marital residence and support from the plaintiff once the marriage had already broken down, not before. At some point during the couple’s Florida legal battles, the courts of that State gave temporary exclusive use of the marital residence to the plaintiff.

12 It is not unusual for our courts to disregard such circumstantial evidence. For example, in Reiersen v. Commissioner of Rev., 26 Mass. App. Ct. 124, 131 (1988), despite the fact that the defendant maintained his American citizenship, used his Massachusetts address on his passport, owned a house in Massachusetts (and no property in the Philippines), and maintained a Massachusetts driver’s license and bank account, this court held that he was domiciled in the Philippines.

13 Assuming that the plaintiff had reestablished her domicil in Massachusetts after leaving Florida, following the breakdown of the marriage, subject matter jurisdiction would not be proper under the statutes because, upon filing her complaint, she had not yet met the one-year residency requirement, and the breakdown did not occur in the Commonwealth.