(Lawyers Weekly Issue, "This Week's Decisions" 12/2/19)
Where a Probate & Family Court judge dismissed a complaint for divorce due to lack of subject matter jurisdiction, a remand is necessary for a determination of whether the plaintiff wife maintained in an actual, continuous residence in the commonwealth for 12 consecutive months immediately prior to the commencement of the divorce action.
"Where parties for a divorce action have never lived together as spouses in Massachusetts, a divorce may not be adjudged unless the plaintiff has satisfied either (1) the 'one-year residency requirement' under G.L.c. 208, S5 (S5); or (2) the 'alternative jurisdictional requirements' of S5, 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 (2004). ...
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, neverless, satisfy the alternative jurisdictional requirements of S5, by ...claiming that the 'cause' for the divorce, namely 'an irretrievable breakdown of the marriage' under G.L.c. 208, S1B, occurred in Massachusetts.' ...Here, we are faced with the opposite question: whether a plaintiff, who concedes she has not met the 'alternative jurisdictional requirements' of S5, as the 'cause' for divorce did not occur in Massachusetts, may, nevertheless, satisfy the 'one-year residency requirement' of S5 by claiming to be a Massachetts resident while working abroad.
"This appear 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, against Alexander Stephane Gerard Rose (husband), a French citizen. The parties both of whom are international officers for the United Nations (UN), are assigned in missions all over the world. At both the time the wife filed her complaint for divorce in Massachusetts and the time that the cuase 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 S5. The wife appeals from the dismissal of her complaint, asserting that her temporary work abroad did not change her ongoing status as a Massachusetts resident.
"We hold that the one-year residency requirement of S5 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 judgement of dismissal and remand the matter for further proceedings consistent with this opinion."
