FRANCESCA CERUTTI-O'BRIEN vs. DONNA-MARIE CERUTTI-O'BRIEN.

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

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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

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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. [Note 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. [Note 2] The sole issue on appeal is whether the plaintiff was continuously domiciled in Massachusetts so as to satisfy the

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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. [Note 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 [Note 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.

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Clark, 263 Mass. 378, 386 (1928), which is not to say that the domicil of the husband must be that of the wife. [Note 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:

"1. 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." [Note 6]

Here, the plaintiff (1) bore the burden of persuading the judge of her Massachusetts domicil, and (2) had to rebut the presumption

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that, when she moved to Florida and established a marital residence there with the defendant, her domicil changed from the Commonwealth to Florida. [Note 7], [Note 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

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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. [Note 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. [Note 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

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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. [Note 11], [Note 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

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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. [Note 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.

DUFFLY, J. (dissenting). Before us is a consolidated appeal from the dismissal of two divorce complaints filed by the plaintiff, [Note Duffly-1] and from the denial of her motion for reconsideration.

The initial divorce complaint (and the defendant's counterclaim for divorce) was dismissed for lack of subject matter jurisdiction pursuant to the defendant's oral motion, lodged on the first day of trial. The Probate and Family Court judge considered the pleadings, as well as testimony and documentary

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evidence submitted by the parties, in coming to her conclusion that, because the marital breakdown occurred in Florida, Massachusetts does not have subject matter jurisdiction. The plaintiff's motion to reconsider was denied. The second complaint was likewise dismissed.

The judge's decision focuses on the requirement in G. L. c. 208, § 4, that one of the parties to the marriage must have "lived in this Commonwealth at the time the cause [of the breakdown] occurred." [Note Duffly-2], [Note Duffly-3] The parties agree that the marriage breakdown occurred in Florida. The judge's determination, that "[t]he credible evidence supports a finding that upon marriage the parties intended to make Florida their permanent residence," focuses on evidence of whether the plaintiff changed her domicil

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from Massachusetts to Florida following the marriage and appears to impose on the plaintiff the burden of establishing that she did not change her Massachusetts domicil.

Some of the findings are not supported by the evidence and the findings that are supported do not establish that the plaintiff changed her domicil from Massachusetts to Florida. It has long been established in a variety of substantive areas that when there is a claim that a fixed domicil has been changed, the burden of production and persuasion is on the one asserting the change. I would remand for new findings and consideration of the evidence in light of the applicable burden of proof.

Burden of establishing changed domicil. It is not disputed that at the time of the parties' marriage, the plaintiff had been a long-time domiciliary of the Commonwealth. "There is a presumption that once domicile is established it continues." Kindregan & Inker, Family Law & Practice § 27.2, at 75 (3d ed. 2002). See Labonte v. Labonte, 210 Mass. 319, 320-321 (1911).

Once a domicil is established, "the burden of showing a change is upon the party who asserts it." Todd v. Foster, 328 Mass. 136, 138 (1951) (in case involving collection of support arrears, defendant former husband asserted change in domicil; he failed to meet his burden of rebutting presumption that his established domicil continued). See Levanosky v. Levanosky, 311 Mass. 638, 642 (1942) (burden on libellant to establish "existence of an intent at the time of the marriage not to continue to have a domicil in this Commonwealth"); McMahon v. McMahon, 31 Mass. App. Ct. 504, 507-508 (1991). See also Commonwealth v. Davis, 284 Mass. 41, 49 (1933) (domicil of origin is "presumed to have continued in the absence of compelling evidence that it was changed. The burden of proof that his domicil was changed rested on the defendant because he is the one who asserted that such change had taken place"); Mellon Natl. Bank & Trust Co. v. Commissioner of Corps. & Taxn., 327 Mass. 631, 638 (1951) (general rule that burden of showing a change of domicil is on party asserting the change); Horvitz v. Commissioner of Rev., 51 Mass. App. Ct. 386, 394 (2001) (same); Restatement (Second) of Conflict of Laws § 19 comments a and c, at 78 (1971) ("A domicil, once established, continues until a new one is acquired. . . . The burden of proof is on the

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party who asserts that a change of domicil has taken place"). Cf. Fortier v. Rogers, 44 Mass. App. Ct. 732, 734 n.4 (1998), quoting from McDougald v. Jensen, 786 F.2d 1465, 1483 (11th Cir.), cert. denied, 479 U.S. 860 (1986) (noting that Massachusetts jurisdiction lacking where plaintiff wife failed to prove husband's lack of domicil in Florida and "under Florida law, one's domicil, once properly established, is presumed to continue and the burden of proof ordinarily rests on the party asserting the abandonment of one domicil to demonstrate the acquisition of another"). [Note Duffly-4]

Here, it was the defendant who challenged the presumption by asserting that the plaintiff had changed her decade-long Massachusetts domicil to Florida and thus it was she who bore the burden of proving a change in domicil. This principle is not inconsistent with the rule that "[t]he burden is on the party asserting jurisdiction to prove jurisdictional facts." Miller v. Miller, 448 Mass. 320, 325 (2007), citing Caffyn v. Caffyn, 441 Mass. 487, 491 (2004). Neither Miller, supra, nor Caffyn, supra, depend on a showing of changed domicil to support jurisdiction. The issue of a change in a long-established domicil is not presented where jurisdiction is being asserted by "migratory divorce seekers," Fiorentino v. Probate Ct., 365 Mass. 13, 21 (1974), who might fraudulently claim to have acquired a recent domicil in Massachusetts in order to obtain a divorce within the Commonwealth. In such a case, "[t]he burden of establishing domicile in order to obtain a divorce in Massachusetts is on the plaintiff." Kindregan & Inker, supra at 73, citing Field v. Field, 236 Mass. 256, 258 (1920). That is not the situation here.

The burden of production and persuasion shifts to the challenging spouse once the spouse seeking a divorce has made a showing of an existing domicil. Cf. Horvitz v. Commissioner of

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Rev., supra at 395 (where taxpayer has made showing of existing domicil, burden shifts to commissioner not only to produce evidence of change "but to persuade"). The plaintiff met her initial burden by asserting facts that established her Massachusetts domicil; upon the defendant's challenge to jurisdiction based on a change in domicil, the burden shifted to the defendant to prove that a change occurred.

Here, the defendant, contradicting her own admissions to jurisdictional facts set forth in her pleadings, [Note Duffly-5] claims that the plaintiff had changed her domicil to Florida, challenging the Commonwealth's power to adjudicate a divorce within the Commonwealth. "Divorce, like marriage, is of concern not merely to the immediate parties. It affects personal rights of the deepest significance. It also touches basic interests of society. Since divorce, like marriage, creates a new status, every consideration of policy makes it desirable that the effect should be the same wherever the question arises." Williams v. North Carolina, 325 U.S. 226, 230 (1945). In the context in which the attack on jurisdiction arose in this case, the burden was on the defendant to prove that the plaintiff, who unquestionably was a Massachusetts domiciliary at the time of the marriage here, changed her domicil to Florida. The findings and evidence on which they rest must be reviewed in this light.

Findings. I have accepted all of the judge's findings that have a basis in the evidence, as well as those that are not "clearly erroneous." Kendall v. Selvaggio, 413 Mass. 619, 620 (1992). Findings based on conjecture and on the defendant's opinions or beliefs should be disregarded. See Gladstone v. Treasurer & Receiver Gen., 337 Mass. 48, 51 (1958) ("a guess or conjecture in the form of a conclusion from basic facts that do not tend toward that conclusion has no evidential value"). Several findings fall in this category.

The finding that "[t]he marital bliss was so short lived that [the plaintiff] never got around to changing her [Massachusetts] vehicle or voter registrations, if she ever considered doing so at all," has no foundation in the evidence and is purely conjectural.

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Moreover, any inference that the plaintiff "never got around" to changing these objective indicia of her Massachusetts domicil does not meet the defendant's burden to establish that the plaintiff had changed that domicil to Florida. What was needed was affirmative evidence of a change, not the absence of a change.

Likewise, the judge's conclusion that the parties intended to spend only their summers in Massachusetts rests on the defendant's statement regarding her belief as to what the plaintiff knew ("she knew of my desire not to live in Massachusetts. And we were only going to spend summers in Massachusetts"). The finding that the defendant "was clear and unequivocal in her disclosures to [the plaintiff] during their courtship that she had no intentions of living in Massachusetts," supports an inference regarding the defendant's intent but not a conclusion that the plaintiff changed her domicil from Massachusetts to Florida. See Green v. Commissioner of Corps. & Taxn., 364 Mass. 389, 391-395 (1973) (New Hampshire woman remained domiciliary of that State for the five months she continued to reside there following marriage to Massachusetts man); Miller v. Miller, 448 Mass. at 327 (no requirement that husbands and wives occupy the same home). [Note Duffly-6]

The finding that the plaintiff had "closed a shop she operated in Massachusetts with the intention of opening a shop in Florida during the high season which runs from October through May each year," is not warranted on evidence that the plaintiff sold her business in 2005, a year before the parties were married, nor on the defendant's statement of what she thought they might do in the future ("we were going to open up a shop in Florida"). There was no evidence of the plaintiff's view of these plans or

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that the parties took any steps toward starting a new business in Florida.

The finding that the parties "moved" to Florida appears to be based on the plaintiff's testimony that the parties went to Florida to the second home she was buying there and that she brought her car with her (which she then brought back to Massachusetts, as was her routine). In the context of uncontroverted testimony that the plaintiff maintained a home in Massachusetts and purchased a second home in Florida, where she routinely spent the winter months, the parties' "move" is a neutral fact that does not meet the defendant's burden of proving that the plaintiff changed her domicil. The fact that the plaintiff purchased a second home does not establish a change in domicil. The applicable rule as set forth in Restatement (Second) of Conflict of Laws § 20 is that where a person has "more than one dwelling place, his domicil is in the earlier dwelling place unless the dwelling place is his principal home." See Tuells v. Flint, 283 Mass. 106, 109 (1933). Evidence of indicia that would support Florida as the parties' principal abode are lacking here.

Findings that find support in the evidence and bear on whether the plaintiff changed her domicil are summarized:

The parties were married in Truro on November 29, 2006. They lived as a married couple in Massachusetts for some days before departing for Florida. At the time of the marriage, the plaintiff resided in a home in Truro, which she purchased five and one-half years before the marriage and has continued to own since the marriage. Problems arose shortly after the marriage and the parties enrolled in couples' counselling in Florida. For ten years preceding the filing of the divorce complaint, the plaintiff routinely made annual trips to Florida, ranging in duration from two to five months. The parties purchased a home in Nokomis, Florida, taking title jointly. The plaintiff is registered to vote in Massachusetts. Her vehicles are registered in Massachusetts. She filed a Massachusetts income tax return in 2006 (the year of her marriage).

These findings are insufficient to support the defendant's burden to establish by a preponderance of the evidence that the plaintiff changed her domicil to Florida and thus do not support dismissal of the divorce complaints on that ground. "[F]urther

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probing was required rather than a determination of jurisdiction based upon what must be regarded as" an insufficient record. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 53 (1st Cir. 1992).

Though deference is due the judge's credibility determination that discounted the plaintiff's stated intent regarding domicil, there is a dearth of affirmative evidence of an intent to change her domicil and the objective evidence tends rather to support the plaintiff's expressed intent to remain domiciled in Massachusetts. [Note Duffly-7] See Levine v. Amber Mfg. Corp., 6 Mass. App. Ct. 840, 841 (1978) (finding was clearly erroneous when it rested "on nothing firmer than [judge's] obvious disbelief of the plaintiff's evidence [predominantly documentary and largely uncontradicted]"); Reiersen v. Commissioner of Rev., 26 Mass. App. Ct. 124, 130 (1988) (board was not "required to believe Reiersen's expressions of intent, but they were uncontroverted and reinforced, rather than weakened, by the nonsubjective evidence"). "It is settled that mere disbelief of testimony does not constitute evidence to the contrary. A case lacking adequate affirmative proof is insufficient to support a verdict in favor of the party with the burden on the issue." Kunkel v. Alger, 10 Mass. App. Ct. 76, 86 (1980). See New Boston Garden Corp. v. Board of Assessors of Boston, 383 Mass. 456, 472 (1981).

I would remand for additional findings grounded in the evidence and for further consideration of the evidence in light of the defendant's burden of establishing by a preponderance of the evidence that the plaintiff's fixed Massachusetts domicil changed to Florida following the marriage.

For the foregoing reasons, I respectfully dissent.