Matthew John Lee v. Mary Beth Lee.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule
1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to
the parties and, therefore, may not fully address the facts of the case or the
panel's decisional rationale. Moreover, such decisions are not circulated to
the entire court and, therefore, represent only the views of the panel that
decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued
after February 25, 2008, may be cited for its persuasive value but, because of
the limitations noted above, not as binding precedent. See Chace v. Curran, 71
Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-42

MATTHEW JOHN LEE

vs.

MARY BETH LEE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff husband filed a complaint for divorce on

January 25, 2022. After an evidentiary hearing, a judge of the

Probate and Family Court dismissed the complaint for three

independent reasons: lack of subject matter jurisdiction; lack

of personal jurisdiction over the wife; and forum non

conveniens. The husband appeals. We affirm the judgment of

dismissal based on lack of subject matter jurisdiction.

The parties have never lived together in Massachusetts;

indeed, the wife was last in Massachusetts briefly in 2017, more

than three years before the husband took a job in the

Commonwealth. "Where parties to 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, § 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." Rose v. Rose, 96 Mass. App. Ct.

557, 557 (2019), quoting Caffyn v. Caffyn, 441 Mass. 487, 487-

488 (2004).

To meet the one-year residency requirement "a plaintiff

[must] maintain an actual, continuous residence in the

Commonwealth for twelve consecutive months immediately prior to

the commencement of the divorce action." Rose, 96 Mass. App.

Ct. at 563. We have explained that "[w]hether a plaintiff has

maintained an actual, continuous residence in the Commonwealth

. . . is a question of fact." Id. at 564.

In this case, the judge held an evidentiary hearing and

made detailed findings of fact. The husband does not argue that

any of the findings relevant to the determination of residency

are clearly erroneous. (He does argue that it was clearly

erroneous for the motion judge to consider his ongoing

maintenance of a joint account in Tennessee with the wife, as a

factor in concluding that he was not domiciled in Massachusetts.

He contends this finding suggests that the husband had to ignore

his financial obligations to his family in Tennessee in order to

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establish residency in Massachusetts. The judge made no such

finding).

The judge's subsidiary factual findings support the

ultimate factual conclusion that the husband was not a resident

of Massachusetts actually and continuously for the year prior to

the filing of husband's complaint for divorce. Among the

relevant findings were these: The husband had previously

obtained employment in Humboldt, Tennessee, approximately four

hours away from the marital home, and had "several extended

stays away from the marital home" while working in that job over

a period of seven months. In October, 2020, the parties began

refinancing their marital home in Tennessee, a process completed

in December, 2020. At the time, the husband represented to the

lender that he was residing in the marital home.

The husband arrived in Massachusetts on January 17, 2021,

one year and eight days before filing for divorce, to take a job

in West Bridgewater. He briefly stayed in an apartment paid for

by his employer. Ultimately, the husband resided with his aunt

and uncle in Hanover, where he paid no rent, but contributed to

the household in various ways, including cooking, working on

automobiles, and maintaining the swimming pool.

The husband returned to Tennessee during the year preceding

the filing of the complaint for divorce. He was in Tennessee

for over a month from April 1 to May 5, 2021, and then returned

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to Tennessee from June 16 through June 21; August 12 to August

15; and September 16 to September 20. The husband was also in

Tennessee from at least November 21 to November 28 and from

December 23, 2021 to January 1, 2022, though he may have been

there for longer periods of time on these occasions.1 His

employment in Massachusetts ended in November, 2021. He then

became employed again in Massachusetts, by a different employer,

beginning in December, 2021.

Throughout 2022, the husband returned to the marital home

in Tennessee, where he did chores, paid the bills, walked the

dog, shared family time, participated in the children's

activities and slept in the same bed as the wife. The husband's

closet in the Tennessee marital home remains full of his

clothes, as do two dressers.

When the husband left for Massachusetts, he told his

children that he was coming to Massachusetts for work. In March

or April, 2021, he brought one car to Massachusetts, but left

1 There is some inconsistency in the judge's findings as to
exactly how long the husband spent in Tennessee during his
visits in November, 2021 and December, 2021 to January, 2022.
While the judge appears to have credited the wife's statement in
her affidavit that husband visited on the listed dates, the
judge also found that the husband returned to Tennessee for
roughly one month after his employment with his first
Massachusetts employer ended in November, 2021, and that the
husband spent a few weeks in Tennessee from December, 2021 to
January, 2022. Neither party has challenged these findings,
however, and where there is a discrepancy, we will assume in the
husband's favor that the visits lasted the shorter time period.

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his truck and his 1989 Pontiac Trans Am at the marital home.

All three vehicles are registered in Tennessee. He had a

hunting license in Tennessee during the entire year preceding

the filing of the complaint for divorce. He has not obtained a

license to hunt in Massachusetts and he left his hunting

equipment, as well as his boat, in Tennessee. The husband

remained a member of the board of the local Boy Scout troop in

Tennessee. At the time he filed the complaint, he did not have

a Massachusetts driver's license, and was registered to vote in

Tennessee.

After April, 2022, the husband prepared and filed 2021 tax

returns jointly with the wife. On the Massachusetts return, he

indicated that he was a "non-resident/part-year resident." The

joint Federal return listed the marital home as the parties'

address. During both of his jobs in Massachusetts, the husband

received health insurance through Blue Cross Blue Shield of

Massachusetts, which sent mail to the husband at his Tennessee

address. Paychecks from his first employer were deposited into

the parties' joint account in Tennessee. His income was used to

pay the mortgage on the marital home, as well as the children's

high school and college expenses.

We have said that factors relevant to residency include

"receipt of mail, voter registration, physical address, the

payment of rent, bank accounts, vehicle registration, storage of

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clothing and personal effects, payment of taxes, and prior

history of residence." See Rose, 96 Mass. App. Ct. at 564,

quoting Meyer v. Meyer, 68 A.3d 571, 584 (R.I. 2013). The facts

described certainly support the judge's conclusion that the

husband did not maintain an actual, continuous residence in

Massachusetts during the year preceding the filing of the

complaint for divorce.

Alternatively, G. L. c. 208, § 5, provides our courts

subject matter jurisdiction to hear a complaint for divorce of

parties who are domiciled in Massachusetts when they file the

complaint, where the cause for the divorce occurred within

Massachusetts, so long as they did not remove into Massachusetts

to obtain a divorce.

Domicil has been defined as "the place of one'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." Fiorentino v. Probate Court, 365 Mass.

13, 17 n.7 (1974). A determination of domicil can be made based

on a number of factors, including whether the plaintiff has "a

Massachusetts driver's license and automobile registration;

whether he or she has purchased a home or has leased an

apartment in the Commonwealth; . . . whether any children have

been brought to live in Massachusetts; whether personal

property, including household goods, has been brought here;

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whether permanent employment has been obtained in Massachusetts;

whether there is evidence of abandonment of previous domicil,

e.g., cancellation of bank accounts, leases, memberships, and so

forth, sale of property, and issuance of change of address

notices." Caffyn, 441 Mass. at 492, quoting Fiorentino, supra

at 22 & n.12.

In this case, the judge did not credit the husband's

testimony that he did not have an intention to return to the

marital home at the time he filed his complaint for divorce in

January, 2022. The judge noted that the husband did return to

the marital home even after that date. Indeed, the husband

filed the complaint having just spent the Christmas and New

Year's period at the marital home with his family, and after

filing it, but before serving it, returned to the marital home

for Easter, from approximately April 13 through April 18, 2022,

and eight weeks later, returned again to the marital home from

June 26 until July 2, 2022, where he did chores, walked the dog,

participated in activities with the children and slept in the

same bed as the wife. Given that, and in light of the facts

described above about his driver's license, automobile

registrations, failure yet to lease an apartment,2 and leaving a

2 While the husband entered into a lease for a residence in
Clinton in October, 2022, this is not relevant to our analysis
as the husband must show that he was domiciled in Massachusetts
"at the commencement of the divorce action" to establish subject

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substantial portion of his personal property in Tennessee, there

was, as the motion judge noted, "little evidence of [h]usband's

abandonment of the marital home."

Of course, the credibility judgment of the husband's

testimony is one that we will not disturb, having not heard the

witness ourselves, see New England Canteen Serv., Inc. v.

Ashley, 372 Mass. 671, 675 (1977), and when combined with the

other facts and circumstances, the record clearly supports the

judge's conclusion that the husband failed to prove that he was

domiciled in Massachusetts at the time of the filing of the

complaint.

For these reasons, the trial court lacked subject matter

jurisdiction over the complaint for divorce. In light of our

conclusion, we need not reach the other issues presented to us,

including the question of where the cause of the divorce

occurred, personal jurisdiction over the wife, and the doctrine

of forum non conveniens.

The wife's request for attorney's fees and costs incurred

in this appeal is allowed as the appeal is frivolous. See G. L.

c. 211A, § 15; Mass. R. A. P. 25, as appearing in 481 Mass. 1654

(2019). The wife "may file her application for fees and costs,

matter jurisdiction, and the husband filed for divorce in
January, 2022. Rose, 96 Mass. App. Ct. at 557.

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with any appropriate supporting materials, with the clerk of the

[Appeals Court] within fourteen days" of the date of this

decision. Fabre v. Walton, 441 Mass. 9, 11 (2004). The

husband may respond to the petition within fourteen days of said

filing.

Judgment affirmed.

By the Court (Rubin,
Massing & Grant, JJ.3),

Clerk

Entered: February 5, 2025.

3 The panelists are listed in order of seniority.

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