M.M.D. v. M.E.D.

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

23-P-1107

M.M.D.

vs.

M.E.D.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

M.E.D. (husband), the former spouse of M.M.D. (wife),

appeals from a Probate and Family Court judgment of divorce nisi

pursuant to the "no-fault" divorce statute, G. L. c. 208, § 1B.

He argues that the judgment must be vacated because the

"irretrievable breakdown" provision of G. L. c. 208, § 1B,

violates both the First Amendment and the contracts clause, art.

1, § 10, of the United States Constitution. We affirm.

Background. The parties married in 1988. On October 2,

2020, the wife filed a complaint for divorce. The complaint

states that "on or about February 12, 2020, the [parties']

marriage suffered an irretrievable breakdown." In both his

answer to the complaint and subsequent motion to dismiss, the
husband denied that there was "an irretrievable breakdown" of

the marriage. After a hearing, a judgment of divorce nisi

entered on June 30, 2023.1 The husband filed a notice of appeal

on July 24, 2023.2

Discussion. a. First Amendment. The husband argues that

the "irretrievable breakdown" provision of G. L. c. 208, § 1B,3

violates the First Amendment because it authorizes unilateral

divorce based on one party's subjective viewpoint, and thus

"regulates opinion, speech, and thought rather than a general

action and mode of conduct." Consequently, he claims, the

statute is void ab initio and that the Probate and Family Court

lacked subject matter jurisdiction to grant a divorce on this

basis pursuant to the statute. The claim is without merit.

We review this as a facial challenge to the statute, which

"presents a question of law for the court requiring de novo

1 At the hearing, the judge noted that "[t]his matter was
before [him] . . . for a pre-trial conference," and that the
parties had "a very extensive and productive pre-trial
conference . . . and dealt with all of the issues." However,
the appellant did not provide a transcript of the pretrial
conference in the record appendix.

2 On appeal, the husband emphasizes that he is only
challenging the constitutionality of the no-fault divorce
statute, G. L. c. 208, § 1B, and is not challenging the divorce
settlement itself.

3 General Laws c. 208, § 1B, states, in relevant part:
"[a]n action for divorce on the ground of an irretrievable
breakdown of the marriage may be commenced by the filing of the
complaint."

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review." Barron v. Kolenda, 491 Mass. 408, 415 (2023). "It is

axiomatic that the government may not regulate speech based on

its substantive content or the message it conveys." Rosenberger

v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 828

(1995). "When the government targets not subject matter, but

particular views taken by speakers on a subject, the violation

of the First Amendment is all the more blatant." Barron, supra

at 422, quoting Rosenberger, supra at 829. "The government must

abstain from regulating speech when the specific motivating

ideology or the opinion or perspective of the speaker is the

rationale for the restriction." Rosenberger, supra at 829.

We first note that the husband cites cases containing

generic propositions of law that neither control the issue

raised on appeal nor demonstrate how § 1B is violative of the

First Amendment. On that basis alone, the claim fails to

warrant appellate relief. In any event, to the extent that we

are able to understand the precise nature of the husband's

claims, we discern no basis to vacate the judgment.

"A facial challenge to a legislative Act is . . . the most

difficult challenge to mount successfully." McGuire v. Reilly,

386 F.3d 45, 57 (1st Cir. 2004), cert. denied, 544 U.S. 974

(2005), quoting United States v. Salerno, 481 U.S. 739, 745

(1987). In the First Amendment context, "the burden on the

[party challenging the statute] is normally expressed as a

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showing that the statute admits of no valid application"

(quotation omitted). McGuire, supra at 57. "The adverse

effects of the statute are not relevant to its facial viewpoint

. . . only the legislative intent counts" (quotation omitted).

Id. at 60.

The Massachusetts Supreme Judicial Court examined the

legislative intent behind § 1B in Caffyn v. Caffyn:

"As a cause for divorce, an irretrievable breakdown of the
marriage is inherently subjective and, contrary to the
husband's contention, need not be objectively documented,
tested and proven. The decision that a marriage is
irretrievably broken need not be based on any identifiable
objective fact; it is sufficient that a party or parties
subjectively decide that their marriage is over and there
is no hope of reconciliation. In adopting no-fault
divorce, the Legislature implicitly recognized that the
parties to a marriage should be able to make personal and
unavoidably subjective decisions about marriage and divorce
free from overwhelming state control." 441 Mass. 487, 494-
495 (2004) (quotations omitted).

We further note that the requirements of § 1B act as "safeguards

designed to prevent the Commonwealth from becoming a 'divorce

mill for unhappy spouses.'"4 Id. at 497, quoting Sosna v. Iowa,

419 U.S. 393, 407 (1975).

In light of the discussion in Caffyn, we are satisfied that

the "irretrievable breakdown" provision of § 1B does not

4 Such safeguards include "the requirements that a plaintiff
establish domicil in the State . . . and convince the court that
he or she had not 'removed into' Massachusetts solely to obtain
a divorce, and a six-month waiting period before a hearing on a
divorce complaint filed pursuant to § 1B can be obtained."
Caffyn, 441 Mass. at 497.

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constitute viewpoint discrimination in violation of the First

Amendment. The legislative intent behind the statute to allow

"parties to a marriage . . . to make personal and unavoidably

subjective decisions about marriage and divorce free from

overwhelming state control," 441 Mass. at 495 (quotation

omitted), indicates a "valid application" of § 1B that is free

from intentional viewpoint discrimination.5 See McGuire, 386

F.3d at 57, 62 (quotation omitted). A facial challenge to a

statute requires that the plaintiff show a legislative intent to

discriminate based on viewpoint, and the husband fails to

satisfy that standard here. The claim is thus unpersuasive.6

5 Furthermore, the requirements of § 1B ensure that a court
does not simply accept a plaintiff's viewpoint that a marriage
is irretrievably broken as sole grounds for a no-fault divorce.
See Caffyn, 441 Mass. at 497. The husband had the opportunity
to object to the wife's request for a divorce and did so by
filing an answer to the complaint and a motion to dismiss
disputing the wife's contention that the marriage was
irretrievably broken. The judge did not simply accept the
wife's "viewpoint." Instead, he held a hearing and determined
that the wife met her burden of proving that the marriage was
irretrievably broken.

6 We note that the husband provided notice to the Attorney
General of his intent to challenge the constitutionality of
G. L. c. 208, § 1B. See Mass. R. Civ. P. 24 (d), 365 Mass. 769
(1974) ("When the constitutionality of an act of the legislature
. . . is drawn in question in any action to which the
Commonwealth or an officer, agency, or employee thereof is not a
party, the party asserting the unconstitutionality of the act
. . . shall notify the attorney general within sufficient time
to afford him an opportunity to intervene"). There is no
indication in the record that the Office of the Attorney General
intervened in this case.

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b. Contract clause. The husband also contends that G. L.

c. 208, § 1B, allows for the dissolution of marital status

without following the normal process of dissolving contracts,

and thus impairs the marriage contract in violation of the

contract clause, art. 1, § 10, of the United States

Constitution. This contention is unavailing.

In determining whether a state law violates the contract

clause, "[t]he threshold inquiry is whether the state law has,

in fact, operated as a substantial impairment of a contractual

relationship" (quotation omitted). Energy Reserves Group, Inc.

v. Kansas Power & Light Co., 459 U.S. 400, 411 (1983). In

Trustees of Dartmouth College v. Woodward, the United States

Supreme Court considered marriage and divorces in relation to

the contract clause:

"Th[is] provision of the constitution never has been
understood to embrace other contracts, than those which
respect property, or some object of value, and confer
rights which may be asserted in a court of justice. It
never has been understood to restrict the general right of
the legislature to legislate on the subject of divorces.
Those acts enable some tribunal, not to impair a marriage
contract, but to liberate one of the parties because it has
been broken by the other. When any State legislature shall
pass an act annulling all marriage contracts, or allowing
either party to annul it without the consent of the other,
it will be time enough to inquire, whether such an act be
constitutional." 17 U.S. 518, 629 (1819).

Here, there is no merit to the husband's claim that § 1B

violates the contracts clause. Trustees of Dartmouth College,

supra, makes clear that the contracts clause does not apply to

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marriage and affirms the state legislatures' authority to grant

divorce decrees. The husband points to the language stating

that "[w]hen any State legislature shall pass an act . . .

allowing either party to annul it without the consent of the

other, it will be time enough to inquire, whether such an act be

constitutional." 17 U.S. at 629. However, as discussed supra,

Caffyn validates § 1B and explains how "[i]n adopting no-fault

divorce, the Legislature implicitly recognized that the parties

to a marriage should be able to make personal and unavoidably

subjective decisions about marriage and divorce free from

overwhelming state control." 441 Mass. at 495 (quotation

omitted). It is therefore "sufficient that a party . . .

subjectively decide[s] that the[] marriage is over and there is

no hope of reconciliation." Id. Furthermore, the husband cites

no relevant authority to support his argument that § 1B is

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violative of the contract clause. Thus, this claim is likewise

without merit.

Conclusion. For the foregoing reasons, we affirm the

Probate and Family Court's judgment of divorce nisi.

Judgment affirmed.

By the Court (Neyman,
Hershfang & Hodgens, JJ.7),

Assistant Clerk

Entered: May 17, 2024.

7 The panelists are listed in order of seniority.

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