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18-P-59                                              Appeals Court

   RHITU SIDDHARTH ROSE     vs.   ALEXANDER STEPHANE GERARD ROSE.


                             No. 18-P-59.

          Norfolk.      May 15, 2019. - November 20, 2019.

             Present:    Rubin, Desmond, & Ditkoff, JJ.


Divorce and Separation, Jurisdiction. Jurisdiction, Divorce
     proceedings, Nonresident. Domicil.



     Complaint for divorce filed in the Norfolk Division of the
Probate and Family Court Department on May 30, 2017.

     A motion to dismiss was heard by Virginia M. Ward, J.


     Robert Herrick for the wife.
     Mikalen E. Howe for the husband.


     DESMOND, J.     Where parties to a divorce action have never

lived together as spouses in Massachusetts,1 a divorce may not be




     1 "A divorce shall not, except as provided in the following
section, be adjudged if the parties have never lived together as
husband and wife in this [C]ommonwealth; nor for a cause which
occurred in another jurisdiction, unless before such cause
occurred the parties had lived together as husband and wife in
this [C]ommonwealth, and one of them lived in this
                                                                     2


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.    Caffyn v. Caffyn, 441 Mass. 487,

487-488 (2004).   See § 5.2   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, nevertheless, satisfy the alternative

jurisdictional requirements of § 5, by . . . claiming that the

'cause' for the divorce, namely 'an irretrievable breakdown of

the marriage' under G. L. c. 208, § 1B, occurred in

Massachusetts."   Caffyn, supra at 487.3   Here, we are faced with




[C]ommonwealth at the time when the cause occurred."    G. L.
c. 208, § 4.

     2 "If the plaintiff has lived in this [C]ommonwealth for one
year last preceding the commencement of the action if the cause
occurred without the [C]ommonwealth, or if the plaintiff is
domiciled within the [C]ommonwealth at the time of the
commencement of the action and the cause occurred within the
[C]ommonwealth, a divorce may be adjudged for any cause allowed
by law, unless it appears that the plaintiff has removed into
this [C]ommonwealth for the purpose of obtaining a divorce."
G. L. c. 208, § 5.

     3 In Caffyn, the Supreme Judicial Court concluded that "a
plaintiff domiciled in Massachusetts may satisfy the
[alternative] jurisdictional requirements of § 5 by making a
subjective determination that the marriage became irretrievably
                                                                    3


the opposite question:     whether a plaintiff, who concedes she

has not met the "alternative jurisdictional requirements" of

§ 5, as the "cause" for divorce did not occur in Massachusetts,

may, nevertheless, satisfy the "one-year residency requirement"

of § 5 by claiming to be a Massachusetts resident while working

abroad.

     This appeal 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,4 against Alexander Stephane Gerard Rose (husband),

a French citizen.     The parties, both of whom are international

officers for the United Nations (UN), are assigned to missions

all over the world.     At both the time the wife filed her

complaint for divorce in Massachusetts and the time that the

cause 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




broken (pursuant to [G. L. c. 208,] § 1B) within the
Commonwealth." Caffyn, 441 Mass. at 488.

     4 The wife's family moved to Massachusetts when she was
approximately five years old.
                                                                   4


of § 5.5   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 § 5

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 judgment of dismissal and remand the matter for

further proceedings consistent with this opinion.

     Background.     The parties were married in New York on

February 25, 2011.    At that time, the wife was living in New

York in a rented apartment,6 and the husband was living in Haiti

on a UN assignment.    In the summer of 2011, when the husband


     5 The judge also determined that subject matter jurisdiction
did not exist under G. L. c. 208, § 4, which the wife does not
challenge on appeal.

     6 Although the wife owned a condominium in New York, she
chose to rent an apartment closer to UN headquarters.
                                                                     5


learned he would soon be relocated to Lebanon, the parties

agreed that the wife would take time off from UN missions so

that she could move to Lebanon with the husband.    In

anticipation of the upcoming overseas move, the wife vacated her

apartment in New York and moved into her parents' home located

in Holbrook.   In December of 2011, the wife joined the husband

in Lebanon, where they resided together until September of 2013,

at which time the husband was reassigned to Mali (where he

currently resides).   Soon thereafter, the wife was assigned to

Syria,7 where she remained until late April of 2017.     During

breaks in between her missions in Syria, the wife traveled to

other countries, including the United States (staying in her

parents' home in Holbrook), Mali (visiting the husband in March

of 2015), India (visiting her relatives in December of 2016),

and England (visiting a friend in February of 2017).     The

husband also traveled to the United States three times between

December of 2014 and May of 2015, joining the wife in Holbrook

for a total of twenty-four days.    After the wife's assignment in

Syria concluded in late April of 2017, she briefly returned to

her parents' home in Holbrook before accepting a new assignment

in Switzerland on April 28, 2017.




     7 Although the wife was not under a UN assignment when she
moved Lebanon, she later accepted a UN peacekeeping mission in
Lebanon in July of 2012.
                                                                     6


     The husband filed a petition for divorce in France on April

25, 2017, notifying the wife of the French divorce proceedings

via e-mail the same day.   On May 26, 2017, the wife, through

counsel, filed a complaint for divorce in the Probate and Family

Court, alleging that an irretrievable breakdown of the marriage

had occurred on January 20, 2017, while neither party was

physically present in Massachusetts.8   The wife listed her

parents' home in Holbrook as her address on the complaint.      On

July 3, 2017, a deputy sheriff attempted to serve the husband's

petition for divorce on the wife at her parents' Holbrook

address; however, the deputy was informed by "[t]he individual

who answered" the door "that the [w]ife had moved to New York,

works for the [UN], and [did] not live at that residence."

     On July 20, 2017, the husband's counsel filed a motion,

pursuant to Mass. R. Dom. Rel. P. 12(b)(1), (2),9 seeking to

dismiss the wife's complaint for divorce on the grounds of (1)

lack of subject matter jurisdiction, (2) lack of personal

jurisdiction over the husband, and (3) the pending divorce

proceedings in France initiated prior to the Massachusetts




     8 The wife's complaint was served on the husband in France
on June 30, 2017.

     9 The rule is identical to Mass. R. Civ. P. 12 (b) (1), (2),
365 Mass. 754 (1974).
                                                                    7


proceedings.    Following a nonevidentiary hearing,10 the judge

dismissed the wife's complaint due to lack of subject matter

jurisdiction, concluding that the wife had failed to meet the

one-year residency requirement of § 5 because she was

"physically living in Switzerland" when the complaint was filed.

On appeal, the wife argues that she has been a Massachusetts

resident since 2011 and that the judge erroneously concluded

that she ceased to be a Massachusetts resident when temporarily

working abroad.

     Discussion.     "We review de novo the allowance of a motion

to dismiss for lack of subject matter jurisdiction under rule

12(b)(1)."     311 W. Broadway LLC v. Board of Appeal of Boston, 90

Mass. App. Ct. 68, 73 (2016).     Here, because the wife conceded

that the parties never lived together as spouses in

Massachusetts and that the cause for divorce did not occur in

Massachusetts, the wife was required to satisfy the one-year

residency requirement of § 5 to maintain a divorce action in the

Commonwealth.11    Although residence is sometimes construed as the

"practical equivalent of domicil," Shepard v. Finance Assocs. of


     10At the October 19, 2017 hearing, the wife was present and
represented by counsel. The husband's presence at the hearing
was waived by the judge, and the husband's counsel filed a
special appearance for the purpose of contesting jurisdiction.

     11"The burden is on the party asserting jurisdiction to
prove jurisdictional facts." Miller v. Miller, 448 Mass. 320,
325 (2007).
                                                                   8


Auburn, Inc., 366 Mass. 182, 190 (1974), we think the plain

language of § 5 indicates the Legislature's intent to treat

residence and domicil as distinct concepts for purposes of

establishing subject matter jurisdiction over divorce actions.12

The concept of domicil, as it is used in § 5, has been defined

in our case law as the plaintiff'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."   Caffyn, 441 Mass. at 492, quoting Fiorentino v. Probate

Court, 365 Mass. 13, 17 n.7 (1974).13   Our appellate courts,


     12"The parties have not supplied, and we have not been able
to locate, any legislative history that would aid us in
discerning the legislative intent of [§ 5]." Caffyn, 441 Mass.
at 493 n.13. The Supreme Judicial Court has observed that there
has been some uncertainty in the past regarding whether the term
"lived" under § 5 was intended to be construed as "domiciled."
Fiorentino v. Probate Court, 365 Mass. 13, 23 n.15 (1974)
(noting that "if the use of 'lived' in § 5 means 'domiciled,'
. . . then the justification for the [durational] residence
requirement evaporates altogether"). Indeed, we think it
unlikely that the Legislature intended for "lived" and
"domiciled" to be used interchangeably, given that the former is
invoked only when the "cause [for divorce] occurred without the
[C]ommonwealth," and the latter is invoked only when the "cause
[for divorce] occurred within the [C]ommonwealth." § 5. To
conclude otherwise would render the location of the cause for
divorce irrelevant, and would thus be "inconsistent with
principles of statutory construction under which we 'give effect
to all words of a statute, assuming none to be superfluous.'"
Chin v. Merriot, 470 Mass. 527, 537 (2015), quoting Commonwealth
v. Semegen, 72 Mass. App. Ct. 478, 480 (2008). See Holmes v.
Holmes, 467 Mass. 653, 659 (2014) (statutory language is
clearest indication of legislative intent).

     13Although the Supreme Judicial Court struck down as
unconstitutional a prior version of § 5, containing a two-year
                                                                     9


however, have yet to define the parameters of the one-year

residency requirement under § 5.    It is therefore incumbent upon

us to do so now.

     Nearly every State, including Massachusetts, imposes a

statutory durational residency requirement to ensure "that those

who seek a divorce from its courts [are] genuinely attached to

the State," and "to insulate [its] divorce decrees from the

likelihood of collateral attack."   Sosna v. Iowa, 419 U.S. 393,

404-405, 409 (1975).   Many State courts have construed their

respective durational residency requirements as mandating an

"actual" and "continuous" residence in the State during the

required statutory period.14   Moreover, although "continuous"



residency requirement, see Fiorentino, 365 Mass. at 25-26, the
United States Supreme Court later upheld Iowa's one-year
residency requirement. Sosna v. Iowa, 419 U.S. 393, 396 (1975).

     14See, e.g., Morgan v. Morgan, 103 Conn. 189, 194-195
(1925) (Connecticut's durational residency requirement entails
"actual" and continuous residence, and is not satisfied by
plaintiff's in-State presence only "three or four times a year,
for two or three days at a time"); Tipton v. Tipton, 87 Ky. 243,
246 (1888) (Kentucky's durational residency requirement mandates
"actual residence" that is "substantial" and must be plaintiff's
"abiding place"); Doerner v. Doerner, 46 R.I. 41, 42-43 (1924)
(Rhode Island's durational residency requirement mandates
actual, continuous residence and physical presence during
required period); Dickinson v. Dickinson, 138 S.W. 205, 208
(Tex. Civ. App. 1911) (Texas's durational residency requirement
necessitates "actual" and "continuous" residence with "bulk" of
time spent there). See also Jenness v. Jenness, 24 Ind. 355,
359 (1865) (Indiana's durational residency requirement
necessitates "actual bona fide dwelling"); Coulter v. Coulter,
124 Mo. App. 149, 155-156 (1907) (Missouri's durational
residency requirement entails "actual residence"); Cheseborough
                                                                   10


usually does not mean "literally uninterrupted," Allan v. Allan,

132 Conn. 1, 3 (1945), a plaintiff generally must maintain a

meaningful physical presence in the State to satisfy the

durational residency requirement.15   We are therefore persuaded

to join those States and construe our durational residency



v. Cheseborough, 6 Pa. D. & C. 765, 768 (1925) ("mere legal
residence" in State, while maintaining "actual" residence out of
State, does not satisfy Pennsylvania's durational residency
requirement).

     15See, e.g., Wood v. Wood, 140 Ark. 361, 363-364 (1919)
(wife's actual residence in Arkansas was not interrupted by her
temporary absence of few months to visit sister in Mississippi);
Laplace v. Briere, 152 La. 235, 239-240 (1922) (plaintiff who
traveled frequently for vacations and visits with relatives did
not forfeit actual, continuous residence in Louisiana because
she always returned to Louisiana residence); Meyer v. Meyer, 68
A.3d 571, 584-585 (R.I. 2013) (Rhode Island's one-year residency
requirement satisfied where wife spent slightly more than one-
half of year in Rhode Island and remainder of year at her
vacation home in France). Cf. Lanham v. Lanham, 300 Ky. 237,
238-239 (1945) (husband, who left parents' Kentucky home to live
in Ohio with wife, joined army after their separation, sent his
belongings to his parents' Kentucky home, and expressed his
intention to permanently return to Kentucky once he was
discharged from army, failed to establish "actual residence" in
Kentucky); Trinchard v. Grace, 152 La. 942, 944-945 (1922)
(although plaintiff never intended to abandon Louisiana as
domicil and visited State periodically, plaintiff failed to
satisfy Louisiana's actual, continuous residence requirement due
to his acceptance of an out-of-State job and maintenance of out-
of-State residence); Doerner, 46 R.I. at 42-43 (teacher who
spent majority of year working in New York and only returned to
Rhode Island for holidays and weekends failed to satisfy Rhode
Island's requirement of actual, continuous residence); McCarthy
v. McCarthy, 45 R.I. 367, 369-370 (1923) (actress who was
physically present in Rhode Island only relatively small part of
each year due to out-of-State work commitments failed to satisfy
Rhode Island's durational residency requirement mandating
actual, continuous residence during prescribed statutory
period).
                                                                  11


requirement under § 5 as requiring a plaintiff to maintain an

actual, continuous residence in the Commonwealth for twelve

consecutive months immediately prior to the commencement of the

divorce action.   See, e.g., Meyer v. Meyer, 68 A.3d 571, 583

(R.I. 2013) ("in order to satisfy [Rhode Island's] statutory

[one-year] residency requirement in the divorce context, there

must be on plaintiff's part an actual and continuous residence

and dwelling within this [S]tate for the prescribed period,

which must immediately precede the filing of the petition"

[quotation and citation omitted]).   See also E.N. v. E.S., 67

Mass. App. Ct. 182, 191 n.19 (2006) (indicating in dicta that

plaintiff "resid[ing] in Massachusetts for more than twelve

consecutive months" may satisfy one-year residency requirement

of § 5).   The requirement of an actual, continuous residence

should be applied reasonably, and certain temporary absences

from the Commonwealth will be permitted as long as a plaintiff

has maintained a meaningful physical presence during the

required twelve-month period.   See, e.g., Meyer, supra at 584-

585 (Rhode Island's one-year residency requirement satisfied

where wife spent slightly more than one-half of year in her

Rhode Island home).   Cf. McCarthy v. McCarthy, 45 R.I. 367, 369-

370 (1923) (Rhode Island's durational residency requirement not

satisfied where wife was only physically present in Rhode Island

two months per year, spending rest of year working in other
                                                                  12


States as actress).    Such a construction ensures that a

plaintiff seeking to initiate divorce proceedings has a "modicum

of attachment" to the Commonwealth, and furthers the

Commonwealth's "parallel interests both in avoiding officious

intermeddling in matters in which another State has a paramount

interest, and in minimizing the susceptibility of its own

divorce decrees to collateral attack."    Sosna, 419 U.S. at 407.

See Fiorentino, 365 Mass. at 17 ("These statutory restrictions

on the divorce powers of Massachusetts courts were presumably

intended to prevent the bringing of migratory causes of action

in Massachusetts courts and to ensure the validity . . . of the

decrees of Massachusetts courts against collateral attack by

limiting proceedings in divorce actions to situations where the

Commonwealth has some substantial connection with the dispute

being adjudicated").   See also Chin v. Merriot, 470 Mass. 527,

532 (2015), quoting Commonwealth v. Figueroa, 464 Mass. 365, 368

(2013) ("Under well-established principles of statutory

construction, 'a statute must be interpreted according to the

intent of the Legislature ascertained from all its words

construed by the ordinary and approved usage of the language,

considered in connection with the cause of its enactment, the

mischief or imperfection to be remedied and the main object to

be accomplished, to the end that the purpose of its framers may

be effectuated'").
                                                                   13


    Whether a plaintiff has maintained an actual, continuous

residence in the Commonwealth sufficient to satisfy the one-year

residency requirement of § 5 is a question of fact that must be

determined on a case-by-case basis.    See Meyer, 68 A.3d at 583

("a finding that a plaintiff . . . had resided within the

[S]tate for the requisite period of time is a finding of fact").

See also Commonwealth v. Chown, 459 Mass. 756, 764 (2011),

quoting Rummel v. Peters, 314 Mass. 504, 517 (1943) ("the

determination of residency . . . typically is 'largely a

question of fact'"); Doyle v. Goldberg, 294 Mass. 105, 108

(1936) ("The determination of the place of residence or domicil

is commonly a question of fact").   Moreover, although residence

and domicil are distinct concepts for purposes of § 5 (namely

because domicil has the "additional element of intent," Meyer,

supra at 582), they may be proved through many of the same

factors.   See Caffyn, 441 Mass. at 492, quoting Fiorentino, 365

Mass. at 22 n.12 (these factors include "without limitation,

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; . . . [and]

whether [his or her] personal property, including household

goods, has been brought here'").    See also Meyer, supra at 584

(factors relevant to residency determination include "receipt of

mail, voter registration, physical address, the payment of rent,
                                                                   14


bank accounts, vehicle registration, storage of clothing and

personal effects, payment of taxes, and prior history of

residence").   These factors, along with evidence of a

plaintiff's physical presence in the Commonwealth during the

required twelve-month period, should allow a judge to "make 'a

reasonably accurate determination'" as to whether a plaintiff

has maintained an actual, continuous residence for purposes of

satisfying the one-year residency requirement under § 5.

Caffyn, supra, quoting Fiorentino, supra at 22.

     Here the judge concluded, after conducting a nonevidentiary

hearing, that the wife did not satisfy the one-year residency

requirement because she "was physically living in Switzerland"

when she commenced divorce proceedings in Massachusetts.

Because there was no evidentiary hearing below, and the judge

did not have the benefit of our decision here, there was no

factual determination made as to whether the wife maintained an

actual, continuous residence in Massachusetts for twelve

consecutive months immediately prior to filing her complaint for

divorce.   Moreover, although the wife alleged that she returned

to her parents' Holbrook home between UN assignments, it is

unclear how frequently she was physically present in

Massachusetts during the required statutory period.16


     16In support of her claimed Massachusetts residency, the
wife asserts, among other things, that she has a Massachusetts
                                                                  15


Accordingly, we vacate the judgment and remand the matter for an

evidentiary hearing and findings of fact as to whether the wife

has satisfied § 5's one-year residency requirement in light of

the criteria set forth herein.17

                                   So ordered.




driver's license, is registered to vote in Holbrook, has medical
providers in Massachusetts, is registered as an organ donor in
Massachusetts, uses her parents' Holbrook address for her credit
cards and tax returns, and owns real property in Roslindale
(although she does not claim to reside in Roslindale). The wife
also vaguely averred that when she "was on leave in the United
States," she would stay in her parents' Holbrook home. However,
the wife did not specify the dates when she stayed in Holbrook,
apart from her brief visit in April of 2017.

     17The husband's request for attorney's fees in connection
with this appeal is denied.
    RUBIN, J. (concurring).     I join the court's opinion but

write separately to note an unintended consequence of the way in

which the language of G. L. c. 208, § 5 (§ 5), has been drafted

that could have serious deleterious consequences for those who

make their homes in Massachusetts but must work elsewhere,

particularly those who serve in the armed forces.

    Prior to 1975, § 5 read, "[i]f the libellant has lived in

this [C]ommonwealth for two years last preceding the filing of

the libel if the cause occurred without the [C]ommonwealth, or

if the libellant is a resident of the [C]ommonwealth at the time

of the filing of the libel and the cause occurred within the

[C]ommonwealth, a divorce may be decreed . . ." (emphasis

added).   Section 5, as amended through St. 1969, c. 162.1   And,

in Fiorentino v. Probate Court, 365 Mass. 13, 23 n.15 (1974),

the Supreme Judicial Court indicated that "lived in" and

"resident of" might be "construed as meaning 'domicil' and

'domiciliary,'" respectively.    If that were the case, anyone who

had maintained their domicil within Massachusetts for one year

could invoke the court's divorce jurisdiction under § 5, no


    1  The current language of "lived in" in the first clause of
§ 5 and "domiciled within" in the second was adopted as part of
the 1975 amendment to the domestic relations laws. The 1975
Amendment purported to "enable the extension of the
Massachusetts rules of civil procedure to domestic relations
proceedings." 1975 Senate Doc. No. 970, § 10. The
Massachusetts Rules of Civil Procedure had been enacted just the
previous year.
                                                                    2


matter where they had been physically during the time since they

established their domicil here and no matter where the "cause"

of the divorce occurred.

    In 1975, the Legislature replaced the words "resident of"

in the second clause with "domiciled within," while leaving the

words "lived in" in the first clause untouched.    St. 1975, c.

400, § 10.   The Legislature thus indicated that it intended

"lived in" to have a different meaning than "domiciled within."

Under the statute, even bona fide domiciliaries thus may not

obtain a divorce in this Commonwealth under § 5 unless they have

"lived in," that is, as the court clarifies today, maintained an

actual, continuous residence in, the Commonwealth, for one year

if the cause of the divorce occurred outside the Commonwealth.

And that one-year actual residency requirement is the basis of

the court's ruling.

    Section 5, however, provides an essential means of

obtaining jurisdiction over divorces for married Massachusetts

domiciliaries who have never "lived together as husband and

wife" –- or, more accurately, despite the outdated language in

the statute, as spouses –- "in this [C]ommonwealth."    G. L.

c. 208, § 4 (§ 4).    That is because the other statute providing

for jurisdiction over divorces, § 4, denies jurisdiction in all

cases in which "the parties have never lived together as husband

and wife in this commonwealth," and in any case in which the
                                                                   3


cause of divorce "occurred in another jurisdiction, unless

before such cause occurred the parties had lived together as

husband and wife in this [C]ommonwealth, and one of them lived

in this [C]ommonwealth at the time when the cause occurred."

    To "live together as husband and wife" requires that both

parties be domiciliaries of the Commonwealth and that they

cohabitate within the Commonwealth.    See Newth v. Newth, 241

Mass. 431, 432 (1922).   To limit the court's divorce

jurisdiction to cases where there has been such cohabitation

would be incompatible with the modern realities of marital

relationships, cohabitation, and gender equality, and would

burden the right of all adult individuals to control their

decisions relating to family.   In today's world many married

couples may choose lives in which they do not "live together as

husband and wife" within the Commonwealth, anywhere else in the

United States, or, indeed, in any location.   Further, it is an

essential component of the equal status of all and of the

control of all adult individuals over their decisions relating

to family, that the law no longer presumes that marriage

necessarily results in such cohabitation.

    In light of this, it is clear the protection afforded the

people of the Commonwealth by § 5 is of increased importance,

and that the scope of the one-year residency requirement in that

section may have great significance.   And, whatever the
                                                                   4


consequences of the Legislature's decision to maintain or impose

such a requirement was in 1975, in current circumstances, the

one-year residency requirement may serve to deeply disadvantage

those who live in Massachusetts but work elsewhere, particularly

those citizens of Massachusetts who serve in the armed forces.2

As the law currently stands, due solely to her deployment, an

active duty service member domiciled in Massachusetts may be

unable to invoke the jurisdiction of our courts under § 5 to

obtain a divorce.    Even if she has established domicil in

Massachusetts by moving here with the intention of permanently

remaining in the Commonwealth, and has done what the wife here

has done, registering to vote here, registering her car here,

and the like, if she is deployed overseas within months of

arrival in Massachusetts, and the cause of her divorce occurs

during that deployment, she may be unable to invoke the

jurisdiction of our courts, and perhaps of any court in the

United States, to end her marriage.    Indeed, the only courts

open to her may be the courts of the country to which she has

been deployed.

     The divorce statute is "intended to be for the benefit of

our own citizens."    Ross v. Ross, 103 Mass. 575, 576 (1870).




     2 I note that there is no claim before us that the residency
requirement violates the Massachusetts Constitution and
Declaration of Rights.
                                                                   5


While this means that the Legislature is free within

constitutional limits not to protect people who claim to have

connections with the Commonwealth but really have come here only

to get divorced, assuming there are any individuals who would do

that, presumably we do not want to remit our own citizens to a

foreign divorce process unnecessarily.    Thus, whatever the

circumstances were at the time that the current language of § 5

was adopted, I cannot imagine that the unfair result I have

described is one that the Legislature genuinely desires.   I

therefore write to point out the consequence of the language of

the statute we apply today so that, should it wish to do so, the

Legislature can take corrective action.
