MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The dispositive issue presented in this appeal is whether a judge of the Probate and Family Court had subject matter jurisdiction over a complaint for divorce filed by Ana De Paz-York (wife) against Brian F. York (husband). Because we conclude that G. L. c. 208, § 5, did not confer subject matter jurisdiction under the unusual circumstances of this case, we vacate the judgment of divorce.
Background. The relevant facts are not in dispute. The parties were married in Hawaii in 2006. They last lived together in Bogota, Colombia on March 30, 2017. The wife filed a complaint for divorce in Probate and Family Court on October 30, 2017, claiming there had been an irretrievable breakdown of the marriage as of April 1, 2017, and requested certain relief. At the time she filed the complaint, the wife resided in Norwell. The husband was served with the complaint on November 20, 2017.
On June 14, 2018, the wife and her attorney appeared before the court for a continued pretrial conference. The pretrial conference order included notice that, as relevant here, the case could proceed to trial on that date. Although the wife told the judge that the husband was in Massachusetts and knew about the proceeding, he did not appear. In accordance with the pretrial conference order, the judge called the case for trial. At the conclusion of the hearing, the judge entered a judgment of divorce nisi that adopted the terms of the wifes proposed judgment in its entirety. A judgment of divorce nisi dated April 1, 2019, nunc pro tunc to June 14, 2018, was docketed on May 14, 2019.
On May 22, 2019, the husband filed a motion for relief from judgment pursuant to Mass. R. Dom. Rel. P. 60 (b) and a motion for new trial pursuant to Mass. R. Dom. Rel. P. 59. Both motions were denied, and this appeal followed.
Discussion. On appeal, the husband claims, inter alia, that the judge improperly granted a divorce because the court was without subject matter jurisdiction to do so.
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We agree.
“[A] fundamental tenet of law is that lack of subject matter jurisdiction is fatal to a plaintiffs claims.” Everett v. 357 Corp., 453 Mass. 585, 612 (2009). General Laws c. 208, §§ 4 and 5, “operate to define and limit the jurisdiction of the courts of Massachusetts to grant divorces.” Fiorentino v. Probate Court, 365 Mass. 13, 16 (1974). General Laws c. 208, § 5 (§ 5), the statute applicable to this case, provides:
“If 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 ․”
The plain language of § 5 elucidates two specific instances in which the Commonwealth may assert jurisdiction over a divorce. See Caffyn v. Caffyn, 441 Mass. 487, 491 (2004). In the first clause of § 5, a plaintiff is required to satisfy a “one-year residency requirement” preceding commencement of the action if the cause of the action occurs outside the Commonwealth. Id. See Rose v. Rose, 96 Mass. App. Ct. 557, 560-561 (2019). In the second clause, a plaintiff must be domiciled within the Commonwealth at the commencement of the action, and the cause of the action must occur within the Commonwealth. See Caffyn, supra at 491-492. See also Miller v. Miller, 448 Mass. 320, 325 (2007).
The wifes complaint for divorce stated that the parties last lived together in Bogota, Colombia on March 30, 2017. The complaint further stated that on or about April 1, 2017, the husband caused an irretrievable breakdown of the marriage and that the breakdown continued to exist. The burden was on the wife to prove that the court had subject matter jurisdiction. Caffyn, 441 Mass. at 491. Although the complaint and the wifes testimony established her view that the marriage broke down in April 2017, there is no evidence in the record that the breakdown occurred in the Commonwealth.
Indeed, the wife does not argue that the cause of the divorce occurred within the Commonwealth; she instead focuses on the location of her domicile “at [the] time the marriage was irretrievably broken.” She misreads § 5. The location of her domicile at the time she commenced this action (when her marriage was irretrievably broken) is only relevant if the breakdown of her marriage occurred in the Commonwealth. See Miller, 448 Mass. at 325. Because she has not established that the breakdown occurred in the Commonwealth, jurisdiction would only be proper if she “lived in this commonwealth for one year last preceding the commencement of the action ․” G. L. c. 208, § 5. This requires “a plaintiff to maintain an actual, continuous residence in the Commonwealth for twelve consecutive months immediately prior to the commencement of the divorce action.”
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Rose, 96 Mass. App. Ct. at 563. It is without question that the wife cannot satisfy § 5s one-year residency requirement.
The complaint for divorce was filed on October 30, 2017. There is no evidence that the wife maintained “an actual, continuous residence in the Commonwealth” for the twelve prior months, i.e., since October 30, 2016. Rose, 96 Mass. App. Ct. at 563. Although the wife testified that she had been living in Norwell for “over a year now” at the hearing in June 2018, it is uncontested that she had not been living in Massachusetts for the twelve continuous months prior to filing her complaint.
The judgment of divorce is vacated, and the case is remanded with direction to dismiss the complaint for lack of subject matter jurisdiction.
So ordered.
Vacated and remanded
FOOTNOTES
2
. The husband raises additional claims of error aside from jurisdiction. In light of our conclusion, however, we need not address them.
3
. We note that this court recently explained that “the plain language of § 5 indicates the Legislatures intent to treat residence and domicil as distinct concepts for purposes of establishing subject matter jurisdiction over divorce actions.” Rose, 96 Mass. App. Ct. at 561.