Case of the Day: Rose v. Rose
Posted on November 21, 2019
The case of the day is Rose v. Rose (Mass. App. Ct. 2019). The husband, a citizen of France, and the wife, a citizen of the United States and Canada, were married in New York in 2011. Both worked as international officers for the United Nations, and they were “assigned to missions all over the world.” At the time of the marriage, the wife was living in New York and her husband was living in Haiti on an assignment. Later, in anticipation of a joint move to Lebanon, where the husband was soon to be relocated, the wife moved into her parents’ home in Holbrook, Mass., and then the couple lived together in Lebanon until 2013. The husband was then reassigned to Mali, where he remains, and the wife to Syria, where she lived until 2017. The wife traveled during this time, including to her parents’ house; the husband stayed with her there for a few weeks. After she returned from Syria, she lived with her parents for a few weeks before starting a new assignment in Switzerland.
The husband sought a divorce in France in April 2017. In May, the wife sought a divorce in the Probate and Family Court in Massachusetts, listing her parents’ home as her residence on the petition. When a sheriff sought to serve the French papers on her at that address, he was told she did not live there. The husband moved to dismiss the Massachusetts proceedings for lack of jurisdiction. Under Massachusetts law, in order to seek a divorce in Massachusetts in the circumstances of this couple, the wife had to show that she had resided in Massachusetts for a year. The wife’s position was that her residence remained in Massachusetts even though she had been working abroad temporarily.
The court dismissed the divorce petition, and the wife appealed. The wife’s domicile may well have been in Massachusetts, but the statutory requirement is residence, and the court, construing the statute as many states construe similar statutes, held that “residence” meant actual, continuous residence for the year-long period (with reasonable exceptions, of course, for brief visits out-of-state. Because the factual record about just how much time the wife had spent in Massachusetts was undeveloped, and because the judge had made no finding about actual, continuous residence, the Appeals Court remanded for further proceedings.