Opinion
No. 12–P–631.
2013-04-2
Gavin F. McNETT v. Marita C. BARTH.
By the Court (KANTROWITZ, KATZMAN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff husband appeals from a judgment of the Probate and Family Court on the defendant wife's counterclaim for divorce; the judgment grants the wife, among other things, sole legal and physical custody of the parties' minor child, provides the husband supervised visitation, permits the wife to reside permanently in Oregon with the minor child, and orders the husband to pay to the wife $61 per week in child support. The husband contends that the judgment is void because the court lacked subject matter jurisdiction over this matter
; he also argues that he was denied a fair hearing when his request to continue the pending trial was denied. We affirm. Jurisdiction. The husband first argues that the court lacked subject matter jurisdiction because neither party was domiciled in Massachusetts at the time this action was filed; in his view, the judgment of divorce nisi should be dismissed. His theory is that the wife was not domiciled in Massachusetts because she was living here temporarily while pursuing her doctoral degree; he maintains that she always had intended to return to her actual domicile in Oregon when she completed her education.
The husband filed a rule 60(b)(4) motion to dismiss on November 27, 2011, asserting that the Probate and Family Court lacked subject matter jurisdiction. See Mass.R.Dom.Rel.P. 60(b)(4). The judge denied the motion, finding that the wife was “domiciled in the Commonwealth as of the commencement of her action” which gave the Massachusetts court proper jurisdiction. The husband filed an interlocutory appeal with the single justice of this court; the judge dismissed the appeal on January 30, 2012, “as the matter is not interlocutory.”
The husband himself relocated to New Jersey when the parties separated in January, 2010. He filed a complaint for divorce in Essex County, Massachusetts, on April 22, 2010.
“[A] divorce may be granted if the plaintiff is domiciled in the Commonwealth when the action is commenced, the cause occurred in the Commonwealth, and the plaintiff did not come to the Commonwealth for the purpose of obtaining a divorce.” Miller v. Miller, 448 Mass 320, 325 (2007). See G.L. c. 208, § 5. Here, the wife met each of these requirements on June 3, 2010, when she filed her answer to the husband's complaint along with her counterclaim for divorce.
As of June 3, 2010, the wife had been a resident of Massachusetts since 1998; she had lived in this State with the husband since 2007; the parties were married in Oregon but returned to Massachusetts after their marriage in 2008; they continued to live together in Massachusetts with the minor child, who was born in 2009; finally, the wife was still living in Massachusetts on January 23, 2010, when the husband left and there was an irretrievable breakdown of the parties' marriage. In addition, it is clear that the wife originally came to this State to continue her education, not to seek a divorce.
Finally, the trial judge found that the wife was domiciled in this State as evidenced by her bank account maintained at a local bank, her Massachusetts driver's license, her Massachusetts motor vehicle registration, and apartment leaseholds in Cambridge and later in Salem where she resided with the husband and minor child. See Fiorentino v. Probate Ct., 365 Mass. 13, 22 & n. 12 (1974) (such evidence indicates intent needed to establish domicil). “The facts of this case amply support the judge's conclusion that the wife established domicil in the Commonwealth.” Caffyn v. Caffyn, 441 Mass. 487, 493 (2004).
Motion to continue. The husband also argues that the trial judge deprived him of a fair hearing when he erroneously denied the husband's request to continue the scheduled trial. He contends that “on the eve of trial” he was without counsel and the file received from his former counsel lacked sufficient material to assist him in preparation for trial, including the forensic expert's report.
The husband filed his request with the court on October 21, 2011, in the form of a letter to the trial judge, who treated it as a motion to continue. On October 24, 2011, the judge denied the motion as “[n]o notice was given to Defendant's Counsel and the Court [found] no compelling reason to continue the trial.”
On August 15, 2011, the judge denied Attorney Huff's motion to withdraw as the husband's counsel; on September 27, 2011, about a month before trial, the husband filed a notice of “change of appearance” informing the court that he would proceed pro se although “Attorney Huff remains retained by the plaintiff, yet at present holds no duties or responsibilities regarding filings or Court appearances.” On October 13, 2011, the judge allowed Attorney Huff's emergency motion to withdraw as counsel “with the assent of the Plaintiff.”
The trial began on October 28, 2011, but the husband did not appear. On October 31, 2011, the judge dismissed the husband's complaint for divorce with prejudice and entered judgment of divorce nisi on the wife's counterclaim for divorce.
We note that, at the time of trial, the case had been pending for eighteen months. The wife alleges in her brief that the lawyer who withdrew was the fifth lawyer retained by the husband; this assertion is partially corroborated by the filings in the supplementary appendix which show the names of at least three lawyers who represented the husband at various times. The husband himself also filed a number of pro se motions.
“ ‘Generally, “[t]he decision whether to grant a motion to continue lies within the sound discretion of the trial judge ... [and a] denial of a continuance will not constitute error absent an abuse of that discretion.” ‘ [citations omitted] Furthermore, ‘[i]n considering a request for a continuance, a trial judge should balance the movant's need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred by the opposing party if the motion is granted.’ “ Commonwealth v. Burston, 77 Mass.App.Ct. 411, 417 (2010), quoting from Commonwealth v. Super, 431 Mass. 492, 496–497 (2000). We see no abuse of discretion in the denial of the request for a continuance.
As we are satisfied that the issues raised in this appeal are frivolous, the wife's motion for appellate attorney's fees is allowed. The husband shall have ten days from the date of the rescript to respond to the wife's specific request for $9,076.38, which is contained in the motion and the accompanying affidavit. See Fabre v. Walton, 441 Mass. 9, 10–11 (2004).
Judgment of divorce nisi affirmed.