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
25-P-924
VINCENT DENUFRIO
vs.
MARY GRUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Vincent DeNufrio (husband) appeals from a judgment of
dismissal issued by a judge of the Probate and Family Court on
his complaint for divorce from Mary Grue (wife). He argues that
the dismissal was erroneous because, as a matter of law, he met
his burden of establishing two critical jurisdictional facts
under G. L. c. 208, § 5: that he was domiciled in the
Commonwealth at the time he filed his complaint for divorce and
that the cause of the divorce occurred here. We vacate the
judgment and remand for further proceedings on the
jurisdictional issue.
Background. It appears undisputed that the parties were
married on July 7, 2011, and lived together in New Hampshire for at least most of the duration of their marriage. On November 4
or 5, 2024, the husband went to a Massachusetts hospital for
surgery. During the surgery, he suffered a severe stroke, and
he has remained in Massachusetts ever since, spending
significant time in the hospital before eventually relocating to
an inpatient care facility.
On December 23, 2024, the husband filed a complaint for
divorce, listing a home in Massachusetts as his residence,
although he acknowledged that he had never lived in the home and
remained in inpatient care at the time. The wife subsequently
moved to dismiss the action for lack of both subject matter and
personal jurisdiction.1 She later submitted a supporting
affidavit, which asserted numerous facts tending to show that
she was domiciled in New Hampshire and that the husband was
likewise domiciled there at least through November 4, 2024. Her
affidavit also stated that the husband "has been a legal
resident of the State of New Hampshire since at least 2009" and
1 Although the parties' arguments below focused on subject matter jurisdiction, and so we focus on it here, the judge's endorsement allowing the motion to dismiss leaves it unclear whether she based her ruling on subject matter jurisdiction or personal jurisdiction. On remand, she is free to rely on any proper ground. The wife's motion also mentioned improper venue as a third ground for dismissal, but the wife did not argue the point below or on appeal.
2 that he had no fixed or permanent address in the Commonwealth as
of the date he filed the complaint.
The husband filed a written opposition in which he asserted
that he has deep connections to Massachusetts and had made the
decision to remain here permanently after his stroke, an
intention that he had made known to those around him. He
further asserted that the wife financially took advantage of his
medical condition and abandoned him, and that these acts --
which caused the irretrievable breakdown of the marriage --
occurred during and through the wife's contacts with
Massachusetts. None of those assertions, however, were
supported by any affidavit. Attached to the husband's
opposition were screenshots of text messages between the wife
and the husband's son by a previous marriage.
The judge held a hearing on the motion. Although the
parties themselves were under oath, the judge did not hear
testimony from nor ask questions of either spouse. Thus, the
only evidence before the judge was the wife's affidavit and the
text messages submitted by the husband. The judge allowed the
wife's motion "after hearing and upon review of the parties[']
submissions" and ordered the judgment of dismissal from which
the husband now appeals.
Discussion. As relevant here, Massachusetts has subject
matter jurisdiction over a divorce "if the plaintiff is
3 domiciled within the commonwealth at the time of the
commencement of the action and the cause occurred within the
commonwealth." G. L. c. 208, § 5. Because the wife moved
pursuant to Mass. R. Dom. Rel. P. 12 (b) (1) to dismiss the
complaint for lack of subject matter jurisdiction, and supported
her motion with an affidavit, the burden fell to the husband to
prove these jurisdictional facts. See Caffyn v. Caffyn, 441
Mass. 487, 491 (2004); Hiles v. Episcopal Diocese of Mass., 437
Mass. 505, 515-516 (2002); Hladik v. LPL Fin. LLC, 106 Mass.
App. Ct. 592, 595 (2026). See also Lay v. Lowell, 101 Mass.
App. Ct. 15, 22 (2022) (domicil is mainly question of fact).
"Under this 'factual challenge' to jurisdiction, 'the
plaintiff's jurisdictional averments [in the complaint] are
entitled to no presumptive weight [and] the court must address
the merits of the jurisdictional claim by resolving the factual
disputes between the parties.'" Hiles, 437 Mass. at 516,
quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st
Cir. 2001). See Hladik, 106 Mass. App. Ct. at 595.2 Likewise,
2 The husband argues that to survive the wife's motion to dismiss, he was required only to make a prima facie showing, i.e., merely to offer evidence that, if credited, was sufficient to establish jurisdiction. For this proposition he relies on a personal jurisdiction case, Cepeda v. Kass, 62 Mass. App. Ct. 732, 736-739 (2004). Assuming without deciding that that principle applies here, the problem for the husband remains, as discussed herein, that he offered little if any evidence that could support a finding in his favor on either jurisdictional fact. We add that, contrary to the husband's assertion, Cepeda
4 bare assertions made in an opposition to a motion to dismiss,
without supporting evidence, do not suffice to meet the
nonmoving party's burden. Cf. Barron Chiropractic &
Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800,
804 (2014) (bare assertions in opposition to summary judgment
motion do not establish genuine issue of material fact).
For the husband to have defeated the motion to dismiss, he
was required, at a minimum, to offer evidence sufficient to
support findings that (1) he was domiciled in the Commonwealth
at the time he filed the complaint and (2) the breakdown of the
marriage occurred here. The judge did not specify which of
these points the husband had failed to establish.
Arguably, the evidence was insufficient on both points.
While the husband made numerous factual arguments in his
opposition, he did not support those bare assertions with
evidence, such as affidavits from himself or his children, or
testimony at the hearing. Nor has he argued that he was denied
the opportunity to present evidence. Thus, there may be no
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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
25-P-924
VINCENT DENUFRIO
vs.
MARY GRUE.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Vincent DeNufrio (husband) appeals from a judgment of
dismissal issued by a judge of the Probate and Family Court on
his complaint for divorce from Mary Grue (wife). He argues that
the dismissal was erroneous because, as a matter of law, he met
his burden of establishing two critical jurisdictional facts
under G. L. c. 208, § 5: that he was domiciled in the
Commonwealth at the time he filed his complaint for divorce and
that the cause of the divorce occurred here. We vacate the
judgment and remand for further proceedings on the
jurisdictional issue.
Background. It appears undisputed that the parties were
married on July 7, 2011, and lived together in New Hampshire for at least most of the duration of their marriage. On November 4
or 5, 2024, the husband went to a Massachusetts hospital for
surgery. During the surgery, he suffered a severe stroke, and
he has remained in Massachusetts ever since, spending
significant time in the hospital before eventually relocating to
an inpatient care facility.
On December 23, 2024, the husband filed a complaint for
divorce, listing a home in Massachusetts as his residence,
although he acknowledged that he had never lived in the home and
remained in inpatient care at the time. The wife subsequently
moved to dismiss the action for lack of both subject matter and
personal jurisdiction.1 She later submitted a supporting
affidavit, which asserted numerous facts tending to show that
she was domiciled in New Hampshire and that the husband was
likewise domiciled there at least through November 4, 2024. Her
affidavit also stated that the husband "has been a legal
resident of the State of New Hampshire since at least 2009" and
1 Although the parties' arguments below focused on subject matter jurisdiction, and so we focus on it here, the judge's endorsement allowing the motion to dismiss leaves it unclear whether she based her ruling on subject matter jurisdiction or personal jurisdiction. On remand, she is free to rely on any proper ground. The wife's motion also mentioned improper venue as a third ground for dismissal, but the wife did not argue the point below or on appeal.
2 that he had no fixed or permanent address in the Commonwealth as
of the date he filed the complaint.
The husband filed a written opposition in which he asserted
that he has deep connections to Massachusetts and had made the
decision to remain here permanently after his stroke, an
intention that he had made known to those around him. He
further asserted that the wife financially took advantage of his
medical condition and abandoned him, and that these acts --
which caused the irretrievable breakdown of the marriage --
occurred during and through the wife's contacts with
Massachusetts. None of those assertions, however, were
supported by any affidavit. Attached to the husband's
opposition were screenshots of text messages between the wife
and the husband's son by a previous marriage.
The judge held a hearing on the motion. Although the
parties themselves were under oath, the judge did not hear
testimony from nor ask questions of either spouse. Thus, the
only evidence before the judge was the wife's affidavit and the
text messages submitted by the husband. The judge allowed the
wife's motion "after hearing and upon review of the parties[']
submissions" and ordered the judgment of dismissal from which
the husband now appeals.
Discussion. As relevant here, Massachusetts has subject
matter jurisdiction over a divorce "if the plaintiff is
3 domiciled within the commonwealth at the time of the
commencement of the action and the cause occurred within the
commonwealth." G. L. c. 208, § 5. Because the wife moved
pursuant to Mass. R. Dom. Rel. P. 12 (b) (1) to dismiss the
complaint for lack of subject matter jurisdiction, and supported
her motion with an affidavit, the burden fell to the husband to
prove these jurisdictional facts. See Caffyn v. Caffyn, 441
Mass. 487, 491 (2004); Hiles v. Episcopal Diocese of Mass., 437
Mass. 505, 515-516 (2002); Hladik v. LPL Fin. LLC, 106 Mass.
App. Ct. 592, 595 (2026). See also Lay v. Lowell, 101 Mass.
App. Ct. 15, 22 (2022) (domicil is mainly question of fact).
"Under this 'factual challenge' to jurisdiction, 'the
plaintiff's jurisdictional averments [in the complaint] are
entitled to no presumptive weight [and] the court must address
the merits of the jurisdictional claim by resolving the factual
disputes between the parties.'" Hiles, 437 Mass. at 516,
quoting Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st
Cir. 2001). See Hladik, 106 Mass. App. Ct. at 595.2 Likewise,
2 The husband argues that to survive the wife's motion to dismiss, he was required only to make a prima facie showing, i.e., merely to offer evidence that, if credited, was sufficient to establish jurisdiction. For this proposition he relies on a personal jurisdiction case, Cepeda v. Kass, 62 Mass. App. Ct. 732, 736-739 (2004). Assuming without deciding that that principle applies here, the problem for the husband remains, as discussed herein, that he offered little if any evidence that could support a finding in his favor on either jurisdictional fact. We add that, contrary to the husband's assertion, Cepeda
4 bare assertions made in an opposition to a motion to dismiss,
without supporting evidence, do not suffice to meet the
nonmoving party's burden. Cf. Barron Chiropractic &
Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800,
804 (2014) (bare assertions in opposition to summary judgment
motion do not establish genuine issue of material fact).
For the husband to have defeated the motion to dismiss, he
was required, at a minimum, to offer evidence sufficient to
support findings that (1) he was domiciled in the Commonwealth
at the time he filed the complaint and (2) the breakdown of the
marriage occurred here. The judge did not specify which of
these points the husband had failed to establish.
Arguably, the evidence was insufficient on both points.
While the husband made numerous factual arguments in his
opposition, he did not support those bare assertions with
evidence, such as affidavits from himself or his children, or
testimony at the hearing. Nor has he argued that he was denied
the opportunity to present evidence. Thus, there may be no
evidence at all that the husband was domiciled in the
Commonwealth. And, although the husband argues that the text
messages between his son and the wife reflected the reasons for
was not a case where the jurisdictional facts were "uncontested." See id. at 736 ("In the present case, the facts material to the question of personal jurisdiction have been controverted by the defendant").
5 the breakdown of the marriage, it was far from clear that the
son had communicated any of the wife's statements to the husband
so as to contribute to a conclusion by the husband that "the[]
marriage is over and there is no hope of reconciliation."
Caffyn, 441 Mass. at 495.3
In the circumstances, however, we think the fairest
approach is to vacate the judgment of dismissal and remand so
that the judge may make express findings on the basis for her
jurisdictional determination. Upon timely request after the
docketing of the rescript in the trial court, the parties shall
be permitted to submit additional evidentiary materials on the
issue and, if necessary, the judge shall hold an evidentiary
hearing.
Conclusion.4 The judgment of dismissal dated May 23, 2025,
is vacated. The matter is remanded to the Probate and Family
3 The messages may permit the inference that the wife was in New Hampshire and the husband and his son were in Massachusetts at the time the wife sent the messages to the son, but it is not obvious from the messages themselves "that the marriage became irretrievably broken in Massachusetts." Caffyn, 441 Mass. at 496.
4 The wife's request for appellate attorney's fees is denied.
6 Court for further proceedings consistent with this memorandum
and order.
So ordered.
By the Court (Rubin, Sacks & Smyth, JJ.5),
Clerk
Entered: July 23, 2026.
5 The panelists are listed in order of seniority.