MICHAEL CHRISTOPHER FALLON v. AHYUN LEE FALLON (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Probate and Family Court entered a judgment of divorce nisi which, inter alia, granted the plaintiff father sole legal and physical custody of the parties’ minor child, who at the time lived in South Korea with his mother, the defendant. More than a year later, the mother moved to vacate the judgment on the basis that the court did not have subject matter jurisdiction over the child custody determination according to the Massachusetts Child Custody Jurisdiction Act (MCCJA), G. L. c. 209B. The mother appeals from the denial without a hearing of her motion to vacate judgment as void pursuant to Mass. R. Dom. Rel. P. 60 (b) (4). We affirm.

Background. In 2019, the parties married in California. In 2022, the parties lived in South Korea where their child was born. In February 2023, the family traveled from South Korea to California and stayed there until March 2023, when the family traveled to Massachusetts. There, they moved into the father's parents’ house and remained there until Friday, August 18, 2023, when the mother took the child to South Korea.

On Monday, August 21, 2023, the father filed a complaint for divorce and a motion for an order requiring the mother to immediately return the child to the Commonwealth. On August 25, 2023, the judge entered a temporary order awarding sole legal and physical custody of the child to the father and requiring the mother to immediately return the child to the commonwealth. Subsequently, the father filed a petition in South Korea for return of the child under the Hague Convention. On March 27, 2024, the judge entered a judgment of divorce nisi, awarding the father sole legal and physical custody of the child and ordering the mother to return the child to the Commonwealth.

On May 17, 2024, a South Korean trial court ordered the child to be returned to the Commonwealth, and on July 31, 2024, a South Korean appellate court affirmed the order. On May 20, 2025, authorities removed the child from the mother in South Korea and returned the child to the father in Massachusetts. On June 13, 2025, the mother filed in the Probate and Family Court a motion for relief from the judgment of divorce, arguing that the judgment was void due to lack of subject matter jurisdiction. The father filed an opposition, and the mother's motion was denied without hearing on June 25, 2025.¹ The mother appealed to this court.

Discussion. We review the denial of a rule 60 (b) (4) motion for relief from judgment for abuse of discretion. See Ryan v. Lovendale, 105 Mass. App. Ct. 564, 568 (2025). In her motion, the mother argued that the custody determination is void because the Probate and Family Court lacked subject matter jurisdiction under the MCCJA. We review jurisdictional questions de novo. See Care & Protection of Faraj, 496 Mass. 426, 429 (2025). Pursuant to the MCCJA, a Massachusetts court may make a child custody determination only if it has jurisdiction based on one of four grounds: (1) home state jurisdiction, (2) default jurisdiction, (3) emergency jurisdiction, or (4) appropriate forum jurisdiction. See G. L. c. 209B, § 2 (a) (1)-(4); Custody of Vale, 106 Mass. App. Ct. 381, 387-388 (2025). The mother contends that none of these grounds are applicable and therefore the court had no jurisdiction to make a custody determination.

The father concedes that Massachusetts does not have home state jurisdiction, which is defined as “the state in which the child immediately preceding the date of commencement of the custody proceeding resided with his parents, a parent, or a person acting as parent, for at least 6 consecutive months ․” G. L. c. 209B, § 1. The father commenced the custody proceeding on August 21, 2023. See id. (“Custody proceeding” includes proceedings in which custody determination is one of several issues presented for resolution such as in action for divorce). At the time, the child had lived in Massachusetts with his parents since March 15, 2023. Although this is just short of the six months required to confer home state jurisdiction on Massachusetts, there was no other state in which the child had lived for at least six consecutive months “immediately preceding the date of commencement of the custody proceeding.” G. L. c. 209B, § 1. At the commencement of the custody proceeding, the child had lived in South Korea for less than a week since leaving the Commonwealth.

The MCCJA provides that, in such cases, a Massachusetts court may exercise default jurisdiction where

“it appears that no other state would have jurisdiction under paragraph (1) [home state jurisdiction] and it is in the best interest of the child that a court of the commonwealth assume jurisdiction because (i) the child and his or her parents, or the child and at least one contestant, have a significant connection with the commonwealth, and (ii) there is available in the commonwealth substantial evidence concerning the child's present or future care, protection, training, and personal relationships.”

G. L. c. 209B, § 2 (a) (2). The child lived in Massachusetts with his parents and paternal grandparents for nearly six months prior to his removal to South Korea by the mother. Thus, it would appear that the family had a significant connection with the Commonwealth and that there would be available substantial relevant evidence. See Custody of Vale, 106 Mass. App. Ct. at 393 (where child had brother in Commonwealth and lived there for several months, “significant connection” and “substantial evidence” established).

The mother contends, however, that default jurisdiction does not apply because South Korea was the home state of the child at the time of the initiation of custody proceedings. See Adoption of Twyla, 104 Mass. App. Ct. 434, 445 (2024) (Massachusetts could not have default jurisdiction where another state had home state jurisdiction). The mother argues that the child was born in South Korea and lived there for nearly eight months before traveling to California for a temporary one-month stay so that the mother could renew her green card. Further, the mother argues that the nearly six-month stay in Massachusetts was also temporary because the family had intended to relocate to California. For purposes of home state jurisdiction, “[p]eriods of temporary absence [from the home state] ․ are counted as part of the 6-month or other period.” G. L. c. 209B, § 1. The mother contends that the entire nearly seven-month period that the family lived in the United States should be considered a temporary absence from their home in South Korea, such that the prior eight-month period that the child lived in South Korea should be counted in favor of home state jurisdiction.

However, the mother never claimed in her motion for relief from judgment that the family's travel to the United States was simply a “temporary absence” from South Korea. Rather, the mother acknowledged, without disputing, the father's claim that the family left South Korea to “move” to California. Thus, there was no basis to consider the child's nearly six-month stay with the parents in the home of the paternal grandparents as a temporary absence from South Korea. As such, the judge properly could have concluded that default jurisdiction applied. See McKellar v. Hazen, 325 Mass. 714, 717 (1950) (in absence of contrary findings, denial of motion imports finding of all facts necessary to justify action); Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 511-512 (2014) (denial of motion implies resolution of factual issues consistent with denial).

The mother also argues that the judge should have held a hearing before determining whether the court had subject matter jurisdiction. But the mother's motion largely recited undisputed procedural facts and made a legal argument based on the MCCJA. She did not raise any factual dispute requiring an evidentiary hearing, nor has she identified any such factual issue on appeal. Accepting as true all uncontroverted facts recited by the mother, see Fleishman v. Stone, 57 Mass. App. Ct. 916, 916 (2003), her motion for relief for judgment still militated in favor of default jurisdiction. Although the mother mentions a due process concern, she does not contend that she was deprived of notice and an opportunity to be heard with respect to the custody determination. See Ryan, 105 Mass. App. Ct. at 572.

Accordingly, we discern no error or abuse of discretion in the denial of the mother's motion for relief from judgment.

Order denying motion for relief from judgment affirmed.

FOOTNOTES

1.   Subsequently, the mother filed a complaint for modification of the divorce judgment, while reserving her legal claim as to the court's lack of subject matter jurisdiction over the child custody determination.