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13-P-694                                              Appeals Court

               JEFFREY M. KELSO   vs.   BARBARA KELSO.1


                            No. 13-P-694.

        Middlesex.      January 7, 2014. - September 3, 2014.

             Present:   Katzmann, Fecteau, & Milkey, JJ.


Res Judicata. Divorce and Separation, Findings. Practice,
     Civil, Motion to dismiss, Findings by judge. Abuse of
     Process. Libel and Slander. Emotional Distress.



     Civil action commenced in the Superior Court Department on
June 18, 2012.

    A motion to dismiss was heard by Dennis J. Curran, J.


    Dana Alan Curhan for the plaintiff.
    David H. Locke for the defendant.


    KATZMANN, J.     This appeal poses the question of the

preclusive effect of a divorce judgment on a subsequent action

in tort pertaining to related conduct.      Following a trial, a

Probate and Family Court judge issued a judgment of divorce with


    1
        The defendant is also known as Barbara Cappadona.
                                                                      2


respect to the marriage of Barbara Kelso (Barbara) and Jeffrey

M. Kelso (Jeffrey) on the basis of the irretrievable breakdown

of the marriage.2    About a year later, Jeffrey filed an action in

the Superior Court against his former spouse seeking damages on

the basis of four tort claims:     abuse of process, defamation,

intentional infliction of emotional distress, and negligent

infliction of emotional distress.     A Superior Court judge

granted Barbara's motion to dismiss, and Jeffrey appeals.        We

reverse.

     Background.3    On June 19, 2009, Barbara filed a complaint

for divorce in the Probate and Family Court, alleging cruel and

abusive treatment.    On the same day, a Probate and Family Court

judge granted Barbara's ex parte motion for a temporary order

requiring Jeffrey to vacate the marital home.     Jeffrey was

required to vacate the house that day.     The order also required

that Jeffrey have no contact with Justin and Angelina, the

children he shares with Barbara.     On June 20, Father's Day,

Justin was staying at the home of Barbara's sister, Gerri


     2
       As the parties have the same last name, we refer to them
by their first names.
     3
       We draw our summary of the background facts and
proceedings from the plaintiff's complaint, as well as other
documents in the record that were attached to responsive
pleadings, assuming, as we must, that the facts alleged in the
complaint are true. Iannacchino v. Ford Motor Co., 451 Mass.
623, 635-636 (2008).
                                                                    3


Abrahamian, and her husband, Fred Abrahamian.     Jeffrey picked up

Justin, took him for a haircut and to a park, and returned him

to the Abrahamians.4   Later that day he was arrested for

violating the temporary order.

     On June 26, 2009, Jeffrey filed a counterclaim for divorce

and a motion to vacate the temporary order.     Following a

hearing, the motion judge entered an order allowing Jeffrey to

resume living in the marital home but requiring him to remain at

least ten feet away from Barbara.   Jeffrey resumed residence in

the house.   Three days later, in the early morning hours of June

29, Barbara called the police, alleging that Jeffrey violated

the ten-foot order.    Also on June 29, Barbara sought a G. L.

c. 209A abuse prevention order (209A order) in the Framingham

District Court.   In that proceeding, she filed an affidavit

stating that Jeffrey had forcibly entered her bedroom the

previous night and assaulted her.   The District Court issued a

209A order that same day.   In addition, based on the alleged

entry and assault, the Wayland police filed a criminal complaint

charging Jeffrey with the violation of an abuse prevention order

and assault and battery.


     4
       Gerri Abrahamian told the police that on the evening of
June 19, Barbara called her and informed her of Jeffrey's plan
to pick up Justin the following day for his haircut. Barbara
did not inform her sister at that time of the no-contact order
in place.
                                                                      4


       On July 28, 2009, the parties agreed to vacate the June 29

abuse prevention order issued by the Framingham District Court

and to dismiss the related pending criminal matters.     On August

28, 2009, a Probate and Family Court judge entered an order

memorializing this agreement and vacating the 209A order.

       During the divorce trial, which was held on January 26 and

27, 2011, Barbara made several serious accusations regarding

Jeffrey's behavior towards her.   First, she testified that

Jeffrey had struck her during the marriage.    Second, she

testified that Jeffrey pushed her in the stomach when she was

pregnant with Angelina.    Third, she testified that Jeffrey

formed his fingers into the shape of a gun and pointed them at

her, suggesting that he was threatening to shoot her.       Fourth,

she testified that Jeffrey had threatened her that, if she

called the police on him, it would be the last thing she ever

did.   Fifth, she testified that Jeffrey had threatened her that

he was going to bash her head in.    Jeffrey denied these

allegations, and none of the witnesses at trial had observed

Jeffrey behaving in an abusive manner towards Barbara.       The

Probate and Family Court judge who presided over the trial found

that "Wife's testimony regarding alleged abusive conduct on the

part of Husband was inconsistent to the point that it lacks

credibility."
                                                                     5


     At trial, there was substantial testimony regarding the

alleged incident of June 29, 2009.    Barbara testified that

Jeffrey forcibly entered her bedroom and assaulted her upon

gaining entry.5   She telephoned the police after Jeffrey,

purportedly, left the room.    Jeffrey testified that he did not

enter Barbara's bedroom that night.    There was testimony as well

about the surveillance cameras in the house, including one

installed in the hallway outside of Barbara's bedroom that

recorded images from that hallway.    Bruce Koenig, an expert in

the field of video forensics, testified that he did not discover

any problems with the authentication of the video recording

(video) and that the format of the video made it all but

impossible to alter.    Koenig testified that the video was not

consistent with Barbara's testimony that Jeffrey broke into her

bedroom.    The Probate and Family Court judge credited Jeffrey's

version of the events that evening, as well as the authenticity

of the video.

     On August 10, 2011, the Probate and Family Court judge

granted the petition for divorce on the grounds of irretrievable

breakdown of the marriage.    In support of the judgment, the

judge issued an extensive written decision, including 406

findings of fact.    As part of the divorce judgment, Barbara was


     5
         Barbara always kept her bedroom locked.
                                                                   6


ordered to reimburse Jeffrey for the cost of hiring Koenig, the

forensic video expert.     In addition, she was ordered to pay

Jeffrey $10,000 from her share of the division of assets because

of her uncooperative behavior at trial and because she forced

Jeffrey to "defend himself against false allegations of abuse."

     On June 18, 2012, Jeffrey filed the underlying Superior

Court tort action against Barbara, alleging (1) abuse of

process, (2) defamation, (3) intentional infliction of emotional

distress, and (4) negligent infliction of emotional distress.

These claims were based on the actions during the divorce

process described above.     After a hearing, a Superior Court

judge granted Barbara's motion to dismiss pursuant to

Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), concluding that

all four counts were barred by collateral estoppel6 because of

the prior divorce action.     Jeffrey now appeals.7


     6
       Below, we refer to collateral estoppel by its modern name,
issue preclusion. See Heacock v. Heacock, 402 Mass. 21, 23 n.2
(1988) (Heacock).
     7
       Judgment entered in accordance with the judge's order on
February 1, 2013, and Jeffrey filed a timely notice of appeal
therefrom on February 20, 2013. The record was assembled on
April 17, 2013, and the appeal now before us was entered in this
court on April 25, 2013. However, on May 15, 2013, the judge,
apparently sua sponte, sought to vacate the prior judgment as
"entered inadvertently." On that same day, the judge's
memorandum of decision and order on the motion to dismiss was
entered on the docket, as well as an amended judgment, again
dismissing Jeffrey's complaint. The judge, however, lacked the
authority to amend the judgment after the appeal had been
                                                                   7


     Discussion.8   "'Res judicata' is the generic term for

various doctrines by which a judgment in one action has a

binding effect in another.   It comprises 'claim preclusion' and

'issue preclusion.'"9   Heacock v. Heacock, 402 Mass. 21, 23 n.2

(1988) (Heacock).   Our analysis emerges from the framework that

Heacock establishes with respect to claim and issue preclusion


entered in this court and we obtained jurisdiction. See
Springfield Redev. Authy. v. Garcia, 44 Mass. App. Ct. 432, 434-
435 (1998). Thus, only the judgment that was entered on
February 1, 2013, is before this court.

     Although the memorandum was entered on the docket on the
same day as the amended judgment, the memorandum specifically
states that it details the grounds for the decision at the time
that the original judgment was entered (February 1, 2013).
Thus, the memorandum is properly before us. In that memorandum,
the judge explicitly allows the motion to dismiss solely on the
grounds raised by Barbara -- issue and claim preclusion.
Although in footnotes the memorandum states basic principles of
law suggesting alternative grounds for dismissal of the claims
-- not raised below -- we decline to address them as they were
not accompanied by any analysis and the decision does not rest
on them.
     8
       "We review the allowance of a motion to dismiss de novo."
Galiastro v. Mortgage Electronic Registration Sys., 467 Mass.
160, 164 (2014). "We accept as true the facts alleged in the
plaintiff's complaint as well as any favorable inferences that
reasonably can be drawn from them." Ibid.
     9
       "'Claim preclusion' is the modern term for the doctrines
traditionally known as 'merger' and 'bar,' and prohibits the
maintenance of an action based on the same claim that was the
subject of an earlier action between the same parties or their
privies. 'Issue preclusion' is the modern term for the doctrine
traditionally known as 'collateral estoppel,' and prevents
relitigation of an issue determined in an earlier action where
the same issue arises in a later action, based on a different
claim, between the same parties or their privies." Heacock, 402
Mass. at 23 n.2.
                                                                     8


in tort actions that follow related divorce proceedings.       See

id. at 23-25.   We conclude that neither claim preclusion nor

issue preclusion bars the tort claims at issue here.

     1.   Claim preclusion.    "The doctrine of claim preclusion

makes a valid, final judgment conclusive on the parties and

their privies, and bars further litigation of all matters that

were or should have been adjudicated in the action."     Id. at 23.

Claim preclusion only applies where both actions are based on

the same claim.   Id. at 24.   Because "[a] tort action is not

based on the same underlying claim as an action for divorce," it

is not precluded by a prior divorce action.10    Ibid.   See

Apostolicas Properties Corp. v. Richman, 28 Mass. App. Ct. 671,

676-677 (1990).




     10
       "The purpose of a tort action is to redress a legal wrong
in damages; that of a divorce action is to sever the marital
relationship between the parties, and, where appropriate, to fix
the parties' respective rights and obligations with regard to
alimony and support, and to divide the marital estate. Although
a judge in awarding alimony and dividing marital property must
consider, among other things, the conduct of the parties during
the marriage, the purposes for which these awards are made do
not include compensating a party in damages for injuries
suffered. The purpose of an award of alimony is to provide
economic support to a dependent spouse; that of the division of
marital property is to recognize and equitably recompense the
parties' respective contributions to the marital partnership.
The plaintiff could not have recovered damages for the tort in
the divorce action, as the Probate Court does not have
jurisdiction to hear tort actions and award damages." Heacock
supra at 24 (citations omitted).
                                                                    9


     With respect to claim preclusion, the present case is on

all fours with Heacock.    That the divorce action severed the

parties' marriage does not prevent Jeffrey from bringing this

tort action against Barbara.    See Heacock, supra at 24-25.

Barbara argues that allowing this tort action to proceed would

afford Jeffrey a double recovery because the Probate and Family

Court judge considered the parties' actions during the pendency

of the divorce and allocated funds in response.    In particular,

she highlights the award of funds to Jeffrey, in the divorce

judgment, to cover the cost of an expert witness that he called

during the divorce proceeding and to cover certain legal fees

because of her actions.    But the fact that the judge considered

the parties' actions in awarding funds does not alter the claim

preclusion analysis.11    See id. at 24 ("Although a judge in

awarding alimony and dividing marital property must consider,

among other things, the conduct of the parties during the

marriage, the purposes for which these awards are made do not

include compensating a party in damages for injuries suffered"

[citation omitted]).




     11
       We note that, even if Barbara is found liable in the
subsequent proceedings, she cannot be required to pay twice to
compensate for the same loss. See Selmark Assocs., Inc. v.
Ehrlich, 467 Mass. 525, 544 (2014), citing Blake v. Commissioner
of Correction, 403 Mass. 764, 767 (1989).
                                                                   10


    Moreover, Heacock forecloses Barbara's policy argument that

preclusion is required to ward off the ills of piecemeal

litigation.   There, the court concluded that the general policy

arguments for preclusion do not support the preclusion of a tort

action by a prior related divorce action.     Heacock, 402 Mass. at

24-25 ("Maintenance of the tort claim will not subject the

defendant and the courts to the type of piecemeal litigation

that the doctrine of claim preclusion seeks to prevent").

    2.   Issue preclusion.   Barbara argues that, even if Heacock

makes claim preclusion unavailable in this situation, Jeffrey's

tort claims are barred by issue preclusion.    We disagree.   We

conclude that, where the judge in the prior action made findings

that are favorable to Jeffrey and -- even if not wholly

favorable -- those findings are not sufficiently adverse to

Jeffrey such that they negate any element of the claims brought

in the tort action, those claims can survive a motion to dismiss

based on issue preclusion.

    Issue preclusion prevents "relitigating an issue when four

factors are present:   '(1) there was a final judgment on the

merits in [a] prior adjudication; (2) the party against whom

estoppel is asserted was a party (or in privity with a party) to

the prior adjudication; (3) the issue in the prior adjudication

is identical to the issue in the current litigation; and (4) the

issue decided in the prior adjudication was essential to the
                                                                    11


earlier judgment.'"    Okoli v. Okoli, 81 Mass. App. Ct. 381, 385

(2012), quoting from Porio v. Department of Rev., 80 Mass. App.

Ct. 57, 61 (2011).    "To defend successfully on the ground of

issue preclusion, the defendant must establish that the issue of

fact sought to be foreclosed actually was litigated and

determined in a prior action between the parties or their

privies, and that the determination was essential to the

decision in the prior action."    Heacock, supra at 25, citing

Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983).

    In Heacock, supra, issue preclusion did not apply because

the judge who presided over the divorce action did not make any

findings of fact.    Here, by contrast, the Probate and Family

Court judge made extensive findings of facts.    Insofar as these

findings were actually litigated and essential to the divorce

judgment, neither Barbara nor Jeffrey may litigate them again.

    In certain circumstances, factual findings made in a

divorce action may preclude a subsequent tort action if those

particular findings defeat the tort claim.     See, e.g., Green v.

Brookline, 53 Mass. App. Ct. 120, 127 (2001).    This is not such

a case.   First, Barbara does not actually argue that any

specific findings by the Probate and Family Court judge

conclusively establish that she is not liable on any of the

claims that Jeffrey now brings -- as she must do for the action

to be dismissed because of issue preclusion.    See Okoli v.
                                                                 12


Okoli, supra at 388-389.   Second, on the disputed issues

plausibly pertaining to the four tort claims,12 the judge's

findings are favorable to Jeffrey.   Notably, the Probate and

Family Court judge credited Jeffrey's account of the night on

which Barbara alleged that Jeffrey had entered her bedroom and

assaulted her.   In finding of fact no. 400, the judge stated,

"The Court finds Wife's testimony in this regard to be

deliberately evasive, and accordingly, not credible."    Moreover,


     12
       Abuse of process requires that "(1) 'process' was used;
(2) for an ulterior or illegitimate purpose; (3) resulting in
damage." Datacomm Interface, Inc. v. Computerworld, Inc., 396
Mass. 760, 775-776 (1986) (citation omitted). Jeffrey alleges
that Barbara filed the G. L. c. 209A petitions and took related
actions in order to gain advantage in the divorce proceedings.
"Defamation is the publication of material by one without a
privilege to do so which ridicules or treats the plaintiff with
contempt." Correllas v. Viveiros, 410 Mass. 314, 319 (1991).
Jeffrey alleges that Barbara made defamatory statements to third
parties during the divorce process. Intentional infliction of
emotional distress requires showing "(1) that the actor intended
to inflict emotional distress or that he knew or should have
known that emotional distress was the likely result of [the]
conduct, . . . (2) that the conduct was extreme and outrageous,
was beyond all possible bounds of decency and was utterly
intolerable in a civilized community, . . . (3) that the actions
of the defendant were the cause of the plaintiff's distress,
. . . and (4) that the emotional distress sustained by the
plaintiff was severe and of a nature that no reasonable [person]
could be expected to endure it." Okoli v. Okoli, supra at 387
n.8 (quotations and citation omitted). Negligent infliction of
emotional distress requires: "(1) negligence; (2) emotional
distress; (3) causation; (4) physical harm manifested by
objective symptomatology; and (5) that a reasonable person would
have suffered emotional distress under the circumstances."
Conley v. Romeri, 60 Mass. App. Ct. 799, 801 (2004). Jeffrey
alleges that Barbara's conduct both intentionally and
negligently caused him emotional distress.
                                                                  13


with respect to the events that immediately followed the initial

order requiring Jeffrey to vacate the family home, the judge

stated, in finding of fact no. 193, "The Court finds Husband's

testimony regarding the events on June 20, 2009 to be credible

and Wife's testimony to be not credible."   Neither these nor the

other findings in the Probate and Family Court judge's thorough

decision conclusively resolve any of Jeffrey's four tort claims

in Barbara's favor.13   Absent such findings, elevating the

doctrine of issue preclusion, which precludes the relitigation

of factual issues, to bar the claims at stake here would violate

the underlying holding of Heacock limiting claim preclusion.

See Heacock, 402 Mass. at 24-25.   While issue preclusion might

be appropriate in a postdivorce tort action where the divorce

judge had determined that a spouse did not engage in the

wrongful act of which the spouse is accused in the tort case, it

does not apply where a judge determines that a spouse had

engaged in wrongful conduct but the court does not have

jurisdiction to determine the legality of the conduct or the


     13
       By contrast, it is Jeffrey who may benefit from the
preclusive effects of the divorce judgment. In the proceedings
that follow this decision, Jeffrey may be able to use the
judicial determinations offensively to preclude Barbara from
relitigating questions of fact resolved at the divorce trial.
See Evans v. Lorillard Tobacco Co., 465 Mass. 411, 466 (2013)
(offensive issue preclusion can be deployed when not unfair to
the defendant). See also Aetna Cas. & Sur. Co. v. Niziolek, 395
Mass. 737, 745 (1985) (same).
                                                                  14


damages suffered by the complaining spouse as a result.   Issue

preclusion does not bar Jeffrey from bringing claims at issue

here.

                                   Judgment entered February 1,
                                     2013, reversed.
