In a recent case, the Massachusetts Appeals Court explored the issue of preclusion – once a person has gotten divorced, can his or her ex-spouse sue them for related conduct? The answer is yes, but not always. The Appeals Court explored both sides of res judicata – claim preclusion and issue preclusion, in reaching its determination.
The case, Kelso v. Kelso, Mass. App. Ct. 13-P-694 (Sept. 3, 2014), involved an acrimonious divorce. Prior to and during the divorce process, the wife accused the husband of several different instances of assault and abuse. She filed an ex parte motion to vacate the marital home, ex parte applications for no-contact orders protecting the wife and children, a petition for a chapter 209A abuse prevention order, and even a criminal complaint. Although most of those issues were vacated by agreement during the divorce proceedings, the wife still made several allegations against the husband as part of her testimony at trial, claiming that her husband had threatened and/or assaulted her in many different ways.
However, the judge, based on the testimony and on physical evidence that included video tapes from the surveillance system in the marital home, concluded that the Wife’s testimony was not credible and that the wife’s answers were evasive. He concluded that there was no evidence to suggest that the husband did any of the things of which he was falsely accused. The judge ultimately ordered the wife to reimburse the husband for the cost of hiring a forensic video expert who testified that the video tapes from the home had not been altered. He also ordered the wife “to pay the husband $10,000 from her share of the division of assets because of her uncooperative behavior at trial and because she forced the husband ‘defend himself against false allegations of abuse.'”
About a year after the trial, the husband filed a four-count complaint in the Superior Court against the Wife alleging (1) abuse of process, (2) defamation, (3) intentional infliction of emotional distress, and (4) negligent infliction of emotional distress. The Wife moved to dismiss arguing collateral estoppel because of the prior divorce action. The Superior Court dismissed the action and the Husband appealed. Now, the Appeals Court has reversed the decision, holding that the husband’s tort claims were not precluded by the filing of the divorce action.
The court quickly dealt with the doctrine of claim preclusion, which makes a valid, final judgment conclusive on the parties and bars further litigation of all matters that were or should have been adjudicated in the action. The court stated that claim preclusion only applies where both actions are based on the same claim and, 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.
The court then explored the doctrine of issue preclusion. Issue preclusion means that the issue of fact sought to be foreclosed actually was litigated and determined in a prior action between the parties and that the determination was essential to the decision in the prior action. If that is the case, an issue cannot be re-litigated in court.
The court found that, “where the judge in the prior action made findings that are favorable to [the husband] and — even if not wholly favorable — those findings are not sufficiently adverse to [the husband] 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.” In other words, if one of the facts that were found by the judge in the divorce action were unfavorable to the husband’s later tort claim, the wife could state that issue preclusion applies and that a court has already looked at the evidence and found the facts to be in her favor, therefore giving her the ability to move to dismiss the tort claim. However, if the facts were not unfavorable, the husband can very well bring a claim, and even argue that the facts have already been found to be in his favor by another court of the Commonwealth, to avoid re-litigating issues that have already had their day in court. Since the probate court did not have jurisdiction to give the husband redress for his tort claims, the court concluded, the husband was free to bring his action in the superior court even after the judgment of divorce had entered.
Practitioners should be aware of the possibility of further litigation in certain cases, even after a divorce has already been entered. Of course, a “settlement” in a divorce, as outlined in a separation agreement, usually involves full mutual releases, which would help avoid further litigation.