Opinion
16-P-1370
07-21-2017
Theresa A. CERULLI v. Brian P. BANKS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal from an amended judgment for the plaintiff entered after a jury trial on the plaintiff's tort action. Passing the question whether the defendant timely submitted an adequate factual record to support it, we conclude there is no merit to his contention that the plaintiff waived her claim for personal injuries caused by the defendant when the plaintiff failed to list the potential cause of action on the financial statement she filed in the parties' prior divorce action. We accordingly affirm the amended judgment.
The defendant also appeals from the order allowing the plaintiff's motion for judgment notwithstanding the verdict on his counterclaim for intentional infliction of emotional distress and from the order denying his motion for judgment notwithstanding the verdict.
In support of his contention, the defendant relies on dictum in footnote three of Heacock v. Heacock, 402 Mass. 21, 25 (1988), in which the court commented that "it is appropriate to require, in future divorce actions, that the parties list the existence of such claims, although of unascertainable market value, in financial statements filed with the Probate Court." As a threshold matter, we observe that "such claims" in Heacock referred to a complaint that was filed during the pendency of the parties' divorce action but was not served on the defendant until more than a year had passed and the divorce proceeding had concluded. The comment arose in the context of the court's rejection of the defendant's contention that the plaintiff's tort claim should be dismissed for failure to prosecute. In the present case, by contrast, no complaint was filed until after the divorce action concluded; unlike the claim in Heacock, the plaintiff's tort claim in the present case was inchoate, not pending, during the pendency of the divorce action. Moreover, nothing in the analysis or result of Heacock states or even suggests that the failure to list even a pending claim on financial statements submitted in a divorce action would operate to preclude prosecution of such a claim after conclusion of the divorce action; indeed, the central holding of Heacock rejected the defendant's contention that the divorce action operated to preclude the tort claim under principles of claim preclusion or issue preclusion. Id. at 23-25. As explained in Heacock, "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." Id. at 24. See Kelso v. Kelso, 86 Mass. App. Ct. 226, 230-231 (2014).
Though it is unclear precisely what the court meant by its comment in footnote three, we need not resolve that question in the present case. It is enough to observe that a waiver of the type suggested by the defendant is impracticable for a variety of reasons, not the least of which is that disclosure of a tort claim by one spouse against the other during the pendency of a divorce action cannot be adjudicated within the divorce action, and indeed would have no discernible effect on the course of the divorce action itself.
We are unpersuaded by the defendant's assertion that he suffered prejudice from the alleged failure because the Probate and Family Court judge's findings on the physical abuse committed by the defendant against the plaintiff were not as detailed as they would have been, had she known that the plaintiff intended to pursue a tort action based on the injuries she sustained. The assertion is based on nothing more than speculation, and it is far from clear that greater detail would have helped the defendant in any manner. Nor is there merit in his claim of prejudice in his decision not to prosecute an appeal from the divorce judgment, after reaching agreement with the plaintiff; if he based that decision in part in reliance on the belief that the plaintiff would not pursue a claim for damages based on any potential tort claim against him it was open to him to have sought a release before abandoning his appeal.
We decline to consider the defendant's claim of fraudulent inducement, as it is raised for the first time on appeal. See Carey v. New England Organ Bank, 446 Mass. 270, 286 (2006).
Amended judgment affirmed.
Orders on motions for judgment notwithstanding the verdict affirmed.
In the exercise of our discretion, we decline the plaintiff's request for an award of attorney's fees and double costs for the appeal. Though we consider the defendant's claim to be without merit, we do not consider it frivolous or to have been advanced in bad faith.
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