The husband argues that once a property division has been litigated and most, if not all, the marital property assigned, principles of claim preclusion prohibit a judge from dividing "any other asset [i.e., his pension] at a later date" pursuant to § 34 where the parties were aware of the asset at the time of the divorce proceedings and in the absence of evidence of fraud. In contrast, the wife relies upon Bottiggi v. Wall, 54 Mass. App. Ct. 430, 432-434 (2002), for the proposition that even when some of the parties' marital property is divided upon a divorce, a party may properly obtain a postdivorce division of any asset that was not actually considered, litigated, and determined as part of the divorce proceedings. She asserts that because the husband's pension was not mentioned in any order, judgment, or paper in the divorce proceeding, the husband did not sustain his burden of proving that his pension was actually considered and determined.
We have stated that "[b]efore res judicata will impose a limitation on the postdivorce dispositional power § 34 creates, the party seeking the limitation must prove that division of marital property was necessarily involved, litigated, and determined as part of the divorce proceedings themselves" (footnote omitted). Bottiggi v. Wall, 54 Mass. App. Ct. 430, 433 (2002). We recognize that this is a departure from the traditional application of the doctrine of claim preclusion whereby claims that could have been litigated in a prior proceeding, as well as those litigated and decided, are barred.
Simply put, the division of the Bard account "was necessarily involved, litigated, and determined as part of the divorce proceedings themselves." Bottiggi v. Wall, 54 Mass. App. Ct. 430, 433 (2002). Crowley's reliance on the Supreme Judicial Court's decision in Bernier v. Bernier, 449 Mass. 774 (2007), for the broad proposition that claim preclusion does not apply to a complaint in equity is misplaced.
The husband states, inter alia, that "judgments relating to property division are not subject to modification, so if the probate court has previously ordered division -- as happened here . . . -- then no further division may be ordered except in certain recognized circumstances, for example, where the original judgment or settlement agreement does not purport to effect a comprehensive division of marital assets, or when the original judgment is permeated by fraud or other recognized inequities." He points to several cases in support of his position. See, e.g., Taverna v. Pizzi, 430 Mass. 882, 886-887 (2000); Cappello v. Cappello, 23 Mass. App. Ct. 941, 942-943 (1986); Bottiggi v. Wall, 54 Mass. App. Ct. 430, 433-434 (2002). The husband seems to assert that the divorce judgment was not "tainted by fraud or other inequitable circumstances" as the judge concluded implicitly that the wife failed to prove that the husband fraudulently concealed his military pension and the judge's "stated findings and rationale do not support the conclusion that the original judgment is modifiable on the basis of mutual mistake."