Opinion
20-P-773
06-03-2021
Karen M. CROWLEY v. Nicholas P. RANDAZZO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Karen M. Crowley, filed a postdivorce complaint for division of undivided assets against the defendant, Nicholas P. Randazzo, seeking a declaratory judgment that investment gains on Randazzo's Bard Vanguard 401(k) account (Bard account) constituted divisible marital property. See G. L. c. 208, § 34. A judge of the Probate and Family Court allowed Randazzo's motion to dismiss. We affirm.
Background. The parties were divorced in 2013. In relevant part, their separation agreement provided that each party was to receive an "equally divided" portion in the amount of $151,805 from Randazzo's Bard account. The separation agreement further provided that "if a [qualified domestic relations order (QDRO)] is required to effectuate any transfer, the parties shall ... effectuate the QDRO to be done in 2013." There is no dispute that a QDRO was required to effectuate the transfer of funds from the Bard account.
"A QDRO is an appropriate method by which to facilitate the distribution of ... marital property rights." Connor v. Benedict, 481 Mass. 567, 580 (2019), citing Silverman v. Spiro, 438 Mass. 725, 736 (2003).
On December 14, 2015, Crowley filed a complaint for contempt against Randazzo, which was later amended to allege, in pertinent part, that Randazzo failed to divide the Bard account pursuant to the terms of the separation agreement. The contempt action proceeded to trial. At trial, the evidence established that Crowley drafted the QDRO herself in the amount of $151,805, and that the QDRO was approved by the plan administrator in July 2014. Nevertheless, the QDRO was not executed, and the Bard account substantially increased in value as a result of investment gains. Crowley contended that she was entitled to a "50/50" split of the funds at the date the division occurred, i.e., including the Bard account's gains. The judge determined that Randazzo could not be held in contempt for Crowley's refusal to accept $151,805 because the separation agreement clearly stated that each party was entitled to that amount with the QDRO to be completed in 2013. Although the judge noted that the parties' failure to specifically divide gains and losses in the Bard account was "[i]nexplicabl[e]," he ordered the parties to execute the QDRO in the amount of $151,805.
In 2019, Crowley filed the present "complaint for division of undivided assets" pursuant to G. L. c. 208, § 34 (2019 complaint), seeking a declaratory judgment that the Bard account, including the gains, be equally divided between the parties. Randazzo filed a motion to dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). The same judge allowed Randazzo's motion in a margin endorsement, stating, "res judicata, twice." This appeal followed.
Discussion. On appeal, Crowley contends that the judge improperly (1) allowed Randazzo's motion under the doctrine of res judicata, and (2) failed to make specific findings and hold an evidentiary hearing before dismissing her 2019 complaint. Randazzo counters that because the disposition of the Bard account was actually and necessarily decided during both the original divorce action and the contempt action, Crowley's complaint was properly dismissed. On our de novo review of this record, we agree with Randazzo. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011) ("We review the allowance of a motion to dismiss de novo").
Crowley's second claim can be briefly addressed. With respect to her complaint that the judge failed to make specific findings, that argument is foreclosed by Mass R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996), which states, in part, that "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 ...." Regarding the judge's failure to hold a full evidentiary hearing, the record reveals that Crowley did not request such a hearing below. Because we do not entertain arguments raised for the first time on appeal, we decline to address it. See Barry v. Planning Bd. of Belchertown, 96 Mass. App. Ct. 314, 324 (2019).
Res judicata is a term that includes both claim preclusion and issue preclusion. See Santos v. U.S. Bank Nat'l Ass'n, 89 Mass. App. Ct. 687, 692 (2016). "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." Heacock v. Heacock, 402 Mass. 21, 23 (1988). Similarly, "issue preclusion provides that when an issue has been ‘actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim.’ " Jarosz v. Palmer, 436 Mass. 526, 530-531 (2002), quoting Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983).
With respect to claim preclusion, the division of the Bard account was actually litigated between the parties and determined in the 2013 divorce action, which resulted in a final judgment of divorce. See Santos, 89 Mass. App. Ct. at 692, quoting Kobrin v. Board of Registration in Med., 444 Mass. 837, 843 (2005) ("The invocation of claim preclusion requires three elements: [1] the identity or privity of the parties to the present and prior actions, [2] identity of the cause of action, and [3] prior final judgment on the merits"). The divorce judgment incorporated the separation agreement, which stated that the Bard account was to be "equally divided" in the amount of $151,805. By drafting a QDRO in that amount in 2013, Crowley demonstrated her belief that she was entitled to no more than $151,805 pursuant to the separation agreement. While the judge noted in the contempt action that "accounting for the gains or losses from date of judgment to date of actual division and who shall benefit or suffer from such gains or losses" was "[i]nexplicably missing" from the separation agreement, claim preclusion applies to matters that "should have been litigated in a prior action." Charlette v. Charlette Bros. Foundry, Inc., 59 Mass. App. Ct. 34, 44 (2003). The Bard account was not omitted from division in the separation agreement, and had the parties wished to divide the gains, they could have done so. See Carpenter v. Carpenter, 73 Mass. App. Ct. 732, 739 (2009) (noting that courts will sanction postdivorce complaints under G. L. c. 208, § 34, "for division of an omitted marital asset" when, for instance, "a particular asset was omitted from the original division"). 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. There, faced with "novel and complex circumstances," the court held that claim preclusion was inapplicable to the wife's equity complaint seeking to recover net income from the parties' successful businesses because, in part, the judge "did not provide the wife with a full and fair opportunity to air her claims." Id. at 798. See id. at 796-797. Bernier does not stand for the blanket proposition that all complaints in equity are immune from the principles of res judicata. Here, there was no obstacle to Crowley raising a claim more specifically concerning predivision allocation of gains and losses in the Bard account had she wished to do so.
Crowley's 2019 complaint was also barred by the doctrine of issue preclusion. To be sure, her contempt complaint sought to hold Randazzo responsible for failing to distribute the Bard account's gains. In declining to do so, the judge not only rejected Crowley's argument that the term "equally divided" in the separation agreement meant the value of the Bard account on the date of its division, but also affirmatively ordered the parties to execute the QDRO providing for a transfer of $151,805 to Crowley. Issue preclusion consists of four elements: "(1) there was a final judgment on the merits in the prior adjudication; (2) the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; (3) the issue in the prior adjudication was identical to the issue in the current adjudication"; and (4) "the issue decided in the prior adjudication must have been essential to the earlier judgment" (quotation and citation omitted). Duross v. Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833, 836-837 (2020). The first two elements are readily satisfied. The third element is also satisfied because the parties' disagreement over the division of the Bard account's gains was, and is, an identical issue in both the contempt action and the present action. Finally, because the judge's findings on this issue were necessary to the disposition of the contempt action, which included his affirmative order for the transfer of $151,805 to Crowley, she may not litigate the issue again here. See Kobrin, 444 Mass. at 844 (to determine if issue was actually litigated in prior action, "we look to the record to see what was actually litigated"). Contrast Heacock, 402 Mass. at 25 (issue preclusion did not apply when judge did not make findings of fact in prior action).
Randazzo's request for appellate attorney's fees and costs is denied.
Judgment of dismissal dated January 21, 2020, affirmed.