Opinion
21-P-971
07-07-2022
LARRY W. FRYATT [1] v. FRANCES C. DENESIUK; BLAINE J. DEFREITAS, third-party defendant.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Frances C. Denesiuk and her former husband, the late Paul Denesiuk, were divorced in 2007. Paul died in 2018 without having paid in full the negotiated property division memorialized in the parties' separation agreement, and without having executed the mortgages contemplated by the agreement as security for that debt. In 2021, almost three years after Paul's death, Frances filed a copy of the divorce judgment in the registry of deeds, encumbering certain property held by Paul's estate. She appeals from the interlocutory order of a Superior Court judge dissolving that filing. We affirm.
For ease of reference, we refer to the Denesiuks individually using their first names.
Background.
The relevant background facts are, except as noted, undisputed. Frances and Paul were married in 1978. During the course of their marriage, they acquired property in both Maynard, Massachusetts and St. John, United States Virgin Islands (USVI). When they divorced in 2007, they entered into a separation agreement pursuant to which Paul agreed to pay Frances $956,000 within ninety days of the agreement's March 27, 2007 execution date. The separation agreement provided that this portion of the property division was to be secured by mortgages on the real estate in Maynard and the USVI; the mortgages were to be "present[ed] by" Frances and executed by Paul "simultaneously with" the separation agreement. Paul executed the mortgage on the USVI property but did not do so as to the Maynard properties.
The separation agreement was incorporated into, but not merged with, the divorce judgment.
The parties dispute whether Frances "presented" mortgages on the Maynard properties; if she did, they were not executed.
Paul died on July 24, 2018, and Larry Fryatt was appointed personal representative of his estate. At the time of his death, Paul allegedly owed Frances $98,000 on a debt unrelated to the divorce (and not at issue in this appeal) (Deere debt) and had an unpaid balance of $28,000, plus interest, on the property division under the terms of the separation agreement. Frances had not sought to enforce the agreement for the unpaid amount in any court either before or within a year after Paul's death.
Fryatt initially maintained that the unpaid amount was only $25,000, and, represented by prior counsel, Frances agreed to that amount. As we note, infra at note 8, the parties executed an escrow agreement based in part on that figure. On appeal, however, Fryatt concedes the unpaid balance was actually $28,000. The parties continue to dispute the amount of interest due on that amount.
For our purposes, the battle over the unpaid amounts was joined in 2019 when Fryatt sought to sell the USVI property. When Frances refused to discharge her mortgage on that real estate, Fryatt filed the underlying action in the Superior Court seeking declaratory and injunctive relief requiring Frances to cooperate in the sale; Fryatt also sought attorney's fees and monetary damages against Frances. Frances answered the complaint, admitting that her claim as to the property division in the divorce was for an unpaid balance of $25,000, plus "[twelve] percent statutory interest from 2007," totaling an additional $37,000. She did not raise any counterclaims at that time. Thereafter, Frances agreed to discharge her mortgage on the USVI property, allowing the parcel to be sold, in exchange for Fryatt's agreement to hold $160,000 of the sale proceeds in escrow. The USVI property was sold and the funds were escrowed as agreed.
See note 6, supra.
The amount was calculated by adding the $98,000 Deere debt to the amount Frances then claimed was due on the unpaid property settlement ($25,000) and interest ($37,000).
The litigation continued, and in January 2020 Fryatt moved for judgment on the pleadings; a focal point of his argument was that Frances was barred from recovering the unpaid balance of the divorce proceeds because, as a creditor of the estate, she was bound by the one-year limitation on actions set forth in G. L. c. 190B, § 3-803 (a.) . After a hearing, a judge denied Fryatt's motion.
The judge's margin endorsement did not address Fryatt's statutory argument.
On May 4, 2021, represented by new counsel, Frances filed a copy of the divorce judgment in the registry of deeds (May 4 filing). In doing so, Frances sought to convey to herself, pursuant to G. L. c. 183, §§ 43 and 44, the interest in the Maynard properties that she would have obtained through execution of the mortgage contemplated in the 2007 separation agreement. Shortly thereafter, Fryatt moved to dissolve that filing arguing, inter alia, that Frances was not entitled to any security interest in the Maynard properties because she had failed to present Paul with mortgages as required by the separation agreement; that the debts at issue were already secured by the escrowed funds; and that, in any event, Frances's likelihood of success on the merits of her claim was low, given her failure to make a timely claim for the unpaid funds. While the motion to dissolve was pending, Frances was permitted to file an amended answer and counterclaims. As relevant here, Frances counterclaimed for a declaration that the divorce judgment "constitute[d] a valid debt against the [e]state." A judge ultimately allowed Fryatt's motion to dissolve the May 4 filing, although he stayed that order pending this appeal.
The same counsel represented her in this appeal.
Discussion.
1. Preliminary injunction.
For the purposes of our analysis, we accept Frances's characterization of the judge's order dissolving her May 4 filing as a preliminary injunction. See Doe v. Superintendent of Sch. of Weston, 461 Mass. 159, 164 (2011) (preliminary injunction "ordinarily is issued to preserve the status quo pending the outcome of litigation"). A party moving for a preliminary injunction must show "(1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that, in light of the [moving party's] likelihood of success on the merits, the risk of irreparable harm to the [moving party] outweighs the potential harm to the [nonmoving party] in granting the injunction." Tri-Nel Mgt., Inc. v. Board of Health of Barnstable, 433 Mass. 217, 219 (2001). Reviewing the judge's application of these criteria to the facts here for an abuse of discretion or error of law, see King v. Town Clerk of Townsend, 480 Mass. 7, 9 (2018), we discern none.
Accordingly, we assume that the appeal is properly before us. See G. L. c. 231, § 118, second par.
We first consider Fryatt's likelihood of success under G. L. c. 190B, § 3-803 (a.), which provides, in relevant part, that "a personal representative shall not be held to answer to an action by a creditor of the deceased unless such action is commenced within [one] year after the date of death of the deceased." Id. Contrary to Frances's contention, in seeking to recover the unpaid portions of the property division incorporated into the divorce judgment, Frances was a "creditor of the deceased." Id. Cf. Berg v. Ciampa, 100 Mass.App.Ct. 569, 570 (2021) ("judgment creditor" seeks "to enforce and collect" unsatisfied money judgment). Where, under the terms of the separation agreement, the full payment of $956,000 was due within ninety days of agreement's execution date in 2007, we are not persuaded that Frances could avoid application of the statutory time limit. Cf. Flannery v. Flannery, 429 Mass. 55, 57 (1999) (under predecessor to § 3-803 [a.], alimony claims accrued in first year after decedent's death barred where action was not "commenced within one year after the date of death of the deceased") (quotation omitted). In this context, we conclude that the judge was within his discretion in his implicit determination that Fryatt had demonstrated a likelihood of success on the merits of the underlying claims and counterclaims.
To the extent that Frances sought to "enforce [a] mortgage . . . or other lien upon property of the estate," the lien at issue was not created until after the expiration of the time for bringing Frances's claim under § 3-803 (a.) and appears to be nothing more than an impermissible end-run around the statutory time limit. We need not address Frances's additional claim, raised for the first time at oral argument, that she was exempted from the one-year limit in § 3-803 (a.) on the grounds that her efforts to recover the unpaid amounts under the divorce judgment took the form of counterclaims against the personal representative, rather than an "action" that she initiated. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief").
Our conclusion that the judge did not abuse his discretion in dissolving the filing is not determinative of Frances's claim(s), and should not be construed as preventing Frances from pursuing her claim(s) on a fully developed record. See C,E. v. J.E., 472 Mass. 1016, 1017 n.3 (2015) ("we do not prejudge the merits of the wife's appeal. . . . The wife remains free to raise the same arguments on a fully developed record"); Westinghouse Broadcasting Co. v. New England Patriots Football Club, Inc., 10 Mass.App.Ct. 70, 75 (1980) (concluding that plaintiff failed to show likelihood of success entitling it to preliminary injunction but recognizing possibility plaintiff would prevail on same claims "after trial") .
We turn, then, to the risk of irreparable harm to the parties and the balancing of those potential harms. We conclude that the judge could properly have determined that the May 4 filing created a risk of irreparable harm to Fryatt, as personal representative of Paul's estate, that significantly overbalanced any risk of harm to Frances created by dissolution of the May 4 filing. Frances's filing created a cloud on the title of the Maynard properties to which it applied. Such a de facto mortgage on the properties would negatively impact the marketability and value of the real estate. By contrast, the risk of irreparable harm to Frances was limited by the fact that some, if not all, of her claim against the estate was secured by the funds escrowed from the sale of the USVI property. Given these circumstances, we discern no abuse of discretion in the judge's dissolution of the May 4 filing.
As we have noted, although the parties agree on the amount of the unpaid portion of the property division incorporated in the divorce judgment, they disagree on the amount of interest due. We are not called upon to resolve this question here.
2. Remaining arguments.
We are not persuaded by Frances's remaining arguments. The dissolution of the May 4 filing did not affect the validity of the divorce judgment, and the judge's order did not deprive Frances of any jury right that she may have had (or may continue to have) in the various interrelated actions spawned by the separation agreement. Nor are we persuaded by Frances's contention that the order dissolving the May 4 filing was the product of an improper ex parte communication. A reasonable reading of the record suggests that the judge initially and mistakenly ruled on an earlier motion, and when a clerk was alerted by Fryatt's counsel to that fact, the judge (whom Frances does not allege communicated with any party or party representative) then ruled on the motion that the parties had expected him to rule on -- the motion to dissolve the May 4 filing.
Conclusion.
The order entered August 30, 2021, allowing the motion to dissolve the May 4, 2021 registry of deeds filing is affirmed. The order entered September 21, 2021, denying the motion for reconsideration is affirmed. Fryatt's request for an award of his appellate attorney's fees and double costs is denied.
So ordered.
The panelists are listed in order of seniority.
In his capacities as personal representative of the estate of Paul A. Denesiuk and as trustee of the C & J Realty Trust.