SIRIKANJANACHAI v. FLORENTINE (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Ginger Sirikanjanachai, appeals from a sua sponte judgment of dismissal of her complaint for divorce from the defendant, Gerard C. Florentine. Sirikanjanachai and Florentine were married in 1974 and received a divorce decree from a Dominican Republic court in 1983 (divorce decree). The complaint underlying this appeal is Sirikanjanachai's fifth attempt to invalidate the divorce decree in the Massachusetts courts. We affirm.

Background. We summarize the relevant background facts and procedural history. After the divorce decree was granted in the Dominican Republic, both parties went on to remarry. Sirikanjanachai's first complaint to invalidate the divorce decree was filed in the Norfolk Superior Court in 2016, thirty-three years after the parties divorced. That action was stayed when Sirikanjanachai filed a similar complaint in the Norfolk Probate and Family Court (Probate Court). That Probate Court complaint was dismissed with prejudice in 2017. Specifically, the judge found that Sirikanjanachai was estopped from challenging the divorce decree, noting her thirty-three year delay, her subsequent marriage that reflected a reliance on the validity of the divorce decree, and that “the Wife's sole purpose in bringing the present suit [was] to lay claim to marital property that was previously divided between the parties.” Sirikanjanachai did not appeal from that judgment.

Sirikanjanachai filed a third complaint against Florentine on identical grounds in the Hingham District Court in 2017. There, Florentine's motion to dismiss was allowed in October 2018. Sirikanjanachai did not appeal. In March 2019, the first action filed in the Norfolk Superior Court was dismissed with prejudice. A fourth complaint raising the same claims was then filed in the Plymouth Superior Court, which also was subsequently dismissed. Again, there was no appeal.

In April 2019, Sirikanjanachai filed the underlying action (her fifth attempt to vacate the divorce decree), a complaint for divorce from Florentine filed in the Probate Court.² On July 3, 2019, the judge sua sponte dismissed the complaint with prejudice after reviewing the file and accompanying pleadings. The judge wrote that “Judge Casey's Memorandum and Decision, dated June 5, 2017, ․ states that wife is estopped from challenging the validity of the Divorce obtained in the Dominican Republic. Wife remarried in 1987 further indicating her awareness of the validity of that Divorce.” Sirikanjanachai, appearing pro se, now appeals from that dismissal.

Discussion. On appeal, Sirikanjanachai argues that the judge erred in dismissing her complaint without giving her an opportunity to “amend the complaint at least once.” ³ We disagree. Once the time has passed to amend a pleading as of right,⁴ “a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974). At present, Sirikanjanachai did not file a motion to amend, however the denial of such a motion may be justified for a variety of reasons, including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ․ [,] futility of amendment, etc.” Lipsitt v. Plaud, 466 Mass. 240, 254 (2013), quoting Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549-550 (1987).

Here, we see no error of law or abuse of discretion in the judge's action. The judge's sua sponte dismissal of Sirikanjanachai's complaint was legally sound; Sirikanjanachai was estopped from challenging the validity of her earlier divorce from Florentine. See Kosak v. MacKechnie, 24 Mass. App. Ct. 20, 23 (1987). Because the underlying complaint was an attempt to divorce Florentine yet again, any amendment to the complaint would have been futile. See Lipsitt, 466 Mass. at 254. Additionally, the complaint was the latest of at least five related complaints against Florentine filed in courts across Massachusetts, leaving serious doubts about Sirikanjanachai's good faith.⁵

Judgment affirmed.

FOOTNOTES

2.   Sirikanjanachai states in her brief that the purpose of her suit is to acquire proof of divorce from Florentine in order “to obtain additional retirement benefits on another ex-spouse.”

3.   Sirikanjanachai also challenges the reasoning of the 2017 judgment estopping her from attacking the validity of the divorce decree. As noted, infra, she failed to appeal from that judgment. Thus, no issue concerning the propriety of that judgment is before us. See Tiernan v. Tiernan, 9 Mass. App. Ct. 901, 901 (1980).

4.   “A party may amend his pleading once as a matter of course at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served.” Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974).

5.   The judge based his sua sponte dismissal on a “review of the file and accompanying pleadings.” Florentine attached a copy of Sirikanjanachai's divorce complaint to his appellate brief, but none of the accompanying pleadings are provided in the record. See Arch Med. Assocs., Inc. v. Bartlett Health Enters., Inc., 32 Mass. App. Ct. 404, 406 (1992) (appellant has duty to furnish sufficient record, and if she fails to do so, forfeits consideration of any contention for which record is deficient).