Abraham KASPARIAN, Jr. v. Constance Marie JAEGER.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2002, plaintiff Abraham Kasparian, Jr. attacked his then wife, defendant Constance Marie Jaeger, with a knife. He was convicted of armed assault with intent to murder and other offenses stemming from the attack. See Commonwealth v. Kasparian, 70 Mass. App. Ct. 1115 (2007). While the plaintiff was incarcerated, the defendant filed for divorce. The parties’ assets were divided pursuant to a separation agreement that was incorporated into a judgment of divorce nisi. The separation agreement appointed a receiver to “maintain[ ] all assets of the marital estate, including realty and personalty.” This action is the most recent in a series of actions that the plaintiff has filed against the defendant and others alleging breaches of the separation agreement. See, e.g., Kasparian v. Santinello, 95 Mass. App. Ct. 1122 (2019) (appeal from five consolidated actions filed by plaintiff). Here, a Superior Court judge dismissed the action, finding that the doctrine of res judicata barred the plaintiff's claims because the claims were or could have been brought in prior proceedings. We affirm, and allow the defendant's request for appellate attorney's fees.
Discussion. “We review an order on a motion to dismiss de novo. Factual allegations are sufficient to survive a motion to dismiss if they plausibly suggest that the plaintiff is entitled to relief” (citation omitted). A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424 (2018), citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Here, the plaintiff cannot establish any entitlement to relief because res judicata bars his claims.
“ ‘Res judicata’ is the generic term for various doctrines by which a judgment in one action has a binding effect in another. It comprises ‘claim preclusion’ and ‘issue preclusion.’ ” Duross v. Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833, 836 (2020), quoting Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). The doctrine that is relevant here, claim preclusion, is based on “[c]onsiderations of fairness and the requirements of efficient judicial administration [which] dictate that an opposing party in a particular action as well as the court is entitled to be free from continuing attempts to relitigate the same claim.” Baby Furniture Warehouse Store, Inc. v. Meubles D & F Ltée, 75 Mass. App. Ct. 27, 33 (2009), quoting Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 688 (1974). Accordingly, 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.” Duross, supra, quoting Heacock, supra at 23.
The factual basis for the plaintiff's claims in this action is that the defendant improperly withheld certain personal property to which the plaintiff was entitled under the terms of the parties’ 2004 separation agreement. Because the issues related to any breach of the separation agreement have been fully litigated in prior actions, the judge properly dismissed this action on res judicata grounds. See Saisi v. Board of Trustees of State Colleges, 6 Mass. App. Ct. 949, 949 (1978) (res judicata defense may be raised by motion to dismiss). That the plaintiff has pleaded several different legal theories that allegedly allow him to recover personal property from the defendant does not change this result. “The statement of a different form of liability is not a different cause of action, provided it grows out of the same transaction, act, [or] agreement, and seeks redress for the same wrong.” TLT Const. Corp. v. A. Anthony Tappe & Assocs., Inc., 48 Mass. App. Ct. 1, 8 (1999), quoting Mackintosh v. Chambers, 285 Mass. 594, 596 (1934). The plaintiff's claims were all “based on the same set of operative facts and seek redress for the same wrongs” as his prior actions, so his claims are precluded. Id.
On appeal, the plaintiff does not address the issue of res judicata, arguing instead that if his complaint did not state a claim, he should have been given leave to amend. But amending would be futile given our res judicata holding, so there was no error in the judge's decision to grant the defendant's motion to dismiss with prejudice. See Johnston v. Box, 453 Mass. 569, 583 (2009), quoting All Seasons Servs., Inc. v. Commissioner of Health & Hosps. of Boston, 416 Mass. 269, 272 (1993) (“Courts are not required to [allow amendment of] complaints where ‘the proposed amendment ․ is futile’ ”).
The plaintiff also devotes a significant portion of his brief to the question whether he is entitled to proceeds from the life insurance policy of his former father-in-law, whom the plaintiff alleges died sometime after 2016. He is not. Property interests acquired after the dissolution of a marriage are not subject to division under G. L. c. 208, § 34. See Davidson v. Davidson, 19 Mass. App. Ct. 364, 370 (1985). Here, even assuming that the life insurance policy was in effect during the parties’ marriage, the defendant's interest in the insurance proceeds was a mere expectancy during the marriage; while he was alive, the defendant's father had the right to change the beneficiary of the insurance. See Pfannenstiehl v. Pfannenstiehl, 475 Mass. 105, 111-112 (2016) (spouse's interest in trust is part of marital estate only if spouse has “fixed and enforceable” property right based on attributes of trust); Davidson, supra at 374 (husband's expected inheritance under his mother's will not part of marital estate because mother was alive and could change will). Thus, the defendant did not have a property interest in the insurance proceeds until she acquired a fixed and enforceable right to them upon her father's death -- at least twelve years after the defendant divorced the plaintiff. For that reason, the plaintiff has not and cannot establish any entitlement to the proceeds of the life insurance policy. See Davidson, supra.
The plaintiff also argues that the defendant converted her motion to dismiss into a motion for summary judgment by representing at oral argument that she had not received any death benefits when her father died and that, as a result, the plaintiff was entitled to discovery on this issue before the judge dismissed his case. We disagree. The trial judge correctly determined that any death benefit the defendant might have received when her father died was not part of the marital estate as a matter of law. His decision did not depend on the defendant's representations. Indeed, the judge credited the plaintiff's allegations about the existence of the death benefit and when it would have been paid. Accordingly, whether the defendant received a death benefit was not relevant and the plaintiff was not entitled to discovery on the issue.2
Finally, we allow the defendant's request for attorney's fees and costs in litigating this appeal because we conclude that the plaintiff's appeal is frivolous. The plaintiff's appellate brief “consist[ed] almost entirely of irrelevant ․ arguments,” Avery v. Steele, 414 Mass. 450, 456 (1993), and he had “no reasonable expectation of a reversal under well-settled law.” Marabello v. Boston Bark Corp., 463 Mass. 394, 400 (2012). The defendant may file with this court materials detailing and supporting the requested attorney's fees and costs within fourteen days of the date of the rescript, in accordance with the procedures described in Fabre v. Walton, 441 Mass. 9, 10–11 (2004), and Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019). The plaintiff shall have fourteen days thereafter to file any response.
2. To the extent we do not address other contentions made by the plaintiff, they “have not been overlooked. We find nothing in them that requires discussion.” Department of Revenue v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).