KEVIN HAMEL v. GABRIELA HAMEL, PAUL M. SUSCHYK, and MARIE B. McGUIRK.

Kevin Hamel complains that a release deed for a property in Townsend given by his former wife, Gabriela Hamel, to Johanna Giwosky, the woman who originally conveyed her the property, was ineffective to convey title because Giwosky had passed away. This, he argues, constituted a fraudulent conveyance because Gabriela Hamel’s statement in the Separation Agreement, incorporated into their divorce judgment, that neither party had an interest in real estate, was untrue, and, therefore, he has an interest in the property. Because (a) a prior judgment of the Superior Court divested Gabriela Hamel of title in the property and vested it in Giwosky before her death and before the release deed, (b) any attempt to undo that judgment must be brought in the Superior Court, and (c) any complaint about the Separation Agreement and divorce judgment is solely within the jurisdiction of the Probate and Family Court, this action must be dismissed without prejudice for lack of subject matter jurisdiction.

Procedural Background

Kevin Hamel filed his complaint on May 15, 2014, naming as defendants Gabriela Hamel, Paul M. Suschyk, and Marie B. McGuirk. Defendants Paul M. Suschyk and Marie B. McGuirk filed their respective answers on June 30, 2014; defendant Gabriela Hamel filed her answer on July 2, 2014. The case management conference was held on August 26, 2014. At the case management conference, the court raised the issue of subject matter jurisdiction sua sponte, and set a briefing schedule for motions for summary judgment on this question.

On December 5, 2014, the defendants filed Defendants Gabriela Hamel, Marie B. McGuirk, and Paul M. Suschyk Motion for Summary Judgment on Plaintiff’s Complaint to Set Aside Default (Defendants’ Summary Judgment Motion), their Statement of Material Facts in Support of Motion for Summary Judgment, and Defendants Gabriela Hamel, Marie B. McGuirk, and Paul M. Suschyk Memorandum of Law in Support of Motion for Summary Judgment on Plaintiff’s Complaint to Set Aside Default. On January 26, 2015, plaintiff Kevin Hamel filed Plaintiff, Kevin Hamel’s Motion for Summary Judgment on His Complaint to Set Aside Fraudulent Conveyance (Plaintiff’s Summary Judgment Motion), the Affidavit of Kevin Hamel, Plaintiff, in Support of His Motion for Summary Judgment on His Complaint to Set Aside Fraudulent Conveyance of 150 Ball Road Townsend, MA, and Plaintiff Kevin Hamel, Memorandum of Law in Support of Motion for Summary Judgment on Plaintiff’s Complaint to Set Aside Fraudulent Conveyance. On January 30, 2015, the defendants filed Defendants Gabriela Hamel, Marie B. McGuirk, and Paul M. Suschyk Reply Memorandum to Kevin Hamel’s Motion for Summary Judgment on Plaintiff’s Complaint to Set Aside Fraudulent Conveyance. By a letter dated March 24, 2015 and filed with the court on March 30, 2015, plaintiff asked the court to consider certain matters in preparing its order on the cross-motions for summary judgment.

The court heard arguments on the cross-motions for summary judgment on March 24, 2015, and took the cross-motions under advisement. On June 22, 2015, plaintiff filed a copy of Plaintiff’s Motion to Vacate Divorce Judgment in Middlesex Probate and Family Court No. MI11D 0583DR. This memorandum and order follows.

Summary Judgment Standard

Summary judgment may be entered if the “pleadings, depositions, answers to interrogatories, and responses to requests for admission… together with the affidavits … show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c). “Summary judgment is appropriate when, ‘viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Regis Coll. v. Town of Weston, 462 Mass. 280 , 284 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). “The burden on the moving party may be discharged by showing that there is an absence of evidence to support the non-moving party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706 , 711 (1991).

In viewing the factual record presented as part of the motion, the court is to draw “all logically permissible inferences” from the facts in favor of the non-moving party. Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202 , 203 (1991). Where, as here, the parties have presented cross-motions relying solely on undisputed recorded instruments, the court may interpret the meaning of these instruments, including the intent of the parties to the instruments, as a matter of law. World Species List – Natural Features Registry Inst. v. Reading, 75 Mass. App. Ct. 302 , 305 (2009); Rivers v. Warwick, 37 Mass. App. Ct. 593 , 596 (1994); see Asian Am. Civic Ass’n v. Chinese Consolidated Benevolent Ass’n of New Eng., Inc., 43 Mass. App. Ct. 145 , 148 (1997).

Factual Background

The following facts are undisputed:

1. Gabriela Hamel and Kevin Hamel were married on February 16, 2002. They resided together at 150 Ball Road, Townsend, Massachusetts (the Property) until February 10, 2011, when the an Abuse Prevention Order entered in the Ayer District Court, # 1148 RO 32, gave use and occupancy of the Property to Gabriela Hamel.

2. The Property was conveyed to Gabriela Hamel for nominal consideration by a deed from Johanna Giwosky dated July 12, 2007 and recorded in the Middlesex South Registry of Deeds (registry) in Book 52422, Page 171, on March 17, 2009 (the Giwosky Deed). At that time, Marie B. McGuirk was guardian for Johanna Giwosky by a decree entered in the Worcester Probate and Family Court on November 16, 2007.

3. On or about May 4, 2009, McGuirk, in her capacity as guardian for Johanna Giwosky, filed a complaint against Gabriella Hamel in the Middlesex Superior Court, entitled Marie B. McGuirk, in her capacity as Guardian for Johanna Giwosky v. Gabriela Hamel, case no. MICV2009-1702 (the Superior Court Action). The complaint in the Superior Court Action sought rescission of the Giwosky Deed.

4. On November 9th, 2009, judgment was entered in the Superior Court Action (the Superior Court Judgment). The Superior Court Judgment found (a) that “Johanna Giwosky lacked the requisite mental capacity to comprehend and understand the nature of her act when she executed” the Giwosky Deed, (b) that the Giwosky Deed was a legal nullity and had no legal force and effect, and (c) that the Property was and remained the property of Johanna Giwosky.

5. Johanna Giwosky died on May 21, 2010.

6. On or about February 11, 2011 or shortly thereafter, Gabriella Hamel filed a Complaint for Divorce against Kevin Hamel in the Middlesex Probate and Family Court, docket no. MI 11D0583 (the Divorce Action).

7. On June 1, 2011, Gabriella Hamel executed a Release Deed to the Property, conveying it to Johanna Giwosky, which was recorded in the registry in Book 57137, Page 97 (the Release Deed).

8. On May 22, 2012, Kevin Hamel and Gabriella Hamel entered into a Separation Agreement in the pending divorce action. The Separation Agreement affirmed that neither party had any legal or equitable interest in any real estate.

9. The terms of the Separation Agreement between the Plaintiff Kevin Hamel and the Defendant Gabriella Hamel were incorporated into a Judgment of Divorce Nisi on May 22, 2012 (the Divorce Judgment).

Discussion

In his complaint, Kevin Hamel seeks to set aside as fraudulent the June 1, 2011 Release Deed purporting to convey the Property to Johanna Giwosky. In the Plaintiff’s Summary Judgment Motion Kevin Hamel argues that because Ms. Giwosky was deceased when Gabriela Hamel gave the Release Deed, the Property was never conveyed. Therefore, he argues, Gabriela Hamel owned the Property when she stated in the Separation Agreement that neither party had an interest in real estate and that he is entitled to establish his interest in the Property. In the Defendants’ Summary Judgment Motion, they argue that this court lacks subject matter jurisdiction over this claim because Kevin Hamel’s claim is precluded or judicially estopped by the Divorce Judgment.

The court need not address the preclusion and estoppel arguments. There are three reasons why the court lacks subject matter jurisdiction over this action and the complaint must be dismissed. First, as a matter of law, even if Johanna Giwosky was living at the time the Release Deed was executed, it would be of no effect. The 2009 Superior Court Judgment declared that the Giwosky Deed was a legal nullity and had no legal force and effect, and that title to the Property remained with Johanna Giwosky. Therefore, Gabriella Hamel did not have an interest in the Property when she executed the Release Deed on June 1, 2011. Given that Gabriella Hamel did not have an interest in the Property after the Superior Court Judgment, Kevin Hamel could not have any legal interest in the Property at the time of the Separation Agreement, the Divorce Judgment, or this complaint.

Second, if the plaintiff takes issue with the Superior Court judgment, he must seek to vacate, alter or amend that judgment in the Superior Court from which it issued. The Land Court does not have jurisdiction to adjudicate the merits of the Superior Court Judgment.

Finally, to the extent that Kevin Hamel asserts some kind of fraudulent action by the defendants in connection with the Separation Agreement or the Divorce Judgment, he must seek relief in the Probate and Family Court. The Separation Agreement is explicitly incorporated into the Divorce Judgment. The Land Court does not have jurisdiction to alter or amend that judgment. The Probate and Family Court has exclusive original jurisdiction of actions for divorce. G.L. c. 215, § 3.

This court lacks subject matter jurisdiction over plaintiff Kevin Hamel’s complaint. The complaint must be dismissed. As the dismissal is for lack of subject matter jurisdiction, it shall be without prejudice. “Dismissals for lack of subject matter jurisdiction are ordinarily without prejudice because dismissal for lack of jurisdiction is typically not an adjudication on the merits.” Abate v. Fremont Investment & Loan, 470 Mass. 821 , 836 (2015).

Conclusion

For the foregoing reasons, the Defendants’ Summary Judgment Motion is ALLOWED, and the Plaintiff’s Summary Judgment Motion is DENIED. The complaint is DISMISSED WITHOUT PREJUDICE.

SO ORDERED