MISC 15-000441

March 1, 2016

Essex, ss.



In 2014, the plaintiff, Nadia Rahily, and defendant, Aziz Guermoudi, as, respectively, wife and husband, made arrangements to live separately and filed a joint petition for divorce in the Probate and Family Court (“Probate Court”). The Probate Court allowed the joint petition, and issued a Judgment of Divorce Nisi on November 17, 2014, which became a final judgment on February 17, 2015. After the divorce judgment issued, the plaintiff filed her petition to partition the marital home at 96 Central Street, Abington (“the property”) in this court pursuant to G.L. c. 241, § 1, on October 23, 2015. The defendant has moved to dismiss the petition for partition pursuant to Mass. R. Civ. P. 12(b)(1) and 12(b)(6). For the reasons stated below, the motion to dismiss is ALLOWED.

In reviewing a motion to dismiss for lack of subject matter jurisdiction pursuant to Mass. R. Civ. P. 12(b)(1), the court accepts as true the factual allegations in the complaint, as well as any favorable inferences reasonably drawn from them. Ginther v. Comm’r of Ins., 427 Mass. 319 , 322 (1998). In considering subject matter jurisdiction under Rule 12(b)(1), the court may consider matters outside the four corners of the complaint, which are used to support the movant’s claim that the court lacks subject matter jurisdiction. Id., at n.6. In a partition case, this court will allow a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Mass. R. Civ. P. 12(b)(6) if, “the petition to partition fails, on its face, to set forth a proper claim upon which the requested relief may be granted.” Ciambriello v. Altieri, 16 LCR 178 , 179 (2008) (Misc. Case No. 07 MISC 264245) (Grossman, J.).

The complaint and other materials submitted by the parties establish the following facts, which are accepted as true for the purposes of this motion. On August 5, 2014, the parties jointly executed a divorce agreement. [Note 1] This agreement was subsequently “incorporated and made part of” the Probate Court’s Judgment of Divorce Nisi issued on November 17, 2014, and the resulting final divorce judgment dated February 17, 2015. [Note 2] The Judgment of Divorce Nisi, although incorporating the divorce agreement, provided that the divorce agreement “shall not merge and shall survive and remain as an independent contract.” [Note 3] The divorce agreement, in relevant part, provided, “Six months from the date of the hearing on the divorce, the Husband shall pay the Wife the sum of $60,000.00 representing her equitable share of the home. Upon receipt of said payment the Wife shall execute a Quitclaim Deed relinquishing all right, title and interest of the Wife in said property. Upon such time as the Wife receives payment in full of the property settlement set forth herein the Wife may reside in and have full access to her marital home.” [Note 4]

On October 22, 2015, the plaintiff filed her petition to partition the property after she did not receive the $60,000.00 from the defendant on the agreed upon date. At present, the plaintiff has not received her monetary share pursuant to the divorce agreement, and she has not conveyed her interest in the property to the defendant.

The plaintiff contends that she is entitled to pursue her petition to partition the property the parties jointly own pursuant to G.L. c. 241, § 1 because she and her former husband own the property as tenants in common as a result of the divorce judgment. See Blitzer v. Blitzer, 361 Mass. 780 , 783 (1972) (“By virtue of the divorce, the estate by the entirety in the locus will [be] terminated and [each former spouse] will own, as tenant in common, a one-half interest.”).

The defendant contends in his motion to dismiss that the plaintiff should be barred from pursing her petition based on the doctrine of collateral estoppel, or issue preclusion, because the disposition of the property was previously litigated. The defendant also asserts that he is entitled to the entire possession and exclusive occupancy of the property per the divorce decree. The defendant contends that there are other remedies available to the plaintiff at the Probate Court and as a result, this court lacks subject matter jurisdiction over this matter.

“The judicial doctrine of issue preclusion, also known as collateral estoppel, provides that ‘when an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive of subsequent action between the parties, whether on the same or a different claim.’” Martin v. Ring, 401 Mass. 59 , 61 (1987), quoting Fireside Motors, Inc. v. Nissan Motor Corp. in U.S.A., 395 Mass. 366 , 372 (1985). “The purpose of the doctrine is to conserve judicial resources, to prevent unnecessary costs associated with multiple litigation, and to ensure the finality of judgments.’” Id., at 61.

Prior to applying the doctrine of collateral estoppel to preclude a party from asserting a claim, this court must affirmatively answer the following four questions: “1) was there a final judgment on the merits in the prior adjudication; 2) was the party against whom estoppel is asserted a party to the prior adjudication; 3) was the issue decided in the prior adjudication identical with the one presented in the action in question; and 4) was the issue decided in the prior adjudication essential to the judgment in the prior adjudication.” Alba v. Raytheon Co., 441 Mass. 836 , 842 (2004). See also Heacock v. Heacock, 402 Mass. 21 , 32 n.2 (1988) (The doctrine of issue preclusion “prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies.”).

Based on the allegations in the complaint and the records of the Probate Court proceedings, the court can answer all four questions in the affirmative: there was a final judgment on the merits in the prior divorce proceeding; the petitioner was a party to the prior divorce proceeding; the disposition of the marital home was decided in the prior divorce proceeding, and is the same issue petitioner seeks to relitigate here; and the issue of the disposition of the marital home was essential to the judgment in the prior proceeding, as it was a significant section of the divorce agreement, which was incorporated in the Probate Court’s Judgment of Divorce Nisi and ultimately, the final divorce judgment.

The plaintiff claims she is nevertheless entitled to pursue her petition to partition under G.L. c. 241, § 1, which provides, “Any person, except a tenant by the entirety, owning a present undivided legal estate in land, not subject to redemption, shall be entitled to have a petition [to partition] in the manner hereinafter provided.” Spouses who jointly own property as tenants by the entirety are not entitled to partition “as tenancy by the entirety creates one indivisible estate in them both which neither can destroy by any separate act.” Bernatavicius v. Bernatavicius, 259 Mass. 486 , 487 (1927). However, a divorce decree “[ends] the legal relationship…which constitutes the essence of that tenancy,” and creates a tenancy in common. Id., at 489-490. When the tenancy in common is established as a result of a divorce judgment, a petitioner is entitled to pursue his partition action. Id., at 490.

The plaintiff cites partition cases in support of her argument that this court has jurisdiction to hear her partition claim after the disposition of the property was previously decided and incorporated in the final judgment of the Probate Court. See generally, Bernatavicius v. Bernatavicius, supra, 259 Mass. at 486; Asker v. Asker, 8 Mass. App. Ct. 634 (1979); Chiminiello v. Chiminiello, 8 Mass. App. Ct. 806 (1979). However, these cases do not support the petitioner’s position as asserted that the court has jurisdiction to relitigate the division of the marital home. The final divorce judgment in all of these cases did not result in the final disposition of the marital home, and only as a result of that omission, the petitioners in these cases were entitled to assert their petitions to partition pursuant to G.L. c. 241, § 1. See Bernatavicius v. Bernatavicius, supra, 259 Mass. at 490 (Court held that petitioner was entitled to partition property not disposed of by the divorce decree); Chiminiello v. Chiminiello, supra, 8 Mass. App. Ct. at 808 (Probate Court judgment concluded that husband was entitled to proceed with his petition for partition of property jointly owned by him and his former wife, which was not disposed of by the divorce decree); Asker v. Asker, supra, 8 Mass. App. Ct. at 635-636 (Two months after the divorce, the plaintiff was allowed to file a petition for partition of the locus, which he and his former spouse held as tenants in common).

While a petitioner is generally entitled to partition property jointly owned by her and her former spouse as tenants in common after a divorce judgment becomes final, a petitioner is not entitled to partition property jointly owned by her and her former spouse in a subsequent proceeding, if the disposition of the property was addressed in the prior divorce judgment. “[When] the marital home has already been effectively divided by the divorce judgment, neither partition nor any other relitigation of that division can be maintained, at least outside the context of that judgment and its possible modification.” Day v. Hart, 65 Mass. App. Ct. 1125 (2006) (Rule 1:28 Decision), quoting Bush v Bush, 402 Mass. 406 , 409 (1988). See also Whitney v. Whitney, 252 Mass. 28 , 31 (1949) (A divorce decree…“cannot be collaterally attacked [and] it settles those matters which were necessarily involved and all issues which are actually tried and determined until reversed, revised or modified.”); Hay v. Cloutier, 389 Mass. 248 , 252 (1983) (“Res judicata would prohibit a property division only where such a division previously has been litigated.”).

Even though a divorce usually converts the legal interests of former spouses who were once in a tenancy by the entirety into a tenancy in common, the state of the petitioner’s legal interest is based on the terms the parties assented to in the divorce agreement. In Pavluvcik v. Sullivan, the husband and wife executed a separation agreement in anticipation of divorce, which provided, in part, that “the marital home was to be sold within two years of the agreement.” Pavluvcik v. Sullivan, 22 Mass. App. Ct. 581 , 582 (1986). This agreement was to be incorporated and merged into the divorce agreement. Id. The wife died after the agreement was approved by the court, but before the judgment was entered. Id., at 582-83. After the wife’s death, the former husband sought a declaration that the agreement was null and void. Id., at 583. The court held that upon the wife’s death, the husband became the sole record title holder of the marital real estate, but “he might still be bound by the agreement to sell the marital real estate and transfer to the wife’s estate a portion of the net proceeds of the sale” if determined by the Probate Court. Id., at 584.

Similarly, even without the preclusive effect of the divorce judgment, the divorce agreement in the present case, as a contract executed by the petitioner, precludes her from partitioning the property in this court.

To the extent the petitioner seeks to justify her action as one for breach of contract or to enforce a contract, her claim has not been denominated as such.

Accordingly, the defendant’s motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(1) and Mass. R. Civ. P. 12(b)(6), is ALLOWED.

Judgment to enter accordingly.


[Note 1] See Divorce Agreement, Exhibit C, Division of Assets, Part. 1, Real Estate, p. 15.

[Note 2] See Plymouth Probate and Family Court, Judgment of Divorce Nisi.

[Note 3] See Id.

[Note 4] See Divorce Agreement, supra, note 1., p. 15.