SUELY SPARKS v. SANDRA SPARKS.

In this action plaintiff Suely Sparks, the second wife of the late Gary Sparks, seeks a declaration that she owns the property at 27 Woodleigh Road in Watertown free and clear of any contrary claim by Mr. Sparks' first wife, defendant Sandra Sparks, from whom he was divorced. The problem with that is this. Sandra obtained a joint interest in that property (joint with Gary) in accordance with their Separation/Divorce Agreement (Jan. 10, 2006), [Note 1] and she has never conveyed her interest. Gary has now died. If Sandra's interest still remains and has not otherwise been altered, she has claim to full title to the property under the laws of joint tenancy. See Attorney Gen'l v. Clark, 222 Mass. 291 , 293-294 (1915).

Some two and one-half years after the divorce and its associated judgment, complaints for contempt [Note 2] and for equitable division of the marital assets [Note 3] were filed in the Probate & Family Court. These too were resolved by stipulation of the parties, incorporated into the court's Judgment of Dismissal (Nov. 10, 2008). That stipulation had a number of interlocking parts, not only a division of the various properties the parties owned and major items of personal property, but also financial payments and other obligations intertwined with that division. That agreement allowed Gary to "keep" the Watertown property, [Note 4] but he failed to comply with his financial obligations to Sandra as required by the stipulation. Gary deeded Sandra his interests in the properties the stipulation said she was to keep, but Sandra never deeded Gary her interests in the ones he was to keep. So far as the record shows, Gary never filed a motion to compel Sandra to do so. The reasons for this are unknown, but might possibly be related to Gary's breach of his financial obligations. See Lafayette Place Assocs. v. Boston Redev. Auth., 427 Mass. 509 , 519 (1998) (material breach by one party excuses performance by other).

Sandra subsequently brought new contempt proceedings (Jul. 14, 2011), which were addressed in yet another stipulation of the parties incorporated into an order of the court (Oct. 5, 2011). Once again, Gary failed to fulfill those obligations.

On June 6, 2013, for $1, Gary conveyed his interest in the Watertown property to himself and his new wife Suely as tenants by the entirety. Suely's claim to "free and clear" title to this property is based on this deed. It apparently was discussed in connection with Gary's March 7, 2016 complaint for modification of his financial obligations and Sandra's May 26, 2016 cross-motion for contempt, in which, in an interlocutory order (Mar. 22, 2017), the court refused to change Gary's financial obligations to Sandra but noted, in dicta, that the entirety form of ownership "protects the realty from creditors, at least during the life of the non-debtor owner" and thus would require the consent of the non-debtor to borrow against. However, there was no discussion or ruling regarding whether the court would consider Gary's equity in that property (over $420,000) to be reachable in satisfaction of Gary's obligations to Sandra (i.e., whether his transfer of ownership to Suely for only $1 would be effective to shield it from Sandra's claims). Further proceedings were scheduled in that case, but Gary apparently died before that issue was addressed.

That Sandra's claim to the property is a serious, unresolved question — a true "cloud on title" — is shown by the refusal of Suely's bank to make a home equity line of credit on the property because of that "cloud." See Verified Complaint at 5, ¶18. I concur that the question is a serious one, needing resolution. This, however, is not the court that can, or should, resolve it. Since it concerns the proper interpretation and enforcement of the Probate & Family Court's orders in the divorce and equitable division cases, the proper court to address it is the Probate & Family Court on a motion to compel Sandra to release her interest, which might very well be conditioned on the full satisfaction of Gary's obligations to Sandra. The Probate & Family Court has full equitable powers to both determine the question and fashion the appropriate remedies.

For these reasons, this case is DISMISSED, in its entirety, WITHOUT PREJUDICE to Sandra's right to present its issues to the Probate & Family Court for that court to resolve.

Judgment shall enter accordingly.

SO ORDERED.