DONALD H. JACKSON, JR., d/b/a THE JOHN GALT ASSETS COMPANY v. PAUL KEATING.

On May 1, 2013, Rachel Keating, and defendant Paul Keating, as, respectively, wife and husband, made arrangements to live separately and entered into a separation agreement, which was filed in the Plymouth County Probate and Family Court ("Probate Court"). The Probate Court subsequently issued a Judgment of Divorce Nisi, which became a final Judgment of Divorce on July 31, 2013. After the divorce judgment issued, the former wife, Rachel Keating, sold her interest in the former marital home located at 59 North Avenue in Abington ("the property") to the present plaintiff, Donald H. Jackson. Mr. Jackson filed a petition to partition the property in this court pursuant to G.L. c. 241, § 1, on August 13, 2018. The defendant has moved to dismiss the petition for partition. For the reasons stated below, and treating the motion as one to dismiss for lack of subject matter jurisdiction, 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.

The complaint and other materials submitted by the parties, including the separation agreement dated May 1, 2013 and a certificate of the Judgment of Divorce entered in the Probate Court, establish the following facts, which are accepted as true for the purposes of this motion. On May 1, 2013, the parties jointly executed a separation agreement. This agreement was subsequently incorporated into and made part of the Probate Court's Judgment of Divorce Nisi, and the resulting final divorce judgment dated July 31, 2013. The parties have not informed the court otherwise, and the court concludes that, as the separation agreement called for the disposal of the real estate to take up to two years, the separation agreement did not merge with the judgment and survived and remains as an independent contract. The separation agreement, in relevant part, provided that the husband would continue to reside at the property, the parties would obtain an appraisal of the fair market value of the property, and the husband would refinance the existing mortgage in order to take the wife's name off the mortgage, and pay her one-half of the equity, and for her to presumably deed her interest in the property to the husband. The agreement further provided that in the event the husband failed to refinance the property within twenty-four months from the date of the agreement, the property would be placed on the market with a reputable real estate brokerage company and sold, with the wife receiving one-half of the proceeds, with certain adjustments. The husband failed to refinance, and the wife conveyed her one-half undivided interest in the property to the plaintiff Donald Jackson by a deed dated July 20, 2018 and recorded with Plymouth County Registry of Deeds in Book 50074, Page 342. The plaintiff filed this action seeking partition of the property on August 13, 2018.

The plaintiff contends that as a successor in interest to the former wife of the defendant, he is entitled to pursue his petition to partition the property the parties jointly own pursuant to G.L. c. 241, § 1 because he and the defendant 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."). As a successor to the wife's interest, the plaintiff is a tenant in common with the defendant.

While the stated basis for the motion to dismiss is not explicitly subject matter jurisdiction, to the extent the defendant has failed to raise subject matter jurisdiction, the court is permitted to consider a question of subject matter jurisdiction sua sponte. Talmo v. Zoning Bd. of Appeals of Framingham, 93 Mass. App. Ct. 626 (2018). It appears to the court that the plaintiff, as a successor in interest to the wife in the divorce action, is barred from pursing a petition for partition in the Land Court based on the doctrine of collateral estoppel, or issue preclusion, because the disposition of the property was previously litigated, and any dispute with reference to the separation agreement is properly the subject of an action to enforce the settlement in the Probate Court. 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 petition and the records of the Probate Court proceedings, including the separation agreement, the court can answer all four questions in the affirmative. First, there was a final judgment on the merits in the prior divorce proceeding. Second, the plaintiff in the present case is a successor in interest in privity with the wife in the prior divorce proceeding. See O'Donoghue v. Commonwealth, 93 Mass. App. Ct. 156 (2018) (judgment in title claim dating to 1830 binding on present-day successors in interest). "[J]udgment that determines interest in real property '[h]as preclusive effects upon a person who succeeds to the interest of a party to the same extent as upon the party himself.'" Id. at slip opinion p. 4, quoting Restatement (Second) of Judgments, § 43(1)(b) (1982). Third, the disposition of the marital home was decided in the prior divorce proceeding, and is the same issue plaintiff seeks to relitigate here. Finally, 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 separation agreement, which was incorporated in the Probate Court's Judgment of Divorce Nisi and ultimately, the final divorce judgment.

The plaintiff may claim that there are partition cases in support of an argument that this court has jurisdiction to hear a partition claim after the disposition of the property was previously decided and incorporated in a 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 an argument 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);

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 separation agreement in the present case, is a contract executed by the plaintiff's predecessor in title that is binding on him, and which precludes him from partitioning the property in this court. He stands in all relevant respects in the shoes of the former wife.

Accordingly, the defendant's motion to dismiss is ALLOWED.

Judgment to enter accordingly.