ROBERT D. CAVANAGH vs. VIOLET M. CAVANAGH.

O'CONNOR, J. A judge of the Probate and Family Court allowed the defendant's motion to dismiss the plaintiff's complaint for annulment of the parties' marriage. The plaintiff appealed to the Appeals Court and we transferred the case to this court on our own motion. We affirm the judgment of dismissal.

The material allegations of the complaint are as follows. At the time the complaint was filed, both parties were residents of Rhode Island. On September 20, 1954, while the plaintiff was domiciled in Massachusetts, he and the defendant "went through a marriage ceremony" in Rhode Island. They then lived together as husband and wife until about December 1,

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1971, when they separated. The parties had lived in Massachusetts from 1954 to 1959 and from 1960 to 1962. In 1962 they moved to Rhode Island. The complaint states that the plaintiff doubts the validity of his marriage because, contrary to the representations that the defendant had made to the plaintiff at the time of their marriage, the defendant had been previously married and that marriage had never been dissolved. The complaint also alleges that in December, 1971, "the defendant ... filed a Petition For Divorce in the Family Court for Newport, Rhode Island .... Said divorce petition was dismissed on the ground that Violet Cavanagh was not legally married to Robert Cavanagh because of a prior existing valid marriage .... Said Rhode Island Family Court refused to grant Robert Cavanagh an annulment but did enter a judgment of divorce ab initio." The complaint prays for an annulment of the parties' marriage and for an equitable distribution of the parties' property.

The defendant's motion to dismiss was grounded on the failure of the complaint to state a claim upon which relief can be granted. That ground, in turn, was based on the allegation in the complaint that the judgment in Rhode Island has res judicata effect in this Commonwealth. See Mass. R. Dom. Rel. P. 12 (b) (6). The motion also was based on the failure of the plaintiff to meet the residency requirements of G. L. c. 207, Section 14. [Note 1] The judge allowed the motion and placed this endorsement on it: "Allowed; further complaint for annulment may be filed when jurisdiction is conferred via G. L. c. 207, Section 14." It appears from the endorsement that the judge's reason

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for dismissing the complaint was the plaintiff's failure to meet the residency requirements of c. 207, Section 14.

On appeal, the plaintiff argues that the residency requirements of c. 207, Section 14, are unconstitutional. We do not address that question, however, because, regardless of the constitutionality of c. 207, Section 14, it is clear that the complaint fails to state a claim upon which relief can be granted and the motion to dismiss was properly allowed.

Res judicata is an affirmative defense, see Mass. R. Dom. Rel. P. 8 (c), that is ordinarily raised in an answer to the complaint. However, if the complaint shows on its face the existence of an affirmative defense, the complaint does not state a claim upon which relief can be granted, and a motion to dismiss under Mass. R. Dom. Rel. P. 12 (b) (6) is appropriate. See Whitehouse v. Sherborn, 11 Mass. App. Ct. 668, 676 (1981); J.W. Smith & H.B. Zobel, Rules Practice Section 12.13 (1974).

The complaint in this case shows on its face that the Family Court in Rhode Island dismissed the defendant's complaint for divorce from the plaintiff on the ground that due to a prior existing valid marriage the parties were never validly married. The complaint also shows that the court granted the plaintiff a "divorce ab initio." The complaint may fairly be construed as alleging that the Rhode Island Family Court had subject matter jurisdiction and jurisdiction over both parties, and that the judgment was final in Rhode Island, as indeed it was. See Cavanagh v. Cavanagh, 118 R.I. 609, 612 (1977).

The plaintiff argues that the judgment in Rhode Island has no res judicata effect that would preclude him from now litigating his right to an annulment. Central to his argument is that he did not have an opportunity in Rhode Island to obtain an annulment, which he seeks here, because Rhode Island, he contends, does not grant annulments. [Note 2] We fail to see the logic

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in the plaintiff's argument. It is clear that regardless of whether the Family Court in Rhode Island annulled the plaintiff's marriage, as it appears to have done, or dissolved it, the status of the plaintiff's marriage was conclusively established by that court's judgment.

Article 4, Section 1, of the United States Constitution, the full faith and credit clause, requires that the courts of this Commonwealth give to the judgment of the Family Court in Rhode Island the same finality that it is accorded in Rhode Island. Sutton v. Leib, 342 U.S. 402, 406-409 (1952) (the decree of a New York court annulling a Nevada marriage held to be entitled to full faith and credit in Illinois). Poor v. Poor, 381 Mass. 392, 393 (1980) (foreign divorce entitled to full faith and credit in Massachusetts). Robbins v. Robbins, 343 Mass. 247, 250 (1961) (foreign annulment entitled to full faith and credit in Massachusetts). The judgment of the Rhode Island court has established with finality the status of the plaintiff's marriage. Therefore, the plaintiff is precluded from relitigating the same matter in this Commonwealth. The judge did not err in dismissing the complaint. [Note 3]

Judgment affirmed.