NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-320
JERRY THOMAS
vs.
JANE CUNNINGHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jerry Thomas, brought a complaint in equity
against his former wife, Jane Cunningham, raising two claims of
unjust enrichment relating to their 2017 divorce judgment. A
Probate and Family Court judge allowed Cunningham's motion to
dismiss the complaint under Mass. R. Dom. Rel. P. 12 (b) (6) on
the ground, among others, that Thomas's claims were barred by
res judicata. We affirm.
Background. We summarize the factual allegations of the
complaint, which we accept as true. See Ryan v. Mary Ann Morse
Healthcare Corp., 483 Mass. 612, 614 (2019). We also consider
the documents referenced in the complaint and the records of
other court proceedings. See id. at 614 n.5 (documents referenced in complaint may be considered in connection with
rule 12 (b) (6) motion); Reliance Ins. Co. v. City of Boston, 71
Mass. App. Ct. 550, 555 (2008), quoting Schaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000) ("in evaluating a motion under
rule 12 (b) (6), 'matters of public record . . . may be taken
into account'" including "records of other courts in related
proceedings, of which the judge may take judicial notice in any
event").
1. Divorce judgment. The parties were divorced in January
2017. Two aspects of the divorce judgment are relevant to this
appeal.
First, the divorce judgment required Thomas to transfer
half of the balance of his individual retirement accounts (IRA)
to Cunningham. Thomas's attorney was "responsible for drafting
any documents necessary to transfer" the assets. In or about
September 2018, Thomas "carried out the transfer," but because
of "an administrative error, the fund manager did not treat the
transfer as having been made incident to divorce," causing
Thomas to incur a "tax liability."
Second, the divorce judgment required the parties to list
the marital home for sale by April 1, 2017, unless they mutually
agreed to a later date. The net sale proceeds were to be
2 divided equally between the parties with certain offsets. The
parties later agreed to postpone the sale.
2. Prior litigation related to transfer of IRA assets. In
January 2021 Thomas brought a complaint in equity against
Cunningham, seeking an order "[c]ompel[ling] [her] to cooperate
with [Thomas] to arrange retroactive correction of the 2018
transfer" and "other and further relief as [the] Court deem[ed]
meet and just." In May 2021, after a hearing, a Probate and
Family Court judge dismissed the complaint with prejudice as
"[i]mproperly [p]led." Thomas did not appeal.
Three months later, Thomas filed a complaint for civil
contempt against Cunningham, alleging that she violated the
divorce judgment "by failing and refusing to cooperate with the
plaintiff in recharacterizing the transfer as a tax-exempt
rollover transaction incident to divorce." In January 2022,
after a hearing, a different judge found Cunningham not guilty
of contempt. The judge noted, however, that "it appear[ed] that
the intent of the [divorce] judgment was . . . that the
transfers would be exempt from federal taxation." Accordingly,
she ordered that Thomas "may seek to amend his tax filings to
request tax exemption for transfer made; [Cunningham] shall
fully cooperate with same. She shall not be required to pay any
3 additional tax, however, due to [Thomas's] mistake." Thomas did
not appeal.
3. Prior litigation related to marital home. In December
2018 Cunningham filed a complaint for modification of the
divorce judgment, requesting increased support. See Cunningham
v. Thomas, 102 Mass. App. Ct. 135, 136 (2023). Thomas
counterclaimed for reduction of his support obligation and for
permission to access the marital home (where Cunningham and the
parties' children were living) and list it for sale. See id.
On October 23, 2020, the parties signed a stipulation for
partial judgment, settling Thomas's counterclaim regarding the
marital home. In the stipulation "[t]he parties acknowledge[d]
that [Cunningham] ha[d] obtained refinancing of the existing
mortgage loan secured by the [marital home] . . . so as to
remove [Thomas] from said mortgage and relieve him of any
liability with respect to the said mortgage note." The
stipulation went on to provide that "[o]n October 23, 2020
[Thomas] shall convey his interest in the said property to
[Cunningham] by deed to be transferred at closing on the above-
referenced refinancing transaction. Upon the closing of the
said refinancing, [Thomas] waives any further interest in the
said property."
4 In February 2021 a Probate and Family Court judge issued a
modification judgment incorporating the parties' stipulation
regarding the marital home and reducing Thomas's support
obligation. On Cunningham's appeal, however, we vacated the
modification judgment, reinstated Thomas's original support
obligation, and remanded for entry of a new judgment. See
Cunningham, 102 Mass. App. Ct. at 147-148. We also rejected
Thomas's argument "that the issues regarding the marital home
and support modification were intertwined, thus requiring the
parties' stipulation regarding the marital home to be vacated if
the modification judgment is vacated." Id. at 143 n.12. As we
explained, "[t]he stipulation regarding the marital home was not
predicated on the outcome of the modification judgment --
indeed, the parties settled that issue months before the
modification judgment entered." Id. Accordingly, we ordered
that the new judgment to be entered on remand "incorporat[e]
. . . the parties' stipulation for partial judgment dated
October 23, 2020." Id. at 147. Thomas did not seek further
appellate review.
4. Thomas's current claims. In March 2023 Thomas filed
the underlying complaint in equity, asserting two claims of
unjust enrichment.
5 Count I alleges that, as a result of the 2018 transfer of
his IRA assets, Thomas "[i]n effect . . . assumed [Cunningham's]
tax liability with respect to the distribution" and that "it
would be unjust and inequitable for [Cunningham] to retain the
benefit without compensation." As relief, the complaint
requests "judgment in favor of [Thomas] in an amount equivalent
to [Cunningham's] foregone [sic] income tax liability."1
Count II alleges that Thomas conferred a financial benefit
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-320
JERRY THOMAS
vs.
JANE CUNNINGHAM.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Jerry Thomas, brought a complaint in equity
against his former wife, Jane Cunningham, raising two claims of
unjust enrichment relating to their 2017 divorce judgment. A
Probate and Family Court judge allowed Cunningham's motion to
dismiss the complaint under Mass. R. Dom. Rel. P. 12 (b) (6) on
the ground, among others, that Thomas's claims were barred by
res judicata. We affirm.
Background. We summarize the factual allegations of the
complaint, which we accept as true. See Ryan v. Mary Ann Morse
Healthcare Corp., 483 Mass. 612, 614 (2019). We also consider
the documents referenced in the complaint and the records of
other court proceedings. See id. at 614 n.5 (documents referenced in complaint may be considered in connection with
rule 12 (b) (6) motion); Reliance Ins. Co. v. City of Boston, 71
Mass. App. Ct. 550, 555 (2008), quoting Schaer v. Brandeis
Univ., 432 Mass. 474, 477 (2000) ("in evaluating a motion under
rule 12 (b) (6), 'matters of public record . . . may be taken
into account'" including "records of other courts in related
proceedings, of which the judge may take judicial notice in any
event").
1. Divorce judgment. The parties were divorced in January
2017. Two aspects of the divorce judgment are relevant to this
appeal.
First, the divorce judgment required Thomas to transfer
half of the balance of his individual retirement accounts (IRA)
to Cunningham. Thomas's attorney was "responsible for drafting
any documents necessary to transfer" the assets. In or about
September 2018, Thomas "carried out the transfer," but because
of "an administrative error, the fund manager did not treat the
transfer as having been made incident to divorce," causing
Thomas to incur a "tax liability."
Second, the divorce judgment required the parties to list
the marital home for sale by April 1, 2017, unless they mutually
agreed to a later date. The net sale proceeds were to be
2 divided equally between the parties with certain offsets. The
parties later agreed to postpone the sale.
2. Prior litigation related to transfer of IRA assets. In
January 2021 Thomas brought a complaint in equity against
Cunningham, seeking an order "[c]ompel[ling] [her] to cooperate
with [Thomas] to arrange retroactive correction of the 2018
transfer" and "other and further relief as [the] Court deem[ed]
meet and just." In May 2021, after a hearing, a Probate and
Family Court judge dismissed the complaint with prejudice as
"[i]mproperly [p]led." Thomas did not appeal.
Three months later, Thomas filed a complaint for civil
contempt against Cunningham, alleging that she violated the
divorce judgment "by failing and refusing to cooperate with the
plaintiff in recharacterizing the transfer as a tax-exempt
rollover transaction incident to divorce." In January 2022,
after a hearing, a different judge found Cunningham not guilty
of contempt. The judge noted, however, that "it appear[ed] that
the intent of the [divorce] judgment was . . . that the
transfers would be exempt from federal taxation." Accordingly,
she ordered that Thomas "may seek to amend his tax filings to
request tax exemption for transfer made; [Cunningham] shall
fully cooperate with same. She shall not be required to pay any
3 additional tax, however, due to [Thomas's] mistake." Thomas did
not appeal.
3. Prior litigation related to marital home. In December
2018 Cunningham filed a complaint for modification of the
divorce judgment, requesting increased support. See Cunningham
v. Thomas, 102 Mass. App. Ct. 135, 136 (2023). Thomas
counterclaimed for reduction of his support obligation and for
permission to access the marital home (where Cunningham and the
parties' children were living) and list it for sale. See id.
On October 23, 2020, the parties signed a stipulation for
partial judgment, settling Thomas's counterclaim regarding the
marital home. In the stipulation "[t]he parties acknowledge[d]
that [Cunningham] ha[d] obtained refinancing of the existing
mortgage loan secured by the [marital home] . . . so as to
remove [Thomas] from said mortgage and relieve him of any
liability with respect to the said mortgage note." The
stipulation went on to provide that "[o]n October 23, 2020
[Thomas] shall convey his interest in the said property to
[Cunningham] by deed to be transferred at closing on the above-
referenced refinancing transaction. Upon the closing of the
said refinancing, [Thomas] waives any further interest in the
said property."
4 In February 2021 a Probate and Family Court judge issued a
modification judgment incorporating the parties' stipulation
regarding the marital home and reducing Thomas's support
obligation. On Cunningham's appeal, however, we vacated the
modification judgment, reinstated Thomas's original support
obligation, and remanded for entry of a new judgment. See
Cunningham, 102 Mass. App. Ct. at 147-148. We also rejected
Thomas's argument "that the issues regarding the marital home
and support modification were intertwined, thus requiring the
parties' stipulation regarding the marital home to be vacated if
the modification judgment is vacated." Id. at 143 n.12. As we
explained, "[t]he stipulation regarding the marital home was not
predicated on the outcome of the modification judgment --
indeed, the parties settled that issue months before the
modification judgment entered." Id. Accordingly, we ordered
that the new judgment to be entered on remand "incorporat[e]
. . . the parties' stipulation for partial judgment dated
October 23, 2020." Id. at 147. Thomas did not seek further
appellate review.
4. Thomas's current claims. In March 2023 Thomas filed
the underlying complaint in equity, asserting two claims of
unjust enrichment.
5 Count I alleges that, as a result of the 2018 transfer of
his IRA assets, Thomas "[i]n effect . . . assumed [Cunningham's]
tax liability with respect to the distribution" and that "it
would be unjust and inequitable for [Cunningham] to retain the
benefit without compensation." As relief, the complaint
requests "judgment in favor of [Thomas] in an amount equivalent
to [Cunningham's] foregone [sic] income tax liability."1
Count II alleges that Thomas conferred a financial benefit
on Cunningham by "agree[ing] to a modification of the judgment
of divorce whereby he waived his interest in the equity of the
former marital home . . . and conveyed the property to
[Cunningham]" and that "it would be unjust and inequitable for
[Cunningham] to retain the [benefit] conferred." As relief, the
complaint requests "judgment in favor of [Thomas] in an amount
equivalent to one-half of the net equity in the former marital
home as of October 23, 2020."
Discussion. Our review of an allowance of a motion to
dismiss is de novo. See Ryan, 483 Mass. at 614.
1. Count I. The judge correctly dismissed count I of the
complaint because it is barred by claim and issue preclusion.
1 Nowhere does the complaint allege that Cunningham failed to cooperate with Thomas in his efforts to amend his tax filings.
6 We therefore need not reach Cunningham's alternative argument
that count I fails to state a claim of unjust enrichment.
Claim preclusion has three elements: "(1) the identity or
privity of the parties to the present and prior actions,
(2) identity of the cause of action, and (3) prior final
judgment on the merits." Kobrin v. Board of Registration in
Med., 444 Mass. 837, 843 (2005), quoting DaLuz v. Department of
Corr., 434 Mass. 40, 45 (2001). Here, the May 2021 judgment
dismissing Thomas's first equity complaint and the January 2022
contempt judgment each have claim preclusive effect on count I.
Both prior actions indisputably involved the same parties as in
this case and resulted in a final judgment on the merits. In
addition, the prior causes of action were identical to the
present one for purposes of claim preclusion because they
"derived from the same transaction or series of connected
transactions," namely, Thomas's transfer of his IRA assets to
Cunningham. Saint Louis v. Baystate Med. Ctr., Inc., 30 Mass.
App. Ct. 393, 399 (1991). Thomas does not dispute this.
Instead, he argues that claim preclusion does not apply because
"[i]n both prior actions, . . . he sought relief in the form of
specific performance," whereas "[h]is current claim . . . seeks
to equalize the transfer of retirement assets by restitution."
This argument disregards the settled principle that "[a] party
7 cannot preserve the right to bring a second action after the
loss of the first, merely by having circumscribed and limited
the theories of recovery opened by the pleadings in the first."
Mackintosh v. Chambers, 285 Mass. 594, 597 (1934). See Baby
Furniture Warehouse Store, Inc. v. Meubles D&F Ltee, 75 Mass.
App. Ct. 27, 34 (2009), quoting Charlette v. Charlette Bros.
Foundry, Inc., 59 Mass. App. Ct. 34, 44 (2003) ("claim
preclusion will apply even though a party is prepared in a
second action to present different evidence or legal theories to
support his claim or seeks different remedies").
Furthermore, the January 2022 contempt judgment has issue
preclusive effect on count I. 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." Kobrin, 444
Mass. at 843, quoting Heacock v. Heacock, 402 Mass. 21, 23 n.2
(1988). For issue preclusion to apply, "the issue decided in
the prior adjudication must have been essential to the earlier
judgment." Kobrin, supra at 844, quoting Tuper v. North Adams
Ambulance Serv., Inc., 428 Mass. 132, 134-135 (1998). Here, the
judge in the contempt action found Cunningham not in contempt
and ordered that "[Cunningham] shall not be required to pay any
additional tax . . . due to [Thomas's] mistake." This is the
8 same issue raised by count I -- whether Thomas is entitled to
compensation from Cunningham because he "assumed [her] tax
liability with respect to the distribution" -- and Thomas raises
no argument that it was not essential to the contempt judgment.
Count I is thus independently barred by issue preclusion.
2. Count II. The judge correctly dismissed count II
because it is likewise barred by issue preclusion. The essence
of this claim, as Thomas explains in his brief, is that he
entered into the October 23, 2020 stipulation and exchanged his
equity in the marital home "for the expectation of a modified
support obligation." Thomas argues that, because we "unraveled"
this exchange by vacating the modification judgment on appeal,
barring him now from litigating the issue of his home equity
"would leave only an inequitable forfeiture." This presents the
same question that we resolved in our earlier decision, namely,
whether "the issues regarding the marital home and support
modification were intertwined" such that the parties'
stipulation would have to be vacated were the modification
judgment vacated. Cunningham, 102 Mass. App. Ct. 143 n.12.
Concluding they were not intertwined, we ordered that a new
judgment enter on remand incorporating the stipulation. See id.
at 147. The issue raised by count II has thus been litigated
9 and decided, and Thomas again raises no argument that it was not
essential to the judgment.
We also agree with Cunningham that count II fails to
plausibly state a claim for unjust enrichment because Thomas
agreed in the stipulation to "waive[] any further interest in
the [marital home]" and in exchange Cunningham agreed to
refinance the existing mortgage loan so as to "relieve [Thomas]
of any liability with respect to the said mortgage note." An
unjust enrichment claim does not lie "where an express contract
covering the matter exists." York v. Zurich Scudder Invs.,
Inc., 66 Mass. App. Ct. 610, 620 (2006). The dismissal of count
II was proper for this additional reason.
3. Attorney's fees. Cunningham requests an award of her
appellate attorney's fees and double costs on the ground that
that the appeal is frivolous. We agree that the appeal is
frivolous, at least as it pertains to the dismissal of count I.
Accordingly, within fourteen days of the date of this decision,
Cunningham may file an application for fees and costs. The
application shall be limited to those fees and costs incurred in
10 defending that part of the appeal related to the dismissal of
count I. Thomas may have fourteen days to respond. See Fabre
v. Walton, 441 Mass. 9, 10-11 (2004).
Judgment affirmed.
By the Court (Neyman, Shin & Wood, JJ.2),
Clerk
Entered: March 14, 2025.
2 The panelists are listed in order of seniority.