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22-P-378 Appeals Court

JULIE RABINOWITZ vs. MARK SCHENKMAN.

No. 22-P-378.

Bristol. May 4, 2023. – November 16, 2023.

Present: Vuono, Hand, & Hodgens, JJ.

Contract, Separation agreement, Performance and breach, Implied 

covenant of good faith and fair dealing. Divorce and 

Separation, Separation agreement, Division of property. 

Evidence, Relevancy and materiality, Guilty plea. 

Practice, Civil, Judgment on the pleadings, Affirmative 

defense, Waiver.

Civil action commenced in the Superior Court Department on 

October 16, 2019. 

A motion for judgment on the pleadings was heard by Renee 

P. Dupuis, J.; a motion for reconsideration was considered by 

her; and the case was heard by Jackie A. Cowin, J. 

Mark Booker for the plaintiff.

Charles G. Devine, Jr., for the defendant.

HODGENS, J. To effect the gradual division of property 

under a separation agreement, Mark Schenkman (husband) made 

monthly payments to his former spouse, Julie Rabinowitz (wife). 

After the wife tried to kill the husband, payments ceased. The 
2

wife filed an action for breach of contract in the Superior 

Court, and the husband asserted that the wife's attempt to 

murder him excused his further performance. Following a jurywaived trial, judgment entered for the husband on the contract

claim. We affirm.

Background. The parties married in 1997 and divorced in 

2013 by a judgment of divorce nisi (divorce judgment). The 

divorce judgment incorporated their stipulation, which granted 

the husband sole legal and physical custody of the parties' four 

minor children and deferred for trial the resolution of issues 

involving alimony, child support, and the division of assets. 

The parties thereafter resolved those outstanding issues in a 

separation agreement dated March 17, 2014, which a judge of the 

Probate and Family Court approved and incorporated into an 

amended judgment of divorce nisi (amended divorce judgment) 

dated the same day. All child-related provisions merged with

the amended divorce judgment; the remaining provisions survived 

the judgment as an independent contract. Among other 

provisions, the separation agreement required the husband to pay

the wife $212,000 over five years in sixty equal monthly 

payments of $3,533.33. These payments represented the wife's

share of the marital estate that stemmed from the value of the

husband's ownership of his ongoing dental practice. The 

separation agreement also required the husband to maintain a
3

life insurance policy to secure this property division

obligation in the event that he died before making all the 

payments. The husband made the required payments over the next 

seventeen months through August 1, 2015.

On August 11, 2015, the wife attacked the husband and the 

parties' nine year old son with a hatchet outside the husband's

dental practice. In the pandemonium of the attack, the wife

accused the husband of ruining her "reunification plans" that 

were "in the works" for the children. The husband ceased making 

payments. A grand jury returned five indictments against the 

wife. On December 16, 2015, the wife pleaded guilty to armed 

assault with intent to murder, one count of assault and battery 

by means of a dangerous weapon, one count of assault and 

battery, and two counts of assault by means of a dangerous 

weapon. A Superior Court judge sentenced her to two and onehalf years in the house of correction, one year to serve, the 

balance suspended for ten years of probation. The husband did 

not make any payments to the wife after the attack.

On October 16, 2019, the wife filed a complaint in the 

Superior Court alleging breach of contract by the husband based 

on his failure to make the monthly payments required by the 

separation agreement. Following a jury-waived trial, the judge 

found that the wife's attempt to kill the husband was "part of a 

woefully misguided plan to regain custody of her children" and 
4

was an attempt to interfere with the husband's "buyout" of the 

wife's share in the dental practice. The judge concluded that 

the husband was excused from further performance of the 

separation agreement because the wife's attempt to murder him 

constituted a violation of the covenant of good faith and fair 

dealing implicit in the separation agreement and incorporated 

into the amended divorce judgment.

On appeal, the wife claims that the motion judge erred by 

failing to grant her motion for judgment on the pleadings. She 

also claims that the trial judge erred by (1) taking judicial 

notice of the parties' custody stipulation which was not part of 

the separation agreement; (2) allowing testimony regarding the 

hatchet attack; (3) giving preclusive effect to her guilty 

pleas; and (4) applying the covenant of good faith and fair 

dealing.

Discussion. "The standard of review is well established. 

The findings of fact of the judge are accepted unless they are 

clearly erroneous." T.W. Nickerson, Inc. v. Fleet Nat'l Bank, 

456 Mass. 562, 569 (2010). "We review the judge's legal 

conclusions de novo." Id. After addressing each argument

raised by the wife, we discern no error and affirm.

1. Motion for judgment on the pleadings. The wife claims 

that the motion judge erred by denying her motion for judgment 

on the pleadings because the husband's answer did not deny any 
5

material facts and only recited "boilerplate" affirmative 

defenses. We disagree. A judgment on the pleadings is 

appropriate in "the rare case where the answer admits all the 

material allegations of the complaint." 1973 Reporter's Notes 

to Mass. R. Civ. P. 12 (c), Massachusetts Rules of Court, Rules 

of Civil Procedure, at 25 (Thomson Reuters 2023). "If the 

defendant pleads by denial or by affirmative defense so as to 

put in question a material allegation of the complaint, judgment 

on the pleadings is not appropriate" (emphasis added). Tanner

v. Board of Appeals of Belmont, 27 Mass. App. Ct. 1181, 1182 

(1989). Here, the husband filed a four-page answer that 

included seven affirmative defenses disputing the wife's

performance of contractual obligations and claiming that the 

wife prevented him from performing his obligations. Such 

affirmative defenses showed a factual dispute and "provide[d]

notice to the plaintiff[] of defenses that will be raised." 

Demoulas v. Demoulas, 428 Mass. 555, 575 n.16 (1998). 

Therefore, the motion judge properly denied the motion for 

judgment on the pleadings.

2. Judicial notice of child custody. In her findings and 

conclusions, the trial judge took judicial notice of the 

parties' stipulation incorporated into the divorce judgment that 

"provided that [the husband] would have sole legal and physical 

custody of the [parties'] four minor children." Although the 
6

wife urged the trial judge in a posttrial memorandum to "take 

judicial notice of records of the family court," she now 

contends that the judge erred by taking notice of the

stipulation and argues that the judge should have limited her 

review to the plain language of the separation agreement 

regarding property division (attached as exhibit A to her 

Superior Court complaint). The wife's contrary position in the 

trial court bars her claim on appeal. See Adoption of Astrid, 

45 Mass. App. Ct. 538, 542 (1998) ("A party may not raise an 

issue before the trial court on one ground, and then present 

that issue to an appellate court on a different ground"). Even 

if we considered her claim, "a judge may take judicial notice of 

the court's records in a related action." Jarosz v. Palmer, 436 

Mass. 526, 530 (2002). Apart from judicial notice, the 

documentary and testimonial evidence before the judge showed 

that the husband had custody of the four children. The 

separation agreement, exhibit 1 at trial, referenced the "four 

children," and during the trial the wife testified that the 

husband "had full custody of the children." Given this 

evidence, the judge did not err by considering the husband's

custody of the four children in connection with the divorce 

proceedings.

3. Motion to exclude evidence of armed assault. Prior to 

trial, the wife moved to exclude all evidence related to the 
7

hatchet attack and argued that it was both irrelevant to her 

contract claim and unduly prejudicial by casting her character 

in a negative light. The judge denied the motion. On appeal, 

the wife contends that the trial judge abused her discretion 

because the evidence was not relevant to the husband's

obligation to pay according to the separation agreement. 

"Whether evidence is relevant is a question addressed to the 

substantial discretion of the trial judge, whose decision we 

will not overturn except for palpable error." Kobico, Inc. v. 

Pipe, 44 Mass. App. Ct. 103, 109 (1997). It is also within the 

judge's discretion to decide whether the probative value of 

evidence is "substantially outweighed" by the danger of "unfair 

prejudice." Mass. G. Evid. § 403 (2023). The evidence here 

showed that the wife attacked the husband and one of the 

children with a hatchet and accused the husband of ruining her 

"reunification plans" that were "in the works" for the children. 

This evidence spoke to the core of the defense that the attack 

was an attempt to undo the separation agreement and constituted 

a breach of the covenant of good faith and fair dealing. We 

discern no palpable error in the judge's determination. Also, 

because the evidence addressed a "central issue[]" in the case, 

the probative value "handily outweighed" any potential that the 

judge might view the wife's character in a negative light. Gath

v. M/A-Com, Inc., 440 Mass. 482, 491 (2003). See Commonwealth
8

v. Beaulieu, 3 Mass. App. Ct. 786, 787 (1975) ("The trial judge, 

sitting without a jury, is presumed, absent contrary indication, 

to have correctly instructed himself as to the manner in which 

evidence was to be considered in his role as factfinder").

4. Evidence of the wife's guilty pleas. Exhibit 2 at 

trial in the Superior Court included docket entries and 

indictments from the wife's criminal case where she pleaded

guilty to crimes in connection with the hatchet attack on the 

husband and their child. The trial judge found that "[the wife]

tried to kill [the husband] and that she did so in an attempt to 

further her plans to regain custody of the children." The wife

now contends that the judge erred because evidence of the guilty 

pleas is not sufficient to support the judge's finding. We 

disagree. "[A] defendant's guilty plea is not without 

consequence in subsequent civil litigation. The defendant's 

guilty plea and any other admissions made during the plea-taking

colloquy with the judge are admissible as evidence in the civil 

litigation." Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 

750 (1985). Thus, the trial judge properly considered the 

wife's guilty pleas to crimes against the husband and their 

child.

For the first time on appeal, the wife next contends that 

the judge deprived her of the opportunity "to explain what 

occurred during the August 11 incident" that resulted in the 
9

indictments and subsequent guilty pleas. "An issue not raised 

or argued below may not be argued for the first time on appeal." 

Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol 

County, N.A., 405 Mass. 420, 421 n.2 (1989). This rule is 

particularly appropriate here because the wife asked the trial 

judge to exclude evidence underlying the guilty pleas. In two 

pretrial motions, the wife asked the judge to exclude testimony 

related to the August 11 hatchet attack and any bad act 

evidence. At the final pretrial hearing, the judge said, 

"[I]t's a bad idea to get into exactly what happened on August 

11th and I don't, and I don't need it because the only, I think 

the only pertinent fact is the fact of the convictions, . . . 

which I don't think would be disputed anyway." The judge then

asked the wife's counsel "how deeply we should delve into what 

happened on August 11th." Counsel responded that the 

convictions were "something that we wouldn't contest," and 

added, "I do think that permitting testimony about what someone 

said during the course of the incident, what they perceived to 

have meant by the other party, I think, does jeopardize the 

coherence of the trial and it threatens, I think, very, very 

seriously to take us off the rails." At trial, the wife's

counsel did not attempt to offer any evidence relative to the 

hatchet attack and successfully objected when the husband's
10

counsel tried to broach the subject. Based on this record, the 

wife's claim is waived.

5. Implied covenant of good faith and fair dealing. The 

wife contends that the judge erroneously applied the implied 

covenant of good faith and fair dealing to excuse the husband 

from his obligation to make the monthly property division 

payments required by the separation agreement and judgment. The 

implied covenant, a familiar concept in "commercial situations,"

is also "applicable in the context of a marital separation 

agreement." Larson v. Larson, 37 Mass. App. Ct. 106, 109-110 

(1994). See Krapf v. Krapf, 439 Mass. 97, 106 (2003). That 

covenant demands that "neither party shall do anything which 

will have the effect of destroying or injuring the right of the 

other party to receive the fruits of the contract." Druker v. 

Roland Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976), 

quoting Uproar Co. v. National Broadcasting Co., 81 F.2d 373, 

377 (1st Cir.), cert. denied, 298 U.S. 670 (1936). Here, the

judge concluded that, by trying to kill the husband with a 

hatchet, the wife committed a breach of the covenant of good 

faith and fair dealing implied in the separation agreement. The 

judge reasoned that this breach by the wife "excused" the 

husband's obligation to continue making the monthly payments for 

the division of the value of the dental practice. (No other 

provisions of the separation agreement are at issue.)
11

The wife argues that the judge's analysis is flawed because 

she did not properly consider that (1) an equitable division of 

property under G. L. c. 208, § 34, is not modifiable and 

therefore forecloses relitigation; (2) the separation agreement 

was not conditioned on postagreement conduct; (3) the wife did 

not commit a breach of the implied covenant of good faith and 

fair dealing; and (4) the husband failed to prove "demonstrable 

harm" caused by the wife.

We disagree with the proposition that equitable division of 

property under G. L. c. 208, § 34, forecloses all further 

litigation on the subject. Under § 34, the rights of parties to 

marital property are generally fixed by the terms of the divorce 

judgment and, unlike alimony, "not subject to modification" 

(citation omitted). Pfannenstiehl v. Pfannenstiehl, 475 Mass. 

105, 114 n.19 (2016). Courts have, however, sometimes revisited 

property division where, as here, a party claims a violation of 

the implied covenant of good faith and fair dealing. See, e.g.,

Krapf, 439 Mass. at 100-102, 106-107, 110 (affirming declaratory 

judgment requiring husband to pay wife amount equivalent to what 

she would have received from husband's military pension under 

separation agreement but for husband's breach of implied 

covenant by unilaterally electing to receive disability pay in 

lieu of pension); Nile v. Nile, 432 Mass. 390, 398 (2000)

(affirming judgment awarding two-thirds of deceased husband's 
12

trust to children of his first marriage where separation

agreement required husband to bequeath and devise two-thirds of

probate estate to children but he later transferred bulk of 

estate into trust in violation of implied covenant). We see 

nothing in § 34 that prohibits a court from entertaining the 

contract defense raised here -- particularly where the parties 

understood that their separation agreement would survive the 

divorce judgment as an independent contract. On the unique 

facts of this case, and considering the egregious nature of the 

wife's conduct, the judge could conclude that this case 

constitutes one of those rare situations that warrants 

revisiting the issue of property division.

We also reject the wife's argument that the implied 

covenant of good faith and fair dealing does not apply because 

the separation agreement was not conditioned on postagreement 

conduct. The wife contends that when the Probate and Family 

Court judge approved the agreement, the approval only 

contemplated statutory considerations for division of property 

including "the conduct of the parties during the marriage,"

G. L. c. 208, § 34, but not conduct after the marriage. The 

implied covenant of good faith and fair dealing has no such 

temporal limitation. Indeed, such a limitation would lead to 

absurd results where a judge could consider a wife's predivorce 

solicitation to murder her husband as a factor under § 34, as in 
13

Wolcott v. Wolcott, 78 Mass. App. Ct. 539, 543-544 (2011), but 

could not consider the same postdivorce conduct as a defense to 

performance of the terms set forth in a separation agreement.

The parties here understood that the separation agreement 

would survive the divorce judgment as an independent contract. 

Such a contract carries significant obligations. "Parties to a 

separation agreement stand as fiduciaries to each other, and 

will be held to the highest standards of good faith and fair 

dealing in the performance of their contractual obligations." 

Krapf, 439 Mass. at 103. See Robert & Ardis James Found. v. 

Meyers, 474 Mass. 181, 188 (2016) ("every contract in 

Massachusetts is subject to an implied covenant of good faith 

and fair dealing"); Clark v. State St. Trust Co., 270 Mass. 140, 

153 (1930) ("Every contract implies good faith and fair dealing 

between the parties to it"). Because separation agreements are 

construed "according to established contract principles," Krapf, 

439 Mass. at 103, the implied covenant of good faith and fair 

dealing applies to the parties' postagreement conduct.

Whether the wife committed a breach of the implied covenant 

of good faith and fair dealing was a question for the 

factfinder, Chokel v. Genzyme Corp., 449 Mass. 272, 278 n.6 

(2007), and we do not disturb the finding unless clearly 

erroneous, Imbrie v. Imbrie, 102 Mass. App. Ct. 557, 569 (2023). 

The evidence here showed, inter alia, the following: the 
14

parties divorced; the husband maintained sole legal and physical 

custody of their four children; the parties entered into a 

separation agreement, which included a structured division of 

property through the husband's monthly payments to the wife

spread over five years; the separation agreement required the 

husband to maintain a life insurance policy to secure these 

payments in the event of his death; the separation agreement was 

intended to provide an "orderly process" for the distribution of 

marital property and to end the financial "stress" on the 

parties; and, during the period of performance under the 

separation agreement, the wife attacked the husband and the 

parties' nine year old son with a hatchet and accused the 

husband of ruining her "reunification plans" that were "in the 

works" for the children. As this evidence showed, the 

separation agreement provided the husband with a structured and 

orderly process to spread his payments over five years while he 

continued to earn an income from his dental practice and care 

for his children, who remained in his sole legal and physical 

custody. At trial, the wife acknowledged that she was "not 

really comfortable with" the separation agreement. Based on the 

"totality of the circumstances," T.W. Nickerson, Inc., 456 Mass. 

at 570, a fact finder could conclude from this evidence that the 

wife tried to thwart the consequences of the separation 

agreement by killing the husband, accelerating the property 
15

division through the life insurance policy, and obtaining 

custody of the children. A fact finder could also conclude that 

the wife tried to seriously injure the husband and impair his 

ability to fund the carefully structured monthly payments with 

income derived from the ongoing dental practice. In the 

judgment of the fact finder, such precipitous and violent 

conduct could be viewed as a breach of the implied covenant of 

good faith and fair dealing because the wife took some action 

that will "have the effect of destroying or injuring the right 

of the other party to receive the fruits of the contract." 

Druker, 370 Mass. at 385, quoting Uproar Co., 81 F.2d at 377.

As a final argument, the wife contends that the husband

failed to prove all the elements of a valid defense. She argues 

that the husband also had to prove that she "actually destroyed 

or injured" a right or caused "demonstrable harm" such as 

economic loss. Since he survived the attack, so the argument 

goes, the husband suffered no real harm and should pay up. We 

disagree. "[T]he purpose of the covenant is to guarantee that 

the parties remain faithful to the intended and agreed 

expectations of the parties in their performance." Uno 

Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 

385 (2004). "A breach [of the covenant] occurs when one party 

violates the reasonable expectations of the other." Chokel, 449 

Mass. at 276. A material breach by one party "excuses" the 
16

other party from further performance and entitles the other 

party to "recover contract damages." Ward v. American Mut. 

Liab. Ins. Co., 15 Mass. App. Ct. 98, 100-101 (1983). Here, in 

raising affirmative defenses, including the argument that the 

wife committed a breach of the covenant of good faith and fair 

dealing, the husband sought only to be excused from performance; 

he did not seek damages, and he did not have to prove damages 

when raising the implied covenant of good faith and fair dealing 

as a defense.

The focus of this defense is not on whether tangible harm 

has been done but on whether a party took some action that "will 

have the effect of destroying or injuring" the rights of the 

other party to the contract. Druker, 370 Mass. at 385, quoting 

Uproar Co., 81 F.2d at 377. Within months of striking the 

bargains in the separation agreement, the wife tried to kill the 

husband with a hatchet. The wife's violent armed attack, with 

an admitted intent to murder the husband, could be viewed as a 

desperate attempt to undo the separation agreement that was 

designed by the parties to be the final step at resolving 

outstanding issues in their divorce. The wife's extreme 

conduct, manifestly aimed at destroying or injuring the 

husband's rights that had been fixed by the separation 

agreement, may be viewed as precisely the type of behavior 

prohibited by the covenant of good faith and fair dealing 
17

because the wife tried to "recapture opportunities forgone" 

(citation omitted). Anthony's Pier Four, Inc. v. HBC Assocs., 

411 Mass. 451, 473 (1991). Keeping in mind that "spouses who 

enter into agreements with each other are held to standards 

higher than those we tolerate in the arm's-length transactions 

of the marketplace," Krapf, 439 Mass. at 103, the trial judge 

could conclude that a spouse who tries to kill another spouse in 

order to evade the consequences of a separation agreement does 

not live up to this standard. We discern no error and limit our 

holding to the conclusion that the wife's violation of the 

implied covenant of good faith and fair dealing precludes her 

recovery on her breach of contract claim. See Hawthorne's, Inc. 

v. Warrenton Realty, Inc., 414 Mass. 200, 211 (1993). 

The wife contends that applying the covenant of good faith 

and fair dealing here will create a "flood of litigation 

concerning allegations of post-divorce misconduct aimed at 

invalidating property settlements." She argues that misconduct 

ranging from a party "slapp[ing] the face of the other" to being 

"habitually late in returning children" would jeopardize 

property settlements. We disagree for several reasons. First, 

we are unaware of any flood of litigation since the Supreme 

Judicial Court expressly began applying the covenant of good 

faith and fair dealing to separation agreements almost a quarter 

century ago. See, e.g., Nile, 432 Mass. at 398. Second, the 
18

unique and admitted homicidal conduct in the present case 

allowed, but did not compel, the fact finder to conclude that 

such extreme conduct was sufficiently connected to specific 

terms of the separation agreement so as to excuse performance. 

Third, we need not "speculate" on the potential future

applications of the covenant of good faith and fair dealing

because, "on the facts before us, a finding is warranted that a 

breach of the contract occurred" justifying the husband's

nonperformance. Fortune v. National Cash Register Co., 373 

Mass. 96, 104 (1977).

Conclusion. We have intentionally confined this decision 

to the narrow review of the judgment rendered by the Superior 

Court trial judge. We do not reach potential issues that have 

not been raised with respect to past or possible future 

proceedings in the Probate and Family Court. After reviewing 

the record, we discern no "clearly erroneous" factual finding of 

the trial judge. T.W. Nickerson, Inc., 456 Mass. at 569. We 

have also scrutinized, de novo, the trial judge's application of 

the law to the facts and perceive no error. Id.

Judgment affirmed.