Of the Sixth Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-1118

JOHN DANIEL MOONEY,

Plaintiff, Appellant,

v.

DEBORAH A. MOONEY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Torruella, Circuit Judge,

Siler, Senior Circuit Judge, *

and Howard, Circuit Judge.

Brian J. Hughes, with whom Donald J. Jackson, Jr. and The

Law Offices of Donald H. Jackson, Jr., P.C. were on brief, for

appellant.

Elaine M. Epstein, with whom Maureen McBrien, Edward Foye

and Todd & Weld LLP were on brief, for appellee.

December 22, 2006
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HOWARD, Circuit Judge. Under Massachusetts domestic relations

law, a married couple may obtain the benefits of a "no fault"

divorce by averring that "an irretrievable breakdown of the

marriage exists" and persuading a probate court judge to approve a

notarized separation agreement setting forth the terms on which the

marriage is to be dissolved. Mass. Gen. Laws ch. 208, § 1A. In

such circumstances, the separation agreement "shall either be

incorporated and merged into [the divorce judgment] or by agreement

of the parties, it shall be incorporated and not merged, but shall

survive and remain as an independent contract." Id. If the

agreement is incorporated but not merged, it remains binding on the

parties and may serve as the basis for a legal action to enforce

its terms -- e.g., a claim for unpaid alimony -- which may be

brought separate and apart from any contempt motion filed in the

divorce case. See, e.g., Mansur v. Clark, 521 N.E.2d 759, 761

(Mass. App. Ct. 1988) (collecting cases). 

In this case, plaintiff John Daniel Mooney, a Massachusetts

resident, brought a diversity action seeking rescission or

cancellation of the separation agreement dated April 1, 1999, and

in effect between himself and his former wife, Deborah A. Mooney,

now a Maine resident. The agreement, which requires John to pay

Deborah $650 per week in alimony, was incorporated, but not merged,

into a no fault judgment of "divorce nisi" entered in favor of the

couple in the Massachusetts Probate Court on June 1, 1999, which by
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operation of law became a judgment of "divorce absolute" ninety

days later. See Mass. Gen. L. Ann. c. 208, § 21. The divorce

judgment also requires John to pay Deborah $650 per week in

alimony. John says that the agreement was procured by duress,

coercion, and undue influence, and that he did not enter into it of

sound mind. 

Shortly after this action was filed, Deborah filed a contempt

claim within the divorce action, to which John filed a

counterclaim. Originally, the counterclaim made the same

allegations challenging the validity of the separation agreement

that are set forth in the federal complaint. Subsequently,

however, John filed an amended counterclaim which omits the

allegations challenging the validity of the separation agreement

and asks only that, because of changed circumstances, the no fault

divorce judgment be modified so as to discharge John's alimony

obligations. Citing the pendency of the probate court action,

Deborah moved the district court to abstain from exercising

jurisdiction over this case. The court granted the motion, citing

a 1986 decision in which we endorsed abstaining from diversity

claims "that are closely related to, though not within," what we

described as a "jurisdictional exception" to the diversity statute,

28 U.S.C. § 1332, encompassing "domestic relations issues."

Gonzalez Canevero v. Rexach, 793 F.2d 417, 418 (1st Cir. 1986)

(citations and internal quotation marks omitted). John appeals the
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abstention order, arguing that Rexach has been abrogated by recent

Supreme Court cases emphasizing the narrowness of the domestic

relations exception.

John is on solid ground in questioning the continuing vitality

of Rexach. In Ankenbrandt v. Richards, the Supreme Court clarified

that the domestic relations exception "encompasses only cases

involving the issuance of a divorce, alimony, or child custody

decree." 504 U.S. 689, 704 (1992). And more recently, in Marshall

v. Marshall, the Court emphasized, once again, that abstention is

not appropriate when a claim, though related to a domestic

relations issue, does not itself challenge a divorce, alimony, or

child custody decree. See 126 S. Ct. 1735, 1744-46 (2006). In

light of Ankenbrandt and Marshall, abstention is not warranted

simply because a claim that is "not within" the domestic relation

exception is, nonetheless, "closely related to" a domestic

relations matter. (We say "simply" because, as Ankenbrandt itself

recognized, there may well be other grounds for abstaining -- e.g.,

those articulated in Burford v. Sun Oil Co., 319 U.S. 315 (1943) --

in such circumstances. See 504 U.S. 704-06 & n.8.)

Even so, the district court properly dismissed this lawsuit.

See In re Miles, 436 F.3d 291, 293-94 (1st Cir. 2006) (appellate

court can affirm on any ground within its power supported by the

record). In a case overlooked by the parties, the Massachusetts

Supreme Judicial Court held that, notwithstanding the availability
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of a separate cause of action to enforce a separation agreement

incorporated but not merged into a divorce decree, an independent

action seeking rescission of such an agreement does not lie where

the party seeking rescission also is challenging the validity of

the divorce decree. See Saltmarsh v. Saltmarsh, 480 N.E.2d 618,

620-22 (Mass. 1985). In the SJC's view, a separate rescission

action in such circumstances is "unnecessary and inappropriate"

because there is "an adequate remedy within the divorce

proceeding." Id. at 620-21. A successful challenge to the divorce

decree would have the effect of nullifying the separation

agreement, the validity and approval of which are necessary

predicates to the couple receiving the benefits of a no fault

divorce. See id. at 621; Mass. Gen. Laws ch. 208, § 1A. Thus,

insofar as John's counterclaim might be read to challenge the

validity of the divorce decree, he is barred by Saltmarsh from

pressing his federal claim.

There is an obvious rejoinder to this line of analysis. John

tells us that he is not challenging the validity of the divorce

decree, and that he has amended his counterclaim in the divorce

proceeding to ask only for its "modification." Compare Saltmarsh,

480 N.E.2d at 622 (making clear that the party seeking rescission

alleged that she would not have agreed to a no-fault divorce had

she known the facts grounding her request for rescission). And

Saltmarsh does not necessarily stand for the proposition that an
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independent action for rescission of a separation agreement is

barred because the same relief could be obtained in a successful

attack upon the divorce decree. 

But John cannot have it both ways. John was entitled to the

benefits of a no fault divorce only because he persuaded the

probate court to find that he had reached a valid and appropriate

separation agreement with Deborah. See Mass. Gen. Laws ch. 208, §

1A. If he wishes to continue to benefit from that judgment while

seeking a favorable modification of its terms due to changed

circumstances, equity requires that he be taken to be continuing to

represent to the probate court that the judgment's essential

preconditions were met. Otherwise, the judgment ought to be

vacated, not modified. Cf. Scholz v. Scholz, 324 N.E.2d 617, 618

(Mass. 1975) (noting that a divorce absolute may be set aside in

the event of fraud or mistake). And if John is affirmatively

(albeit implicitly) representing in the divorce proceeding that the

separation agreement remains valid, he should not be permitted to

obtain equitable relief on the basis of a contrary position taken

in this action. See New Hampshire v. Maine, 532 U.S. 742, 749-51

(2001); 18 Charles Alan Wright et al., Federal Practice and

Procedure § 4477, 608-14 (2d ed. West 2002). 

In the end, then, John cannot obtain rescission or

cancellation of the separation agreement in this action. This

disposition obviates the need for consideration whether, as Deborah
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argues in support of alternative grounds for affirmance, there

exist in this case other grounds for abstention.

Affirmed.