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13-P-694 Appeals Court

JEFFREY M. KELSO vs. BARBARA KELSO.

1

No. 13-P-694.

Middlesex. January 7, 2014. - September 3, 2014.

Present: Katzmann, Fecteau, & Milkey, JJ.

Res Judicata. Divorce and Separation, Findings. Practice, 

Civil, Motion to dismiss, Findings by judge. Abuse of 

Process. Libel and Slander. Emotional Distress.

Civil action commenced in the Superior Court Department on 

June 18, 2012. 

A motion to dismiss was heard by Dennis J. Curran, J. 

Dana Alan Curhan for the plaintiff.

David H. Locke for the defendant.

KATZMANN, J. This appeal poses the question of the 

preclusive effect of a divorce judgment on a subsequent action 

in tort pertaining to related conduct. Following a trial, a 

Probate and Family Court judge issued a judgment of divorce with 

 

1 The defendant is also known as Barbara Cappadona.
2

respect to the marriage of Barbara Kelso (Barbara) and Jeffrey 

M. Kelso (Jeffrey) on the basis of the irretrievable breakdown 

of the marriage.

2 About a year later, Jeffrey filed an action in 

the Superior Court against his former spouse seeking damages on 

the basis of four tort claims: abuse of process, defamation, 

intentional infliction of emotional distress, and negligent 

infliction of emotional distress. A Superior Court judge 

granted Barbara's motion to dismiss, and Jeffrey appeals. We 

reverse.

Background.

3 On June 19, 2009, Barbara filed a complaint 

for divorce in the Probate and Family Court, alleging cruel and 

abusive treatment. On the same day, a Probate and Family Court 

judge granted Barbara's ex parte motion for a temporary order

requiring Jeffrey to vacate the marital home. Jeffrey was 

required to vacate the house that day. The order also required 

that Jeffrey have no contact with Justin and Angelina, the 

children he shares with Barbara. On June 20, Father's Day, 

Justin was staying at the home of Barbara's sister, Gerri 

 

2 As the parties have the same last name, we refer to them 

by their first names.

3 We draw our summary of the background facts and 

proceedings from the plaintiff's complaint, as well as other 

documents in the record that were attached to responsive 

pleadings, assuming, as we must, that the facts alleged in the 

complaint are true. Iannacchino v. Ford Motor Co., 451 Mass. 

623, 635-636 (2008).
3

Abrahamian, and her husband, Fred Abrahamian. Jeffrey picked up 

Justin, took him for a haircut and to a park, and returned him 

to the Abrahamians.4 Later that day he was arrested for 

violating the temporary order.

On June 26, 2009, Jeffrey filed a counterclaim for divorce 

and a motion to vacate the temporary order. Following a 

hearing, the motion judge entered an order allowing Jeffrey to 

resume living in the marital home but requiring him to remain at 

least ten feet away from Barbara. Jeffrey resumed residence in 

the house. Three days later, in the early morning hours of June 

29, Barbara called the police, alleging that Jeffrey violated 

the ten-foot order. Also on June 29, Barbara sought a G. L. 

c. 209A abuse prevention order (209A order) in the Framingham 

District Court. In that proceeding, she filed an affidavit 

stating that Jeffrey had forcibly entered her bedroom the 

previous night and assaulted her. The District Court issued a 

209A order that same day. In addition, based on the alleged 

entry and assault, the Wayland police filed a criminal complaint 

charging Jeffrey with the violation of an abuse prevention order 

and assault and battery.

 

4 Gerri Abrahamian told the police that on the evening of 

June 19, Barbara called her and informed her of Jeffrey's plan 

to pick up Justin the following day for his haircut. Barbara 

did not inform her sister at that time of the no-contact order 

in place.
4

On July 28, 2009, the parties agreed to vacate the June 29 

abuse prevention order issued by the Framingham District Court 

and to dismiss the related pending criminal matters. On August 

28, 2009, a Probate and Family Court judge entered an order

memorializing this agreement and vacating the 209A order.

During the divorce trial, which was held on January 26 and 

27, 2011, Barbara made several serious accusations regarding 

Jeffrey's behavior towards her. First, she testified that 

Jeffrey had struck her during the marriage. Second, she 

testified that Jeffrey pushed her in the stomach when she was 

pregnant with Angelina. Third, she testified that Jeffrey 

formed his fingers into the shape of a gun and pointed them at 

her, suggesting that he was threatening to shoot her. Fourth, 

she testified that Jeffrey had threatened her that, if she 

called the police on him, it would be the last thing she ever 

did. Fifth, she testified that Jeffrey had threatened her that 

he was going to bash her head in. Jeffrey denied these 

allegations, and none of the witnesses at trial had observed 

Jeffrey behaving in an abusive manner towards Barbara. The 

Probate and Family Court judge who presided over the trial found 

that "Wife's testimony regarding alleged abusive conduct on the 

part of Husband was inconsistent to the point that it lacks 

credibility."
5

At trial, there was substantial testimony regarding the 

alleged incident of June 29, 2009. Barbara testified that 

Jeffrey forcibly entered her bedroom and assaulted her upon 

gaining entry.5 She telephoned the police after Jeffrey, 

purportedly, left the room. Jeffrey testified that he did not 

enter Barbara's bedroom that night. There was testimony as well 

about the surveillance cameras in the house, including one 

installed in the hallway outside of Barbara's bedroom that 

recorded images from that hallway. Bruce Koenig, an expert in 

the field of video forensics, testified that he did not discover 

any problems with the authentication of the video recording

(video) and that the format of the video made it all but 

impossible to alter. Koenig testified that the video was not 

consistent with Barbara's testimony that Jeffrey broke into her 

bedroom. The Probate and Family Court judge credited Jeffrey's 

version of the events that evening, as well as the authenticity 

of the video.

On August 10, 2011, the Probate and Family Court judge 

granted the petition for divorce on the grounds of irretrievable 

breakdown of the marriage. In support of the judgment, the 

judge issued an extensive written decision, including 406 

findings of fact. As part of the divorce judgment, Barbara was 

 

5 Barbara always kept her bedroom locked.
6

ordered to reimburse Jeffrey for the cost of hiring Koenig, the 

forensic video expert. In addition, she was ordered to pay 

Jeffrey $10,000 from her share of the division of assets because 

of her uncooperative behavior at trial and because she forced

Jeffrey to "defend himself against false allegations of abuse."

On June 18, 2012, Jeffrey filed the underlying Superior 

Court tort action against Barbara, alleging (1) abuse of 

process, (2) defamation, (3) intentional infliction of emotional 

distress, and (4) negligent infliction of emotional distress. 

These claims were based on the actions during the divorce 

process described above. After a hearing, a Superior Court 

judge granted Barbara's motion to dismiss pursuant to 

Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), concluding that 

all four counts were barred by collateral estoppel6 because of 

the prior divorce action. Jeffrey now appeals.7

 

6 Below, we refer to collateral estoppel by its modern name, 

issue preclusion. See Heacock v. Heacock, 402 Mass. 21, 23 n.2 

(1988) (Heacock).

7 Judgment entered in accordance with the judge's order on 

February 1, 2013, and Jeffrey filed a timely notice of appeal 

therefrom on February 20, 2013. The record was assembled on 

April 17, 2013, and the appeal now before us was entered in this 

court on April 25, 2013. However, on May 15, 2013, the judge, 

apparently sua sponte, sought to vacate the prior judgment as 

"entered inadvertently." On that same day, the judge's

memorandum of decision and order on the motion to dismiss was 

entered on the docket, as well as an amended judgment, again 

dismissing Jeffrey's complaint. The judge, however, lacked the 

authority to amend the judgment after the appeal had been 
7

Discussion.

8 "'Res judicata' is the generic term for 

various doctrines by which a judgment in one action has a 

binding effect in another. It comprises 'claim preclusion' and 

'issue preclusion.'"9 Heacock v. Heacock, 402 Mass. 21, 23 n.2 

(1988) (Heacock). Our analysis emerges from the framework that 

Heacock establishes with respect to claim and issue preclusion 

 

entered in this court and we obtained jurisdiction. See 

Springfield Redev. Authy. v. Garcia, 44 Mass. App. Ct. 432, 434-

435 (1998). Thus, only the judgment that was entered on 

February 1, 2013, is before this court.

Although the memorandum was entered on the docket on the 

same day as the amended judgment, the memorandum specifically 

states that it details the grounds for the decision at the time 

that the original judgment was entered (February 1, 2013). 

Thus, the memorandum is properly before us. In that memorandum, 

the judge explicitly allows the motion to dismiss solely on the 

grounds raised by Barbara -- issue and claim preclusion. 

Although in footnotes the memorandum states basic principles of 

law suggesting alternative grounds for dismissal of the claims 

-- not raised below -- we decline to address them as they were 

not accompanied by any analysis and the decision does not rest 

on them.

8 "We review the allowance of a motion to dismiss de novo." 

Galiastro v. Mortgage Electronic Registration Sys., 467 Mass. 

160, 164 (2014). "We accept as true the facts alleged in the 

plaintiff's complaint as well as any favorable inferences that 

reasonably can be drawn from them." Ibid.

9 "'Claim preclusion' is the modern term for the doctrines 

traditionally known as 'merger' and 'bar,' and prohibits the 

maintenance of an action based on the same claim that was the 

subject of an earlier action between the same parties or their 

privies. 'Issue preclusion' is the modern term for the doctrine 

traditionally known as 'collateral estoppel,' and 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." Heacock, 402 

Mass. at 23 n.2.
8

in tort actions that follow related divorce proceedings. See 

id. at 23-25. We conclude that neither claim preclusion nor 

issue preclusion bars the tort claims at issue here.

1. Claim preclusion. "The doctrine of claim preclusion 

makes a valid, final judgment conclusive on the parties and 

their privies, and bars further litigation of all matters that 

were or should have been adjudicated in the action." Id. at 23. 

Claim preclusion only applies where both actions are based on 

the same claim. Id. at 24. Because "[a] tort action is not 

based on the same underlying claim as an action for divorce," it 

is not precluded by a prior divorce action.10 Ibid. See 

Apostolicas Properties Corp. v. Richman, 28 Mass. App. Ct. 671, 

676-677 (1990).

 

10 "The purpose of a tort action is to redress a legal wrong 

in damages; that of a divorce action is to sever the marital 

relationship between the parties, and, where appropriate, to fix 

the parties' respective rights and obligations with regard to 

alimony and support, and to divide the marital estate. Although 

a judge in awarding alimony and dividing marital property must 

consider, among other things, the conduct of the parties during

the marriage, the purposes for which these awards are made do 

not include compensating a party in damages for injuries 

suffered. The purpose of an award of alimony is to provide 

economic support to a dependent spouse; that of the division of 

marital property is to recognize and equitably recompense the 

parties' respective contributions to the marital partnership. 

The plaintiff could not have recovered damages for the tort in 

the divorce action, as the Probate Court does not have 

jurisdiction to hear tort actions and award damages." Heacock

supra at 24 (citations omitted).
9

With respect to claim preclusion, the present case is on 

all fours with Heacock. That the divorce action severed the 

parties' marriage does not prevent Jeffrey from bringing this 

tort action against Barbara. See Heacock, supra at 24-25. 

Barbara argues that allowing this tort action to proceed would 

afford Jeffrey a double recovery because the Probate and Family

Court judge considered the parties' actions during the pendency 

of the divorce and allocated funds in response. In particular, 

she highlights the award of funds to Jeffrey, in the divorce 

judgment, to cover the cost of an expert witness that he called 

during the divorce proceeding and to cover certain legal fees

because of her actions. But the fact that the judge considered 

the parties' actions in awarding funds does not alter the claim 

preclusion analysis.

11 See id. at 24 ("Although a judge in 

awarding alimony and dividing marital property must consider, 

among other things, the conduct of the parties during the 

marriage, the purposes for which these awards are made do not 

include compensating a party in damages for injuries suffered"

[citation omitted]).

 

11 We note that, even if Barbara is found liable in the 

subsequent proceedings, she cannot be required to pay twice to 

compensate for the same loss. See Selmark Assocs., Inc. v. 

Ehrlich, 467 Mass. 525, 544 (2014), citing Blake v. Commissioner 

of Correction, 403 Mass. 764, 767 (1989).
10

Moreover, Heacock forecloses Barbara's policy argument that

preclusion is required to ward off the ills of piecemeal 

litigation. There, the court concluded that the general policy 

arguments for preclusion do not support the preclusion of a tort 

action by a prior related divorce action. Heacock, 402 Mass. at

24-25 ("Maintenance of the tort claim will not subject the 

defendant and the courts to the type of piecemeal litigation 

that the doctrine of claim preclusion seeks to prevent").

2. Issue preclusion. Barbara argues that, even if Heacock

makes claim preclusion unavailable in this situation, Jeffrey's 

tort claims are barred by issue preclusion. We disagree. We 

conclude that, where the judge in the prior action made findings 

that are favorable to Jeffrey and -- even if not wholly 

favorable -- those findings are not sufficiently adverse to 

Jeffrey such that they negate any element of the claims brought

in the tort action, those claims can survive a motion to dismiss 

based on issue preclusion.

Issue preclusion prevents "relitigating an issue when four 

factors are present: '(1) there was a final judgment on the 

merits in [a] prior adjudication; (2) the party against whom 

estoppel is asserted was a party (or in privity with a party) to 

the prior adjudication; (3) the issue in the prior adjudication 

is identical to the issue in the current litigation; and (4) the 

issue decided in the prior adjudication was essential to the 
11

earlier judgment.'" Okoli v. Okoli, 81 Mass. App. Ct. 381, 385 

(2012), quoting from Porio v. Department of Rev., 80 Mass. App. 

Ct. 57, 61 (2011). "To defend successfully on the ground of

issue preclusion, the defendant must establish that the issue of 

fact sought to be foreclosed actually was litigated and 

determined in a prior action between the parties or their 

privies, and that the determination was essential to the 

decision in the prior action." Heacock, supra at 25, citing 

Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983).

In Heacock, supra, issue preclusion did not apply because 

the judge who presided over the divorce action did not make any 

findings of fact. Here, by contrast, the Probate and Family

Court judge made extensive findings of facts. Insofar as these 

findings were actually litigated and essential to the divorce 

judgment, neither Barbara nor Jeffrey may litigate them again.

In certain circumstances, factual findings made in a 

divorce action may preclude a subsequent tort action if those 

particular findings defeat the tort claim. See, e.g., Green v. 

Brookline, 53 Mass. App. Ct. 120, 127 (2001). This is not such 

a case. First, Barbara does not actually argue that any

specific findings by the Probate and Family Court judge 

conclusively establish that she is not liable on any of the 

claims that Jeffrey now brings -- as she must do for the action 

to be dismissed because of issue preclusion. See Okoli v. 
12

Okoli, supra at 388-389. Second, on the disputed issues

plausibly pertaining to the four tort claims,

12 the judge's 

findings are favorable to Jeffrey. Notably, the Probate and 

Family Court judge credited Jeffrey's account of the night on 

which Barbara alleged that Jeffrey had entered her bedroom and 

assaulted her. In finding of fact no. 400, the judge stated, 

"The Court finds Wife's testimony in this regard to be 

deliberately evasive, and accordingly, not credible." Moreover, 

 

12 Abuse of process requires that "(1) 'process' was used;

(2) for an ulterior or illegitimate purpose; (3) resulting in 

damage." Datacomm Interface, Inc. v. Computerworld, Inc., 396 

Mass. 760, 775-776 (1986) (citation omitted). Jeffrey alleges 

that Barbara filed the G. L. c. 209A petitions and took related 

actions in order to gain advantage in the divorce proceedings. 

"Defamation is the publication of material by one without a 

privilege to do so which ridicules or treats the plaintiff with 

contempt." Correllas v. Viveiros, 410 Mass. 314, 319 (1991). 

Jeffrey alleges that Barbara made defamatory statements to third 

parties during the divorce process. Intentional infliction of 

emotional distress requires showing "(1) that the actor intended 

to inflict emotional distress or that he knew or should have 

known that emotional distress was the likely result of [the] 

conduct, . . . (2) that the conduct was extreme and outrageous, 

was beyond all possible bounds of decency and was utterly 

intolerable in a civilized community, . . . (3) that the actions 

of the defendant were the cause of the plaintiff's distress, 

. . . and (4) that the emotional distress sustained by the 

plaintiff was severe and of a nature that no reasonable [person] 

could be expected to endure it." Okoli v. Okoli, supra at 387 

n.8 (quotations and citation omitted). Negligent infliction of 

emotional distress requires: "(1) negligence; (2) emotional 

distress; (3) causation; (4) physical harm manifested by 

objective symptomatology; and (5) that a reasonable person would 

have suffered emotional distress under the circumstances." 

Conley v. Romeri, 60 Mass. App. Ct. 799, 801 (2004). Jeffrey 

alleges that Barbara's conduct both intentionally and 

negligently caused him emotional distress.
13

with respect to the events that immediately followed the initial 

order requiring Jeffrey to vacate the family home, the judge 

stated, in finding of fact no. 193, "The Court finds Husband's 

testimony regarding the events on June 20, 2009 to be credible 

and Wife's testimony to be not credible." Neither these nor the 

other findings in the Probate and Family Court judge's thorough 

decision conclusively resolve any of Jeffrey's four tort claims 

in Barbara's favor.13 Absent such findings, elevating the 

doctrine of issue preclusion, which precludes the relitigation 

of factual issues, to bar the claims at stake here would violate 

the underlying holding of Heacock limiting claim preclusion. 

See Heacock, 402 Mass. at 24-25. While issue preclusion might 

be appropriate in a postdivorce tort action where the divorce 

judge had determined that a spouse did not engage in the 

wrongful act of which the spouse is accused in the tort case, it 

does not apply where a judge determines that a spouse had 

engaged in wrongful conduct but the court does not have 

jurisdiction to determine the legality of the conduct or the 

 

13 By contrast, it is Jeffrey who may benefit from the

preclusive effects of the divorce judgment. In the proceedings 

that follow this decision, Jeffrey may be able to use the 

judicial determinations offensively to preclude Barbara from 

relitigating questions of fact resolved at the divorce trial. 

See Evans v. Lorillard Tobacco Co., 465 Mass. 411, 466 (2013) 

(offensive issue preclusion can be deployed when not unfair to 

the defendant). See also Aetna Cas. & Sur. Co. v. Niziolek, 395 

Mass. 737, 745 (1985) (same).
14

damages suffered by the complaining spouse as a result. Issue 

preclusion does not bar Jeffrey from bringing claims at issue 

here.

Judgment entered February 1, 

 2013, reversed.