Jerry Thomas v. Jane Cunningham.

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

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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

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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."

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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.

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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.

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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

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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

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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

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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

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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.

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