Hartford v. Hartford
| Decision Date | 12 February 2004 |
| Docket Number | No. 01-P-1711.,01-P-1711. |
| Citation | 803 NE 2d 334,60 Mass. App. Ct. 446 |
| Parties | CHARLES E. HARTFORD v. NANCY M. HARTFORD. |
| Court | Appeals Court of Massachusetts |
Present: GELINAS, DUFFLY, & COHEN, JJ.
Dale E. Grant for the plaintiff.
Elaine F. Gordon for the defendant.
Charles E. Hartford appeals from the entry of summary judgment dismissing his complaint against his former wife, Nancy M. Hartford. In his complaint, Charles alleges that Nancy defamed him by making false statements to his parole officer and others. We do not agree that the falsity of Nancy's statements was established by findings of a Probate Court in connection with the parties' divorce. However, because we agree that the statements, even if false, were absolutely privileged, we affirm.
Background facts and proceedings. The parties married in December, 1987, while Charles was on parole after serving seventeen years in prison for the murder in the first degree of his first wife and another person.1 Nancy was Charles's third wife. On June 13, 1996, Charles's parole officer, Dana White, made a routine, unannounced visit to the parties' home. Charles was at work, but Nancy was home. Nancy told White that she was afraid of Charles and experiencing marital problems because Charles was following her to work and accusing her of being unfaithful. White advised Nancy to call the police and to obtain a G. L. c. 209A protective order. She did not do so that day.
The next day, June 14, 1996, White contacted Charles at work and informed him of his wife's statements. Charles denied the existence of any marital problems and White ended the conversation by telling him not to abuse Nancy and to report to the parole office the next day. Soon after this conversation, Charles left work for home to confront Nancy about her conversation with his parole officer. The nature of the confrontation, which took place over an approximately thirty to forty-five minute period, was the subject of testimony in court proceedings between the parties relating to the following actions: a complaint by Nancy filed in the Uxbridge District Court, in which she sought and obtained an abuse prevention order against Charles pursuant to G. L. c. 209A; and cross claims for divorce, filed in Worcester Probate and Family Court, in which the parties were each granted a divorce on their stipulation that the marriage had suffered an irretrievable breakdown.
Charles's defamation claim focuses on statements made by Nancy to White, to the police who were called to the house following the incident, and during the c. 209A proceedings. We draw our summary of Nancy's allegedly false statements from her affidavit in support of the c. 209A order, White's written report of all contacts concerning Charles, Nancy's complaint filed with the Millville police department, and a police officer's narrative report. Nancy said that Charles had arrived home at about 3:30 P.M. very angry and verbally attacked her for having made the statements to White the day before. He ordered her into the bedroom and, using profanities, demanded that she never speak to his parole officer again. He yelled at her and said that she had not "seen him mad yet." When she attempted to leave the bedroom to check on the four grandchildren who were visiting, he prevented her from leaving by blocking the door and forcing her back onto the bed. He let her go only after she reminded him that the children's parents would soon be arriving to pick them up. At about 5:50 P.M., White telephoned the house and Nancy answered, relating to him the foregoing. According to a police officer's narrative report, Millville police were called to the parties' residence at about 6:00 P.M., where they were met by Nancy, who repeated to the responding officers essentially what she had told White. She thereafter also filed a complaint with the police to the same effect. The police took Charles into custody.
At a revocation of parole hearing, the parole board determined that Charles had violated the conditions of his parole, at least in part on the basis of the June 14 events as related by Nancy to the parole officer.2 Charles was recommitted to serve the remainder of his life sentence.
On June 28, 1996, Nancy filed a complaint in Uxbridge District Court seeking protection from abuse, pursuant to G. L. c. 209A, and an order entered prohibiting Charles from abusing Nancy. After a hearing on July 5, 1996, the order was extended for one year.
In December, 1996, Nancy filed a complaint for divorce and Charles filed a counterclaim. Although the parties initially sought a divorce on grounds of cruel and abusive treatment, the Probate Court findings reflect that "the parties . . . stipulated to G. L. c. 208, § 1B irretrievable breakdown grounds for divorce." Thus, as further reflected in the findings and conclusions of the Probate Court, the only issue to be resolved by the trial judge was with respect to the parties' cross claims for equitable distribution of marital property pursuant to G. L. c. 208, § 34.3 The detailed findings (numbering 132 in all) are set out under headings roughly correlating to the mandatory factors to be considered in making a property distribution or alimony award under § 34, except that there was no separate category for "conduct."4 Under the heading, "The Marriage and Former Marriages of the Parties," nineteen of the sixty-six numbered paragraphs relate to the June 14 incident. The findings reflect that the Probate Court judge did not credit Nancy's version of what had transpired on June 14, 1996, but accepted Charles's version: that twenty minutes after the call from White, he left work for home and, once there, had a conversation with his wife in their bedroom in which Charles asked his wife if she wanted a divorce and told her that if she did, he wanted half of the house; Nancy asked him to vacate the house, but he refused and then left to get something to eat before going outside to mow the lawn; he had neither held her captive nor verbally assaulted her.
On the strength of the Probate Court findings, Charles then filed a complaint in Superior Court, asserting that Nancy's statements regarding the June 14 incident, made to his parole officer, the Millville police department, and the Uxbridge District Court, were false and malicious. In his motion for summary judgment he argued that the Probate Court findings regarding the falsity of Nancy's statements as to the events of June 14 precluded relitigation of that issue. Nancy filed a cross motion for summary judgment, arguing that she was not barred from litigating the issue, and that even if barred, the statements were absolutely privileged.
The Superior Court judge gave preclusive effect to the Probate Court's findings, concluding that the "the issue of whether Nancy made the statements concerning spousal abuse and whether the statements were made falsely was central to the previous Probate Court adjudication and are the same issues presented in the current defamation action." Notwithstanding this determination, the Superior Court judge also concluded that Nancy had an absolute privilege to make the statements, entitling her to summary judgment.
On appeal, Charles (correctly, in our view) does not contest the Superior Court judge's determination that any defamatory statements made by Nancy to the police and to the District Court judge in connection with her request for a c. 209A restraining are absolutely privileged. We focus on his related claims that Nancy's statements to the parole officer were false and that they were not protected by absolute privilege.
Discussion. 1. The defamation claim. With the well-established standard of review of a grant of summary judgment in mind, see Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), we briefly address the judge's determination that the issue of the falsity of Nancy's statements had been determined in the divorce action.
(a) Issue preclusion. "The doctrine of issue preclusion provides that when an issue has been 'actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim.'" Jarosz v. Palmer, 436 Mass. 526, 530-531 (2002), quoting from Restatement (Second) of Judgments § 27 (1982).
A judgment of divorce settles only those "matters which were necessarily involved and all issues which were actually tried and determined." Davidson v. Davidson, 19 Mass. App. Ct. 364, 367 (1985), quoting from Whitney v. Whitney, 325 Mass. 28, 31 (1949). Here, the parties stipulated that the marriage had suffered an irretrievable breakdown and the judgment of divorce entered on that basis. An issue is not "actually litigated if it is the subject of a stipulation between the parties." Restatement (Second) of Judgments § 27, comment e (1982).
To the extent that the Probate Court judge considered, and rejected, Nancy's claims about the June 14 incident as a factor in the division of marital property pursuant to G. L. c. 208, § 34, Nancy had no incentive to appeal the equitable distribution portion of the judgment because that property division favored her. "If review is unavailable because the party who lost on the issue obtained a judgment in his favor, the general rule of issue preclusion is inapplicable by its own terms." Restatement (Second) of Judgments § 28 comment a (1982). See Jarosz v. Palmer, supra at 536.
The doctrine of issue preclusion is inapplicable to the Probate Court findings regarding the June 14 incident. Had it applied, Nancy would still be entitled to summary judgment because even if her statements are established to have been falsely made, Nancy was absolutely privileged to make them. We turn to a discussion of that issue.5
(b) Absolute privilege. "A witness is absolutely privileged to publish defamatory matter...
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