Slansky v. Slansky

• Decision Date: 30 September 1988
• Docket Number: No. 87-136,87-136
• Citation: 150 Vt. 438,553 A.2d 152
• Parties: Hansjeorg SLANSKY v. Brigid B. SLANSKY.
• Court: Vermont Supreme Court

Page 152

553 A.2d 152

150 Vt. 438

Hansjeorg SLANSKY v. Brigid B. SLANSKY.

No. 87-136.

Supreme Court of Vermont.

Sept. 30, 1988.

Keyser, Crowley, Banse & Facey, Rutland, for plaintiff-appellant.

Theodore Corsones and Therese M. Corsones of Corsones & Hansen, Rutland, for defendant-appellee.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiff appeals the trial court's grant of defendant's motion for summary judgment and the dismissal of his complaint against her for wrongful conversion and breach of trust. We reverse.

I.

On February 11, 1986, the Rutland Superior Court granted a divorce to the parties, incorporating their property settlement agreement into the judgment order. The agreement awarded various assets to the parties, but made no mention of the health insurance policy. Because the policy was in defendant's name alone and in her possession, it went to defendant by virtue of a clause in the agreement that each party was entitled to all the remaining assets in his or her possession at the time of the divorce. One year prior to the divorce defendant removed both plaintiff and their children from the insurance policy, leaving herself as the sole person covered. It is undisputed that plaintiff was aware of the fact that he was no longer covered by the policy at the time of the divorce.

On August 28, 1986, plaintiff filed suit against defendant for wrongful conversion and breach of trust, alleging that although he had supplied the funds necessary for the purchase of a health insurance policy for himself, defendant and their children in April of 1983 while the parties were still married, defendant had actually purchased the policy in her name, designating plaintiff as only an additional insured. The result of defendant's action was that in February of 1985, when she removed plaintiff as an insured under the policy, plaintiff was unable to obtain insurance coverage for a health condition he had developed between April of 1983 and February of 1985.

Defendant moved for summary judgment on plaintiff's suit, raising the defense of res judicata. Plaintiff opposed the motion and stated in an affidavit that defendant had "refused to discuss" the health insurance issue during negotiations leading up to the final property settlement agreement. The trial court granted defendant's motion for summary judgment on the basis that plaintiff's claim was barred by the doctrine of res judicata.

II.

The principles governing motions for summary judgment have been set forth recently in Smith v. Day, 148 Vt. 595, 538 A.2d 157 (1987).

In order to succeed on a motion for summary judgment, the moving party must satisfy a two-part test: first, no genuine issue of material fact must exist between the parties, and second, there must be a valid legal theory which entitles the moving party to judgment as a matter of law. V.R.C.P. 56(c); Gore v. Green Mountain Lakes, Inc., 140 Vt. 262, 264, 438 A.2d 373, 374 (1981). The moving party has the burden of proof, and the opposing party must be given the benefit of all reasonable doubts and inferences in determining whether a genuine factual issue exists. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985). The moving party also bears this burden on appeal. Sykas v. Kearns, 135 Vt. 610, 612, 383 A.2d 621, 623 (1978). When a defendant moves for summary judgment, he satisfies his legal burden by presenting " 'at least one legally sufficient defense that would bar plaintiff's claim.' " Gore, 140 Vt. at 266, 438 A.2d at 375 (quoting 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2734, at 647 (1973)).

Id. 148 Vt. at 596-97, 538 A.2d at 158.

The material facts are not in dispute. Plaintiff admits that he knew of his lack of coverage at the time he entered into the property settlement agreement. If the doctrine of res judicata applies, then defendant has met her legal burden, and the trial court's grant of her motion for summary judgment must be upheld.

The doctrine of res judicata generally bars subsequent actions on claims which could have been raised or decided in a previous action between the same parties. See Berisha v. Hardy, 144 Vt. 136, 138, 474 A.2d 90, 91 (1984); Hill v. Grandey, 132 Vt. 460, 463, 321 A.2d 28, 30 (1974). Here, the dispute concerning the insurance policy was clearly at issue during the parties' negotiations. At the time of the divorce, plaintiff had a legally cognizable claim against defendant for her allegedly fraudulent use of plaintiff's monies. Yet, plaintiff entered into an agreement which purported to resolve all property disputes between the parties even though it contained no mention of the insurance policy. Plaintiff's failure to assert his claim prior to the entry of the divorce order, however, does not bar his attempt to litigate the issue now.

Although this Court has not previously addressed the precise issue raised in this case, other jurisdictions have examined this problem. We find the following analysis to be persuasive. ¹

It is long-settled that a prior divorce decree acts as a bar to a subsequent action for divorce, as to the same ground and every issue actually litigated. However, no rule of preclusion is applicable to require that a prior divorce decree acts as a bar to a subsequent civil action in tort....

... Nor can it be argued that a civil action in tort is the same "cause of action" for res judicata purposes. Although we have emphasized that "a change in labels is not sufficient to remove the [preclusive] effect of [a] prior adjudication," we think it clear that a civil action in tort is fundamentally different from a divorce proceeding, and that the respective issues involved are entirely distinct.

Aubert v. Aubert, 129 N.H. 422, 425-26, 529 A.2d 909, 911 (1987) (emphasis in original) (citations omitted); see also McLean v. McLean, 461 So.2d 1031, 1033 (Fla.Dist.Ct.App.1985) (divorce not res judicata as to action on promissory note executed during marriage); Harris v. Harris, 149 Ga.App. 842, 843, 256 S.E.2d 86, 87 (1979) (action on debt accrued during marriage not barred by res judicata where issue was not litigated in divorce action); ...