Dispositive Motions in the Probate and Family Court
You have been contacted by your client because they have been served with a complaint. If your blinders are on, you may jump right into drafting your answer and a potential counterclaim and preparing for litigation. However, you would be doing your client a disservice if you do not evaluate the complaint under the lens of whether filing a dispositive motion would be an appropriate next step in the case. Dispositive motions, such as Motions to Dismiss and Motions for Summary Judgment, are often underutilized in Probate and Family Court, but in the right case, they can be useful tools to dispose of all or part of the claims in favor of your client, saving them a lot of time and money on litigation.
Motions to Dismiss
In general, motions to dismiss address failures on the face of the pleading including, but not limited to, jurisdictional issues or when the complaint fails to state a claim upon which relief may be granted. In a case in which the complaint fails to state a claim upon which relief may be granted, the filing of a motion to dismiss pursuant to Massachusetts Rules of Domestic Relations Procedure Rule 12(b)(6) permits a swift resolution in a case where the plaintiff’s allegations in the complaint clearly demonstrate a claim that is legally insufficient. See Nguyen v. William Joiner Center for Study of War and Social Consequences, 450 Mass. 291, 295 (2007). The standard for a motion to dismiss pursuant to Massachusetts Rules of Domestic Relations Procedure Rule 12(b) (6) was clarified in Iannacchino v. Ford Motor Co. 451 Mass. 623 (2008), where it was held that “what is required at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect the threshold requirement that the ‘plain statement’ possess enough heft to ‘show that the pleader is entitled to relief.” Id. at 635. However, it is important to note that Massachusetts Rules of Domestic Relations Procedure Rule 8(f) was not changed by Iannacchino, and that “all pleadings shall be so construed as to do substantial justice.”
Another consideration is that a defense of res judicata may be properly raised in a motion to dismiss. See Saisi v. Board of Trustees of State Colleges, 6 Mass. App. Ct. 949 (1978). As such, in your review of the complaint, you should question whether there previously has been an adjudication upon the facts and circumstances plead in said complaint. If the moving party is seeking a “second bite at the apple” a motion to dismiss may be appropriate. The doctrine of claim preclusion makes a final, valid judgment binding on the parties and precludes further litigation regarding matters that were or should have been adjudicated in said action. Heacock v. Heacock, 402 Mass. 21, 23 (1988); see also Franklin v. North Weymouth Coop. Bank, 283 Mass. 275, 279-280 (1933). This fact holds true even if the plaintiff is prepared to present alternative legal theories or request alternative remedies in the subsequent action. Further, collateral estoppel bars a party from re-litigating an issue under the following circumstances: 1) there was a final judgments on the merits in a previous case; 2) the party against whom estoppel is asserted was a party in the previous case; 3) the issue in the previous case is identical to the issue in the current litigation; and 4) the issue decided in the previous case was essential to the earlier judgment. See Okoli v. Okoli, 81 Mass. App. Ct. 381, 385 (2012).
An example of a case where you may consider filing a motion to dismiss would be if a Separation Agreement includes a formula for calculating alimony and the plaintiff files a complaint for modification seeking increased alimony because the other payor’s income has increased. However, the payor’s increased income was already contemplated in the alimony formula outlined in the Separation Agreement. Another example would be if a complaint for contempt is filed for failure to reimburse the plaintiff for the cost of the children’s summer camp, but summer camp expenses are not included in the parties’ Separation Agreement as a child expense to be divided between the parties, meaning there is no clear and unequivocal order requiring the payment of the summer camp cost.
Motions for Summary Judgment
Motions for summary judgment are governed by Massachusetts Rules of Domestic Relations Procedure Rule 56. Rule 56(h) states that: “the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The moving party has the burden of affirmatively demonstrating to the court “that there is no genuine issue of material fact on every relevant issue, even if [he] would have no burden on an issue if the case were to go to trial.” Department of Rev. v. Mason M., 439 Mass. 665, 674 (2003), quoting from Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). Further, “in deciding a motion for summary judgment, a court does not resolve issues of material fact, assess credibility, or weigh evidence.” Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007).
It is important to note that motions for summary judgment may not be filed in divorce actions or in actions for custody or visitation or for criminal contempt. See Mass. R. Dom. Rel. P. 56 (a). With respect to other cases, such as modification and civil contempt actions, you need to think about the appropriate time to file the motion. For instance, it may not make much sense to file a motion for summary judgment if the other side will assert that discovery needs to be completed in the matter. If that is the case, filing the motion for summary judgment after discovery is complete may be more appropriate. If you are moving forward with a motion for summary judgment, or opposing such motion, it is imperative that you adhere to the specific requirements outlined in Supplemental Probate Court Rule 27C.
An example of a case in which you may consider filing a motion for summary judgment for the purpose of narrowing viable claims in the action and possibly avoiding lengthy and expensive discovery and Pre-Trial Conference preparation would be if you filed a complaint for modification to terminate Department of Revenue’s collection of child support for an emancipated child and the child is clearly emancipated.
While dispositive motions are not appropriate in all cases, practitioners should not shy away from filing these motions when their case is ripe for the same. Part of our job is to find creative ways to resolve the matter for our client. By filing a dispositive motion, you may provide the judge with an opportunity to dispose of the case in the early stages, which will save your client significant funds by avoiding further, unnecessary litigation of the matter.
