Kelso v. Kelso (Lawyers Weekly No. 11-107-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 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 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 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 […]