John Daniel Mooney v. Deborah A. Mooney

Of the Sixth Circuit, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 06-1118
JOHN DANIEL MOONEY,
Plaintiff, Appellant,
v.
DEBORAH A. MOONEY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Circuit Judge,
Siler, Senior Circuit Judge, *
and Howard, Circuit Judge.
Brian J. Hughes, with whom Donald J. Jackson, Jr. and The
Law Offices of Donald H. Jackson, Jr., P.C. were on brief, for
appellant.
Elaine M. Epstein, with whom Maureen McBrien, Edward Foye
and Todd & Weld LLP were on brief, for appellee.
December 22, 2006

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HOWARD, Circuit Judge. Under Massachusetts domestic relations
law, a married couple may obtain the benefits of a "no fault"
divorce by averring that "an irretrievable breakdown of the
marriage exists" and persuading a probate court judge to approve a
notarized separation agreement setting forth the terms on which the
marriage is to be dissolved. Mass. Gen. Laws ch. 208, § 1A. In
such circumstances, the separation agreement "shall either be
incorporated and merged into [the divorce judgment] or by agreement
of the parties, it shall be incorporated and not merged, but shall
survive and remain as an independent contract." Id. If the
agreement is incorporated but not merged, it remains binding on the
parties and may serve as the basis for a legal action to enforce
its terms -- e.g., a claim for unpaid alimony -- which may be
brought separate and apart from any contempt motion filed in the
divorce case. See, e.g., Mansur v. Clark, 521 N.E.2d 759, 761
(Mass. App. Ct. 1988) (collecting cases).
In this case, plaintiff John Daniel Mooney, a Massachusetts
resident, brought a diversity action seeking rescission or
cancellation of the separation agreement dated April 1, 1999, and
in effect between himself and his former wife, Deborah A. Mooney,
now a Maine resident. The agreement, which requires John to pay
Deborah $650 per week in alimony, was incorporated, but not merged,
into a no fault judgment of "divorce nisi" entered in favor of the
couple in the Massachusetts Probate Court on June 1, 1999, which by

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operation of law became a judgment of "divorce absolute" ninety
days later. See Mass. Gen. L. Ann. c. 208, § 21. The divorce
judgment also requires John to pay Deborah $650 per week in
alimony. John says that the agreement was procured by duress,
coercion, and undue influence, and that he did not enter into it of
sound mind.
Shortly after this action was filed, Deborah filed a contempt
claim within the divorce action, to which John filed a
counterclaim. Originally, the counterclaim made the same
allegations challenging the validity of the separation agreement
that are set forth in the federal complaint. Subsequently,
however, John filed an amended counterclaim which omits the
allegations challenging the validity of the separation agreement
and asks only that, because of changed circumstances, the no fault
divorce judgment be modified so as to discharge John's alimony
obligations. Citing the pendency of the probate court action,
Deborah moved the district court to abstain from exercising
jurisdiction over this case. The court granted the motion, citing
a 1986 decision in which we endorsed abstaining from diversity
claims "that are closely related to, though not within," what we
described as a "jurisdictional exception" to the diversity statute,
28 U.S.C. § 1332, encompassing "domestic relations issues."
Gonzalez Canevero v. Rexach, 793 F.2d 417, 418 (1st Cir. 1986)
(citations and internal quotation marks omitted). John appeals the

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abstention order, arguing that Rexach has been abrogated by recent
Supreme Court cases emphasizing the narrowness of the domestic
relations exception.
John is on solid ground in questioning the continuing vitality
of Rexach. In Ankenbrandt v. Richards, the Supreme Court clarified
that the domestic relations exception "encompasses only cases
involving the issuance of a divorce, alimony, or child custody
decree." 504 U.S. 689, 704 (1992). And more recently, in Marshall
v. Marshall, the Court emphasized, once again, that abstention is
not appropriate when a claim, though related to a domestic
relations issue, does not itself challenge a divorce, alimony, or
child custody decree. See 126 S. Ct. 1735, 1744-46 (2006). In
light of Ankenbrandt and Marshall, abstention is not warranted
simply because a claim that is "not within" the domestic relation
exception is, nonetheless, "closely related to" a domestic
relations matter. (We say "simply" because, as Ankenbrandt itself
recognized, there may well be other grounds for abstaining -- e.g.,
those articulated in Burford v. Sun Oil Co., 319 U.S. 315 (1943) --
in such circumstances. See 504 U.S. 704-06 & n.8.)
Even so, the district court properly dismissed this lawsuit.
See In re Miles, 436 F.3d 291, 293-94 (1st Cir. 2006) (appellate
court can affirm on any ground within its power supported by the
record). In a case overlooked by the parties, the Massachusetts
Supreme Judicial Court held that, notwithstanding the availability

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of a separate cause of action to enforce a separation agreement
incorporated but not merged into a divorce decree, an independent
action seeking rescission of such an agreement does not lie where
the party seeking rescission also is challenging the validity of
the divorce decree. See Saltmarsh v. Saltmarsh, 480 N.E.2d 618,
620-22 (Mass. 1985). In the SJC's view, a separate rescission
action in such circumstances is "unnecessary and inappropriate"
because there is "an adequate remedy within the divorce
proceeding." Id. at 620-21. A successful challenge to the divorce
decree would have the effect of nullifying the separation
agreement, the validity and approval of which are necessary
predicates to the couple receiving the benefits of a no fault
divorce. See id. at 621; Mass. Gen. Laws ch. 208, § 1A. Thus,
insofar as John's counterclaim might be read to challenge the
validity of the divorce decree, he is barred by Saltmarsh from
pressing his federal claim.
There is an obvious rejoinder to this line of analysis. John
tells us that he is not challenging the validity of the divorce
decree, and that he has amended his counterclaim in the divorce
proceeding to ask only for its "modification." Compare Saltmarsh,
480 N.E.2d at 622 (making clear that the party seeking rescission
alleged that she would not have agreed to a no-fault divorce had
she known the facts grounding her request for rescission). And
Saltmarsh does not necessarily stand for the proposition that an

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independent action for rescission of a separation agreement is
barred because the same relief could be obtained in a successful
attack upon the divorce decree.
But John cannot have it both ways. John was entitled to the
benefits of a no fault divorce only because he persuaded the
probate court to find that he had reached a valid and appropriate
separation agreement with Deborah. See Mass. Gen. Laws ch. 208, §
1A. If he wishes to continue to benefit from that judgment while
seeking a favorable modification of its terms due to changed
circumstances, equity requires that he be taken to be continuing to
represent to the probate court that the judgment's essential
preconditions were met. Otherwise, the judgment ought to be
vacated, not modified. Cf. Scholz v. Scholz, 324 N.E.2d 617, 618
(Mass. 1975) (noting that a divorce absolute may be set aside in
the event of fraud or mistake). And if John is affirmatively
(albeit implicitly) representing in the divorce proceeding that the
separation agreement remains valid, he should not be permitted to
obtain equitable relief on the basis of a contrary position taken
in this action. See New Hampshire v. Maine, 532 U.S. 742, 749-51
(2001); 18 Charles Alan Wright et al., Federal Practice and
Procedure § 4477, 608-14 (2d ed. West 2002).
In the end, then, John cannot obtain rescission or
cancellation of the separation agreement in this action. This
disposition obviates the need for consideration whether, as Deborah

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argues in support of alternative grounds for affirmance, there
exist in this case other grounds for abstention.
Affirmed.

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