25-1575 Cosel v. Wendt

United States Court of Appeals
For the First Circuit

No. 25-1575
MOLLY COSEL,
Plaintiff, Appellee,
v.
GEOFFREY C. WENDT, as Trustee of the William G. Wendt 2022
Family Trust,

Defendant, Appellant,
WILLIAM H. WENDT; DALIA K. WENDT,
Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Aframe, Lynch, and Kayatta,
Circuit Judges.

Christopher M. Hennessey, with whom Cohen Kinne Valicenti &
Cook LLP, David H. Rich, and Todd & Weld LLP were on brief, for
appellant.
Dennis M. LaRochelle, with whom Cain Hibbard & Myers PC was
on brief, for appellee.

August 11, 2026

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AFRAME, Circuit Judge. At its core, this diversity
action is a dispute between Molly Cosel ("Molly") and her former
in-laws, the Wendts, over real property located in western
Massachusetts. But after several state court proceedings, that
central dispute has morphed into complicated questions of state
procedural and property law. Below, the district court addressed
many of these legal issues to grant Molly summary judgment. In so
doing, it resolved unsettled questions of Massachusetts law
related to property owned by tenants by the entirety and the
meaning of "necessaries" under Massachusetts General Laws,
chapter 209, § 1 ("Chapter 209"). We view the district court's
decision as a mixed bag. Accordingly, we affirm in part, reverse
in part, vacate in part, and remand for further proceedings
consistent with this opinion.
1

I. Background
A. Facts
The following facts are undisputed except where
otherwise noted.
In 2014, Molly and William G. Wendt ("Will") married.
About two years later, around the birth of Molly and Will's second
child, Molly's parents divided their property and then deeded one

1
This opinion addresses several complex areas of law.
For a summary, see infra Part III.C.

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of the subdivisions, 40A McCarthy Road, Tyringham, Massachusetts
(the "Property"), to Molly and Will as tenants by the entirety.
Upon receiving the Property from Molly's parents, Molly
and Will planned to develop it substantially (though Molly disputes
the extent to which she participated in planning and budgeting for
the developments). They sought to renovate a pre-existing
structure on the Property and build a second one. Some of these
projects were intended to develop a family home; others aimed at
building Will a studio so that he could pursue a career in
photography.
Initially, Molly and Will financed these projects with
gifted funds from Will's parents, William H. and Dalia Wendt
("Bill" and "Dalia," respectively; the "Wendt Parents" together).
But by November 2017, the couple had depleted those funds.
Starting in February 2018, the Wendt Parents provided over
$1.5 million in additional funds for the project (the "Disputed
Funds").
In 2019, Molly and Will's marriage started to
deteriorate. When the Wendt Parents learned about these marital
problems, they memorialized the Disputed Funds as a loan in a
promissory note. Will signed the note; Molly did not. Until the
Disputed Funds were memorialized in the promissory note, there had
been no terms attached to them -- for example, the parties had not
established an interest rate on the funds or a payment timeline.

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Nevertheless, Bill, Dalia, and the Wendt family accountant each
claimed that the Disputed Funds were always intended to be a loan.
In February 2020, as marital conditions worsened, Molly
temporarily moved from the Property and filed for divorce. Molly
returned to the Property following the conclusion of the divorce
proceedings, around October 2022.
Starting a few weeks before Molly moved from the
Property, several lawsuits were filed, culminating in this action.
First, on February 6, 2020, Molly filed for divorce from Will in
Berkshire Probate and Family Court (the "Family Court"). Then, in
November 2020, the Wendt Parents sued Will, but not Molly, in
Massachusetts Superior Court to collect on the promissory note
(the "Default Suit"). Will did not appear in court, speak with a
lawyer, or present any defense for failing to repay the loan. So,
in December 2020, the Superior Court entered a default judgment
for the Wendt Parents against their son. Several weeks later, the
Superior Court issued a writ of execution on the default judgment,
purporting to allow the Wendt Parents to sell Will's interest in
the Property in satisfaction of the loan. In due course, the
Berkshire County Sheriff's Department recorded the execution at
the county registry of deeds, establishing a judgment lien.
At this point, Will and Molly's divorce proceedings were
ongoing. So, in June 2021, to protect their interest in the
Property, the Wendt Parents filed another action in Massachusetts

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Superior Court (the "Quiet Title Suit"). This time, they sued
several parties, including Will, Molly, and some of Molly's
relatives. In relevant part, the Wendt Parents sought to hold
Molly jointly and severally liable for the Disputed Funds and to
quiet title on the Property.
Molly and her family moved to dismiss the Quiet Title
Suit. In the alternative, they sought to stay the action until
the divorce proceedings concluded. As in the Default Suit, Will
did not appear. The court denied the motion to dismiss the suit
but stayed the case until the end of the divorce proceedings.
Still seeking to protect their interest in the Property,
the Wendt Parents moved to intervene in the divorce proceedings.
Molly opposed their intervention, and the Family Court denied the
Wendt Parents' motion. Bill then asked to testify, though because
he was in poor health, he sought to do so remotely. The Family
Court denied Bill's request to testify remotely, but it permitted
the Wendt Parents' accountant to testify remotely on their behalf.
In July 2022, the Family Court entered a judgment of
divorce nisi (the "divorce decree"). As is relevant here, the
divorce decree stated that Molly "shall retain the [Property] free
and clear from any claim by [Will]" and required Will to "transfer
to [Molly] a deed conveying all of his right, title and interest
in and to [the Property]." The divorce decree also distributed
some of the couple's liabilities. This portion of the decree

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addressed the promissory note that had memorialized the alleged
loan, ordering that, to the extent the note "constitute[d] a legal
obligation," Will was "solely responsible" for satisfying it.
Finally, the decree required Molly to pay Will $250,000 to ensure
"an equitable distribution of the marital estate." The
Massachusetts Appeals Court affirmed the decree in all relevant
parts. In so doing, it noted that the Family Court was not "plainly
wrong" in finding that the promissory note for the Disputed Funds
had created a "sham obligation."
After entering the divorce decree, the Family Court
clarified it in a separate order. This order explained that the
court did not view the Disputed Funds as a "bona fide marital debt"
because Molly was uninvolved in procuring the Disputed Funds or
spending them. Nevertheless, the Family Court acknowledged that
"it lacked any authority to adjudicate" Will and his parents'
rights with respect to the promissory note. Based on this
recognition, the Family Court explained that the divorce decree
did not "vitiate either the [Wendt Parents'] default judgment or
the Execution."
After the Family Court issued the divorce decree, the
Wendt Parents obtained a voluntary dismissal without prejudice of
the Quiet Title Suit. A few weeks later, they assigned their
interest in the default judgment to the William G. Wendt 2022
Family Trust (the "Trust") and named Molly and Will's children as

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beneficiaries. They also appointed Geoffrey Wendt ("Geoffrey"),
another of their sons, as trustee. In August 2022, the Trust's
attorney issued a notice of sheriff's sale stating that Will's
purported "undivided one-half interest" in the Property would be
sold on September 16, 2022.
B. Procedural History
That brings us to this suit. On August 19, 2022, after
learning that the Sheriff intended to sell the Property, Molly,
who is domiciled in Massachusetts, filed suit in Massachusetts
Superior Court against the Wendt Parents. She sought a declaratory
judgment and an injunction preventing the foreclosure and sale of
the Property to pay the judgment lien. The Wendt Parents, who are
domiciled in Indiana, removed the case to federal court asserting
diversity jurisdiction. See 28 U.S.C. § 1332. Molly then amended
her complaint to add Geoffrey, an Indiana domiciliary, in his
capacity as Trustee of the Trust, and about two weeks later, the
parties stipulated to dismiss the Wendt Parents with prejudice.
The Trust answered Molly's amended complaint and asserted
counterclaims seeking declaratory judgments that (1) Molly is
jointly and severally liable for the Disputed Funds and (2) the
Berkshire Sheriff could sell the Property at public auction.
After discovery, the parties cross-moved for summary
judgment. The district court noted that there was a dispute of
fact over whether the Disputed Funds arose from a valid loan.

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Cosel v. Wendt, 777 F. Supp. 3d 16, 21 (D. Mass. 2025). So, it
continued, should that dispute be material, it "would foreclose
summary judgment for either party." Id. But the court held that
this dispute was immaterial because even assuming, favorably to
the Trust, that the Disputed Funds arose from a valid loan, Molly
was entitled to summary judgment on all claims and counterclaims.
Id. at 24-26. The court rested its decision on two legal premises.
First, the district court interpreted Massachusetts law
on tenancies by the entirety to hold that, when the Family Court
granted Molly all rights to the Property and required Will to
transfer his interest in the Property to Molly in the divorce
decree, that distribution of rights and the subsequent divorce
extinguished the interests of Will's creditors (i.e., the Trust)
in the Property. Cosel, 777 F. Supp. 3d at 24-25. Second, the
court concluded that the Disputed Funds were not spent on
"necessaries," a term of art under Chapter 209. Id. at 25-26.
This conclusion meant that Molly was not jointly and severally
liable for the purported loan, even assuming that it was valid.
Id.; see Mass. Gen. Laws ch. 209, § 1 ("[B]oth spouses shall be
liable jointly or severally for debts incurred on account of
necessaries furnished to either spouse . . . ."). The court then
granted summary judgment for Molly.
The Trust sought reconsideration and argued that,
because the Property had ceased to be Molly's principal residence

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when she moved away during the pendency of the divorce, the Wendt
Parents had perfected their judgment lien on the Property under
Chapter 209 when they recorded the execution at the registry of
deeds. The district court rejected this argument. It reasoned
that the execution against Will's interest had not been validly
completed before the divorce, and it emphasized that the earlier
proceedings occurred without notice to Molly or any determination
that the Property had ceased to be her principal residence.
On the same day that the district court denied the
Trust's motion for reconsideration, it issued a final judgment in
Molly's favor declaring that the Trust holds no interest in the
Property and that the writ of execution issued in the Default Suit
"does not attach any interest in the [P]roperty." The court also
dismissed the Trust's counterclaims with prejudice.
The Trust timely appealed. We have jurisdiction under
28 U.S.C. § 1291.
II. Standard of Review
We review a district court's grant of summary judgment
de novo.
2
Alicea v. Cincinnati Inc., 166 F.4th 245, 253 (1st Cir.

2
Our de novo review extends to the district court's order
denying the Trust's motion for reconsideration, which is where the
Trust raised its principal residence argument. Though we
ordinarily review denials of motions for reconsideration for abuse
of discretion, we review de novo whether the principal residence
issue precluded summary judgment because the parties' appellate
arguments concern "the propriety vel non of summary judgment"
rather than "the desirability vel non of reconsideration." Best

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2026). In conducting this review, we construe all disputes of
fact and reasonable inferences in favor of the non-moving party.
See id. We will affirm a grant of summary judgment to the moving
party only if, under that reading of the record, we conclude that
they are "entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). Where, as here, both parties sought summary judgment,
we separately evaluate each motion under this rubric. See Gibson
Found., Inc. v. Norris, 88 F.4th 1, 5-6 (1st Cir. 2023).
III. Discussion
On appeal, the Trust attacks practically every aspect of
the district court's orders. Based on these perceived errors, the
Trust argues that the court's decision should be reversed and that
summary judgment should be granted in its favor. For her part,
Molly defends the court's rulings. She further argues that federal
courts are barred from hearing the Trust's counterclaims because
of the domestic relations exception.
We address first the issues as they pertain to Molly's
claims. In so doing, we review tenancies by the entirety under
Massachusetts law, Chapter 209, the validity of the promissory
note with respect to Molly, and Molly's principal residence. We
then turn to the Trust's counterclaims, at which point we address

Auto Repair Shop, Inc. v. Universal Ins. Grp., 875 F.3d 733, 737
(1st Cir. 2017) (quoting Santiago v. Puerto Rico, 655 F.3d 61,
67-68 (1st Cir. 2011)).

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the domestic relations exception and whether the purported loan
was spent on necessaries.
Both parties bring their claims under Massachusetts law,
so, as a federal court sitting in diversity, we apply the
Commonwealth's substantive law. Blakesley v. Marcus, 158 F.4th
90, 95 (1st Cir. 2025). And where Massachusetts law is unclear,
we predict how the state's highest court, the Supreme Judicial
Court (the "SJC"), would rule. See id.; Abdisalam v. Strategic
Delivery Sols., LLC, 171 F.4th 30, 36 (1st Cir. 2026).
A. Molly's Claims
Molly brought claims for a declaration and an injunction
that would prevent the Trust from proceeding with a sheriff's sale
of an interest in the Property. Whether she is entitled to this
relief requires resolution of multiple issues.
The first is whether the loan represented by the
promissory note is valid as to Molly. If it is not and instead is
the result of a "conspiracy" between Will and his parents "to
encumber a marital asset," then it may not be the basis for
obtaining a lien on the Property that would dispossess Molly of
it. Feldman v. Feldman, 480 N.E.2d 45, 47-48 (Mass. App. Ct. 1985)
(citation modified). Below, the district court acknowledged that
this was a threshold issue but determined that there was a genuine
dispute of material fact that prevented it from being resolved on
summary judgment. Cosel, 777 F. Supp. 3d at 21.

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Nevertheless, the district court granted Molly summary
judgment on other grounds. To do so, it held that even if the
loan were valid, Molly and Will's divorce and the Family Court's
distribution of the Property to Molly extinguished the Trust's
interest in the Property. Cosel, 777 F. Supp. 3d at 25.
Resolving the case in this manner required the district
court to predict Massachusetts law in an area that touches on
delicate and complex issues related to divorce and tenancies by
the entirety. Below, we explain why the district court should
have declined to address this unsettled and difficult issue of
Massachusetts law while potentially dispositive factual disputes
remained live. Based on this consideration, we vacate the order
to the extent it predicted Massachusetts law regarding the effect
of a divorce on a creditor's interest in property owned by the
entirety. We then turn to two additional concerns raised by the
Trust. First, whether Molly is precluded from challenging the
validity of the loan as it pertains to her because of the judgment
entered in the Default Suit; and second, whether the Wendt Parents
effected a valid execution on Will's interest in the Property prior
to Molly and Will's divorce. We reject the Trust's arguments.
1. Creditors' Interests, Divorce, and Tenancies by
the Entirety

The district court's determination that the divorce
extinguished the Trust's interest in the Property as Will's

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creditor primarily implicates Massachusetts law on tenancies by
the entirety. A tenancy by the entirety is a property estate "of
ancient common law origin." Coraccio v. Lowell Five Cents Sav.
Bank, 612 N.E.2d 650, 652 (Mass. 1993); see Shaw v. Hearsey, 5
Mass. 521, 522-23 (1809). At common law, the estate applied only
to property co-owned by spouses and reflected the unique property
interests that flow from marriage; a tenancy by the entirety was
"essentially a joint tenancy modified by the common-law theory of
the unity of husband and wife." Bernatavicius v. Bernatavicius,
156 N.E. 685, 686 (Mass. 1927). The estate provided spouses with
"concurrent ownership" of the property owned by the entirety.
Coraccio, 612 N.E.2d at 652-53. This concurrent ownership,
however, was gendered -- a husband, but not a wife, could alienate
his interest in the property. Licker v. Gluskin, 164 N.E. 613,
614-15 (Mass. 1929), superseded by statute, Mass. Gen. Laws
ch. 209, § 1, as recognized in Coraccio, 612 N.E.2d at 653-54.
At common law, the tenancy endowed the wife with an
"indestructible" right of survivorship. Coraccio, 612 N.E.2d at
653. So, even if a husband conveyed his interest, "such an
alienation could not defeat the right of the survivor spouse."
Id. Practically, this meant that even though "an individual
creditor of the husband could levy and sell on execution his
interest in the tenancy, [thereby] dispossess[ing] both the
husband and wife, the property always remained subject to the

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wife's survivorship right, and if the husband died before the wife,
the creditor lost all of his interest." Id.
During a marriage, the estate could only be destroyed by
"death, . . . a deed of both parties[,] or a deed of one spouse to
the other." Campagna v. Campagna, 150 N.E.2d 699, 703 (Mass.
1958). Upon divorce, a tenancy by the entirety dissolved into a
tenancy in common. Bernatavicius, 156 N.E. at 687.
In 1979, the Massachusetts legislature modernized the
estate by enacting Massachusetts General Laws, chapter 209, § 1.
1979 Mass. Acts 768 [https://perma.cc/KR4Q-83NC]; see Coraccio,
612 N.E.2d at 652-54. As is relevant here, Chapter 209 states:
A husband and wife shall be equally entitled
to the rents, products, income or profits and
to the control, management and possession of
property held by them as tenants by the
entirety.

The interest of a debtor spouse in property
held as tenants by the entirety shall not be
subject to seizure or execution by a creditor
of such debtor spouse so long as such property
is the principal residence of the nondebtor
spouse; provided, however, both spouses shall
be liable jointly or severally for debts
incurred on account of necessaries furnished
to either spouse or to a member of their
family.

Mass. Gen. Laws ch. 209, § 1.
Although Chapter 209 equalized the estate with respect
to husband and wife, "[t]he statute did not . . . alter the
characteristics of the estate itself." Coraccio, 612 N.E.2d at

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654. The SJC thus has interpreted Chapter 209 to permit each
individual spouse to convey and encumber his or her own interest
in property owned by the entirety, including by mortgaging it.
Id. at 654-55. So long as the property remains held by the spouses
as tenants by the entirety and is the nondebtor spouse's principal
residence, a creditor may attach the debtor spouse's interest but
may not seize or execute on it. See Peebles v. Minnis, 521 N.E.2d
1372, 1373 (Mass. 1988); Coraccio, 612 N.E.2d at 653-55 & n.9.
Moreover, the estate is not severable or subject to voluntary
partition. Coraccio, 612 N.E.2d at 654. Under Chapter 209, each
spouse retains a right of survivorship, which means that if the
debtor spouse predeceases the nondebtor spouse, then the nondebtor
spouse will obtain full ownership of the property, free and clear
of any interests belonging to the deceased spouse's creditors.
Bakwin v. Mardirosian, 6 N.E. 3d 1078, 1084 (Mass. 2014).
Against this legal backdrop, the district court took on
the following question: when a creditor (the Trust, as
successor-in-interest to the Wendt Parents) holds a judgment lien
on one spouse's (Will's) interest in property held by the entirety
(the Property), what happens to the lien when that property is
distributed to the nondebtor spouse (Molly) as part of a divorce
decree? The court ruled that the creditor's interest is
extinguished. Cosel, 777 F. Supp. 3d at 25. Other jurisdictions
have decided differently -- one has developed a rule that would

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allow a mortgagee, after divorce dissolved a tenancy by the
entirety, to foreclose on the interest mortgaged by one spouse,
with the purchaser becoming a tenant in common entitled to seek
partition, see V.R.W., Inc. v. Klein, 503 N.E.2d 496, 499-501 (N.Y.
1986); another has adopted a rule that would tie the creditor's
interest to whether the nondebtor spouse survives the debtor spouse
even after the divorce, see Freda v. Com. Tr. Co., 570 A.2d 409,
414-15 (N.J. 1990). So far as we can tell, no other jurisdiction
has adopted the district court's rule.
3
That is not to say that
the SJC would reject the district court's prediction of
Massachusetts law; it does, however, suggest that it is far from
certain that the SJC would adopt it.
In the past, where resolution of factual disputes could
potentially obviate the need to address a sensitive and complex
question of state law, we have held that considerations of "comity
and federalism" counsel for federal courts addressing the factual
disputes first. Ruiz-Sánchez v. Goodyear Tire & Rubber Co., 717
F.3d 249, 251 (1st Cir. 2013). And in the event a district court
has skipped ahead to resolve the case based on a prediction of a
difficult question of state law, we have vacated the court's

3
A New Jersey intermediate appellate court did adopt the
district court's rule. See Daeschler v. Daeschler, 520 A.2d 777,
778 (N.J. Super. Ct. App. Div. 1986). But the New Jersey Supreme
Court later rejected it in favor of one that preserved some of the
creditor's interests. See Freda, 570 A.2d at 412-15.

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judgment and remanded for resolution of the antecedent factual
questions, recommending that the court consider certification if
it became necessary to resolve the legal issue. Id. at 255-56.
We think that approach fits under the unusual
circumstances presented here. If the district court concludes
that the loan is a sham, then that loan cannot be enforced against
Molly, including through the judgment lien. Similarly, if the
Wendt Parents and Will colluded to use the Default Suit to encumber
Will's interest in the Property and frustrate its award to Molly,
then the resulting lien could be set aside as against Molly. See
Feldman, 480 N.E.2d at 47-48. Were either of these situations the
case, then Molly would own the Property free and clear of any
encumbrance so derived, and the court would not need to decide the
difficult legal question about the effect of the divorce under
Massachusetts law. Accordingly, we vacate the court's order
insofar as it predicted the effect of Molly and Will's divorce on
the Trust's interest in the Property and remand for a determination
on the threshold question of the validity of the loan as to Molly.
2. The Trust's Responses
The Trust believes that, though favorable to it,
vacating the district court's decision on this point does not go
far enough. First, it argues that the district court must treat
the loan as valid with respect to Molly. The Trust primarily
believes this is so because the Default Suit judgment is predicated

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on a conclusion that the loan is valid, and it is too late now for
Molly to challenge that determination. As a fallback position,
the Trust asserts that even if Molly could challenge the validity
of the loan in this suit, the record compels a finding that the
loan is valid. If the Trust is right on either contention, then
remanding for further factual development about the bona fides of
the loan would be pointless, and we would have to address the
difficult question of Massachusetts law that we just described.
Second, the Trust renews the argument from its motion to
reconsider that the Wendt Parents perfected a valid judgment lien
on Will's interest in the Property before the Family Court
distributed the Property to Molly in the divorce. It argues that
the lien was valid because, when it was perfected, the Property
was not Molly's principal residence. We reject both arguments.
4

4
The Trust also argues that Molly should be judicially
estopped from making some of her arguments. "[J]udicial
estoppel . . . generally prevents a party from assuming
inconsistent positions in successive litigation" to obtain an
unfair advantage. Keathley v. Buddy Ayers Constr., Inc., 608
U.S.___, 146 S. Ct. 1532, 1536 (2026); see Díaz-Báez v.
Alicea-Vasallo, 22 F.4th 11, 21 (1st Cir. 2021).
The Trust asserts that Molly obtained a stay in the Quiet
Title Suit pending the conclusion of the divorce action and then
successfully opposed the Wendt Parents' intervention in the
divorce proceedings in part by agreeing that the divorce decree
would not have a "conclusive effect" on the Wendt Parents'
interests. This, the Trust continues, prevented the Wendt Parents,
the Trust's predecessors-in-interest, from presenting evidence
regarding the validity of the alleged loan. The Trust contends
that these positions judicially estop Molly from arguing in this

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a. Validity of the Loan
The Trust contends that Molly cannot contest the
validity of the loan in this action because to do so would
effectively challenge the judgment in the Default Suit. To
challenge that default judgment, it continues, Molly would have
had to try to vacate the judgment either by intervening in the
Default Suit and filing a timely motion under Massachusetts Rule
of Civil Procedure 60(b), or by initiating an "independent
action," a term of art under Rule 60(b). The Trust concludes that
because Molly did not timely avail herself of either option, she
may not obtain the relief in this action that she could have
obtained in state court.
5
In response, Molly argues that she

suit that the divorce decree settled that Molly owns the Property
"free and clear of the alleged debt owed by Will Wendt."
We do not believe that judicial estoppel applies to Molly's
arguments before us. To the extent the Trust seeks to prevent
Molly from arguing that the divorce decree has a preclusive effect
on these proceedings, we do not see that Molly has made that
argument in this Court. And to the extent the Trust seeks to
prevent Molly from arguing about the validity of the loan, we do
not believe that the judicial estoppel standard has been met, as
Molly has consistently claimed that Will is bound by the judgment
in the Default Suit, but that the loan should be understood as
invalid as to her.
5
A party has one year to file a motion under Massachusetts
Rule of Civil Procedure 60(b) to vacate a judgment for fraud.
Mass. R. Civ. P. 60(b). An independent action premised on fraud
similarly has a one-year statute of limitations in most cases.
See Sahin v. Sahin, 758 N.E.2d 132, 137 (Mass. 2001). Molly filed
this suit over a year after the judgment issued in the Default
Suit.

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should not be so constrained. She points out that she was not a
party to the Default Suit. Relatedly, she contends that she does
not want to challenge the default judgment insofar as it assigns
legal rights between Will and his parents; rather, she seeks only
to limit the judgment so that it cannot be applied to force the
sale of the Property. Cf. Feldman, 480 N.E.2d at 47-48 (upholding
a decision to prevent a fraudulent mortgage from dispossessing a
spouse). We agree with Molly.
Though the Trust does not expressly invoke preclusion,
it essentially argues that Molly is stuck with the judgment in the
Default Suit and that Rule 60(b) was her only way to avoid its
binding effect. Because that judgment was rendered in
Massachusetts, we look to the Commonwealth's law to determine its
preclusive effect with respect to Molly. See In re Sonus Networks,
Inc, S'holder Derivative Litig., 499 F.3d 47, 56 (1st Cir. 2007).
Massachusetts Rule of Civil Procedure 60(b) provides
mechanisms to "relieve a party or his legal representative from a
final judgment, order, or proceeding." Under the Rule, a party
may seek relief from judgment either directly, i.e., in the same
suit in which judgment was rendered, or collaterally, through what
is known as an "independent action." See Mass. R. Civ. P. 60(b);
Sahin v. Sahin, 758 N.E.2d 132, 137-38 (Mass. 2001); see also
Harker v. City of Holyoke, 457 N.E.2d 1115, 1117 n.3 (Mass. 1983)
(delineating between direct and collateral attacks). To interpret

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Rule 60(b), courts look to its federal "cognate." Sahin, 758
N.E.2d at 137 n.7.
6

In effect, both direct and collateral attacks on a
judgment under Rule 60(b) are "escape hatch[es]" from the
preclusive effect of a judgment. Lundborg v. Phoenix Leasing,
Inc., 91 F.3d 265, 270 (1st Cir. 1996); see id. at 270-72
(discussing independent actions). But a judgment typically
carries preclusive effect only with respect to the parties to that
judgment and those parties' privies. See DeGiacomo v. City of
Quincy, 63 N.E.3d 365, 369-71 & n.5 (Mass. 2016). Consistent with
that principle, Rule 60(b) is generally only applicable and
available to parties and their privies. See 11 Wright & Miller's
Federal Practice & Procedure § 2865 & nn.6-7 (3d Ed. 2012).
7

6
In federal court, direct attacks on judgments are
addressed in Federal Rule of Civil Procedure 60(b), while
independent actions are covered in Rule 60(d)(1). Previously,
however, independent actions were also addressed in Rule 60(b).
See Fed. R. Civ. P. 60(b) advisory committee's note to 2007
amendment.
7
In rare circumstances, some courts have permitted
litigants who were neither parties nor their privies to intervene
and file Rule 60(b) motions when their "interests were directly or
strongly affected by the judgment." Bridgeport Music, Inc. v.
Smith, 714 F.3d 932, 940 (6th Cir. 2013); see, e.g., id. at 940-41
(collecting federal cases); Butts v. Zoning Bd. of Appeals of
Falmouth, 464 N.E.2d 108, 110, 112-13 (Mass. App. Ct. 1984). But
none of those cases has stated that nonparties to underlying
judgments are required to pursue that path, and the Trust cites no
case so holding.

- 22 -

Here, Molly was not a party to the Default Suit, so the
only way she would be bound by the resulting judgment is if she
had been in privity with a party who was. The Trust, however,
does not argue that Molly was in privity with either Will or the
Wendt Parents. Because the Trust bears the burden to establish
the default judgment's preclusive effect, we proceed with the
understanding that Molly is not in privity with a party to the
Default Suit. See Sarvis v. Bos. Safe Deposit & Tr. Co., 711
N.E.2d 911, 922 (Mass. App. Ct. 1999) ("As the defendants are the
parties asserting both claim and issue preclusion, they bear the
burden of proof on the elements.").
8

Because Molly was neither a party to the Default Suit
nor in privity with a party who was, she did not need to avail
herself of Rule 60(b) and instead was free to pursue alternative
avenues for relief. See In re Lovitt, 757 F.2d 1035, 1039-40 (9th
Cir. 1985). Historically, Massachusetts recognized such
alternatives and permitted a nonparty to challenge a prior,

8
On appeal, the Trust cites only Matter of Childress, 851
F.2d 926 (7th Cir. 1988), to support its argument that Molly must
rely on Rule 60(b). There, the court affirmed an order construing
a pleading filed by a third party as a Rule 60(b) motion and held
that the plaintiff could seek Rule 60(b) relief because she was in
privity with a party to the underlying action. Id. at 927-29.
This case is distinguishable because, as we explained, the Trust
has not demonstrated that Molly was in privity with any party to
the Default Suit. Moreover, Childress says nothing about what
avenues of relief exist for nonparties who are not in privity with
a party to the suit.

- 23 -

allegedly defective judgment. For example, in Old Colony Trust
Co. v. Porter, the SJC permitted a nonparty to argue that a prior
judgment could not affect it because that judgment was issued by
a court lacking subject matter jurisdiction, even as the parties
to that judgment remained bound by it. 88 N.E.2d 135, 139 (Mass.
1949). And in Connor v. Morse, the SJC permitted nonparties to
obtain equitable relief from the consequences of a judgment
"collusive[ly] or fraudulent[ly]" entered in an action "in which
they could not be heard." 20 N.E.2d 424, 426-27 (Mass. 1939).
While these cases predate the Massachusetts Rules of Civil
Procedure, which became effective in 1974, State Bd. of Ret. v.
Woodward, 847 N.E.2d 298, 303 (Mass. 2006), the SJC has since cited
Old Colony to illustrate that parties bound by a prior judgment
generally may not challenge that prior judgment for lack of subject
matter jurisdiction through an independent action even though
nonparties may still "collateral[ly] attack" it. Harker, 457
N.E.2d at 1118 (quoting Old Colony, 88 N.E.2d at 139).
Today, the principles embodied in Old Colony and Connor,
among cases from other jurisdictions, have been crystallized and
elaborated on in the Restatement (Second) of Judgments § 76. See
Restatement (Second) of Judgments § 76 Reporter's Note
cmts. (b)-(c) (citing Old Colony and Connor). Though it does not
appear that Massachusetts courts have yet addressed Section 76,
they have often relied on the Restatement (Second) of Judgments to

- 24 -

interpret Massachusetts law.
9
Based on this reliance and the
Restatement's citation to Commonwealth cases, we believe that the
SJC would adopt Section 76 to evaluate whether Molly may sue to
prevent the judgment in the Default Suit from serving as the basis
for the sheriff's sale of the Property.
Section 76 would permit Molly to "obtain a determination
that the judgment is ineffective as to [her] through an action to
restrain enforcement of the judgment." Restatement (Second) of
Judgments § 76. To do so, Molly must show that (1) the prior
judgment does not have a preclusive effect on her; (2) "the
existence of the judgment jeopardizes a protectible interest of"
hers; and (3) the nature of her interest "warrants" imminent,
rather than future, relief.
10
Id. Molly satisfies the first

9
See, e.g., Laramie v. Philip Morris USA Inc., 173 N.E.3d
731, 745-46 (Mass. 2021) (relying on Restatement (Second) of
Judgments § 24); Mullins v. Corcoran, 172 N.E.3d 759, 768-74 (Mass.
2021) (relying on Restatement (Second) of Judgments §§ 27,
28(4)-(5), 53(b), 59); Commonwealth v. Sanchez, 151 N.E.3d 404,
415 (Mass. 2020) (relying on Restatement (Second) of Judgments
§ 28); DeGiacomo, 63 N.E.3d at 370 (relying on Restatement (Second)
of Judgments § 62 cmt. a); Cohen v. Cohen, 25 N.E.3d 840, 848
(Mass. 2015) (relying on Restatement (Second) of Judgments § 12).
10
The difference in timing between Section 76 and
Rule 60(b) further reveals that Section 76 is the more appropriate
avenue for relief for nonparties. Though Rule 60(b) requires that
a motion be filed within a year after judgment is entered (barring
good cause to extend the deadline for an independent action), see
supra note 5, Section 76 is tied to when the nonparty's interest
is imminently implicated. That makes sense -- the timing of
Rule 60(b) supports its concern with finality by incentivizing
parties to promptly litigate all their issues and claims shortly
after judgment. Section 76, however, recognizes that a judgment
may not implicate a nonparty's interest for an extended period

- 25 -

element because, as we explained, she is not bound by the judgment
in the Default Suit as she was neither a party to the action nor
in privity with a party who was. Molly satisfies the second
element because she has a protectible interest in the Property
that is called into doubt by the loan, as represented in the
Default Suit judgment. And she satisfies the third element because
the Trust claims that it owns a substantial interest in the
Property and is actively trying to sell it.
But even when a party satisfies these elements, it still
may not be entitled to limit the effect of the prior judgment.
Courts must also give due weight to competing interests,
particularly the interests of the parties bound by the judgment
and the risk that affirmative relief would unnecessarily disturb
their legal relationship. See Restatement (Second) of Judgments
§ 76 cmt. c. That is particularly so when a federal court is
reviewing a judgment issued by a state court. In such
circumstances, prudential considerations require us to look for
"evidence that the state court rendered its final judgment in a
discriminatory or otherwise impermissible manner." Casa Marie,
Inc. v. Super. Ct., 988 F.2d 252, 269 (1st Cir. 1993).

following the judgment (if ever). Consistent with that concern,
Section 76 ties its availability to when that interest is
threatened, staving off unnecessary litigation.

- 26 -

In this case, whether Molly is entitled to relief may
well hinge on whether the alleged loan is valid as applied to her,
or whether it is a sham intended by the Wendt Parents to dispossess
Molly of the Property, force Molly to pay sums not due, or
otherwise cause her financial harm. The district court held that
it could determine whether the loan was a sham only by resolving
factual disputes. Cosel, 777 F. Supp. 3d at 21. A conclusion
that the loan is a sham would reveal that the default judgment was
rendered in an impermissible manner, thereby justifying relief
under Section 76. Cf. Iantosca v. Step Plan Servs., Inc., 604
F.3d 24, 28-30, 32 & n.6, 34 (1st Cir. 2010) (affirming a
preliminary injunction freezing settlement proceeds where judgment
creditors, who were strangers to the litigation producing the
settlement, had a colorable claim that the payee's interest in the
proceeds rested on a fraudulent conveyance); Feldman, 480 N.E.2d
at 47-48 (affirming a decision setting aside a mortgage where the
debtor and mortgagee colluded to encumber a marital asset and
frustrate its award to the other spouse). The Trust contests the
district court's assertion that a factual dispute remains and
argues that the record indisputably shows that the loan is valid
as to Molly. We agree with the district court.
The Disputed Funds were not memorialized as a loan until
just after the Wendt Parents discovered Will and Molly's marital
troubles. Indeed, in his deposition, Bill acknowledged that there

- 27 -

were no terms to the loan -- including an interest rate or
repayment timeline -- until it was memorialized in the promissory
note. And neither Bill nor Will, in their respective depositions,
could reasonably explain how Will was going to pay back the entire
loan during the repayment period given his limited income.
Finally, the Wendt family's legal machinations are
eyebrow-raising. They drafted and signed the promissory note and
then reduced it to judgment in a suit in which Will did not appear,
all with no notice to Molly.
To be sure, Bill, Dalia, and the Wendt family accountant
have each testified that the Disputed Funds always were intended
to be a loan. But that just means that there is a dispute of fact
about the loan's validity. So, to determine whether relief is
appropriate under Section 76, the district court must resolve the
bona fides of the loan.
11

b. Principal Residence
The Trust separately renews its arguments from its
motion to reconsider. It points out that, although Chapter 209
generally prevents a debtor spouse's creditors from seizing or

11
Of course, while we deal here with whether Molly can
challenge a judgment to which she was not a party, the district
court's determination about the bona fides of the loan could have
other effects on the litigation. As we have explained, if the
loan was a sham designed to interfere with the Family Court's
distribution of marital property, the resulting lien against the
Property could be set aside. See Feldman, 480 N.E.2d at 47-48.

- 28 -

executing on the debtor spouse's interest in property held by the
entirety, the statute makes this protection contingent on the
property serving as "the principal residence of the nondebtor
spouse." Mass. Gen. Laws ch. 209, § 1. Where the property is not
the nondebtor spouse's principal residence, the debtor spouse's
interest may be subject to seizure or execution. Id.
The Trust argues that a reasonable factfinder could
conclude that when Molly moved from the Property during the
pendency of the divorce, it ceased to be her principal residence,
"thereby destroying" Will and Molly's "unitary title" in the
Property. And because the execution was recorded while, according
to the Trust, Molly was no longer occupying the Property as her
principal residence, "the Property was susceptible to [the]
[j]udgment [l]ien on Will's interest."
At the outset, we are uncertain whether the Trust
accurately describes Massachusetts law. When a property is not a
nondebtor spouse's principal residence, Chapter 209 permits a
creditor to seize and effect an execution on "[t]he interest of a
debtor spouse"; it does not say that the estate itself is
destroyed. Mass. Gen. Laws ch. 209, § 1; see Coraccio, 612 N.E.2d
at 654.
But even setting aside this concern, we agree with the
district court that the principal residence exception does not
apply here, albeit for different reasons than the court provided.

- 29 -

See Rose v. RTN Fed. Credit Union, 1 F.4th 56, 62 n.3 (1st Cir.
2021) (acknowledging that we may affirm the district court's
judgment for any reason supported by the record).
Both parties and the district court rely on
Massachusetts General Laws, chapter 188, § 1, to define "principal
residence," and so we follow suit. That statute defines the term
as "the home where an owner . . . resides or intends to reside as
the primary dwelling; provided, however, that no person shall hold
concurrent rights in more than [one] principal residence." Mass.
Gen. Laws ch. 188, § 1 (emphasis added). Though "elusive concepts"
like "intent" are often properly left to be decided at trial,
summary judgment may nevertheless be appropriate where the party
opposing it "rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation." Vives v. Fajardo, 472
F.3d 19, 21 (1st Cir. 2007) (quoting Benoit v. Tech. Mfg. Corp.,
331 F.3d 166, 173 (1st Cir. 2003)).
Here, though Molly was living away from the Property
when the execution was recorded, the record reveals that Molly
intended to principally reside at the Property. Molly detailed
her decision to leave the Property in an affidavit submitted to
the Family Court. There, she explained that she fled the Property
after Will "suggested that [she] move out" and "berate[d]" her in
front of their children. Molly further stated that she felt held
"hostage" in the home and feared for her health should she remain.

- 30 -

She concluded this affidavit by stating that though she had "no
choice but to leave the marital home for the time being," she still
"expect[ed] to move back into the house that was given to [her and
Will] by [her] father and which stands next door to the home of
[her] parents."
The Trust does not dispute any of these facts. Nor does
it attempt to cast them in a light permitting a reasonable
inference that Molly did not intend to return to the Property.
Instead, it reiterates that Molly lived off the Property and points
to hazy testimony indicating that Molly "probably" updated her
address with the Registry of Motor Vehicles. But Molly explained
why she temporarily left the Property, and the Trust's reference
to Molly's probabilistic change in address is too "speculati[ve]"
and requires too many "improbable inferences" to create a genuine
dispute as to Molly's intent to return. Vives, 472 F.3d at 21
(quoting Benoit, 331 F.3d at 173). We therefore affirm the
district court's conclusion that the Property was Molly's
principal residence.
*
To briefly sum up our analysis so far, the district court
prematurely predicted a difficult and unsettled issue of
Massachusetts law to grant Molly summary judgment. We vacate that
portion of the decision so that the court can resolve the
potentially dispositive factual dispute relating to the validity

- 31 -

of the loan as to Molly. We also reject the Trust's contentions
that there are legal impediments to the court's undertaking of
this factual inquiry.
B. The Trust's Counterclaims
We now turn to the Trust's counterclaims. As a reminder,
the Trust seeks declarations (1) that Molly is jointly and
severally liable for the promissory note, and (2) that the
sheriff's sale can move forward. Our determination that there
remains a dispute of fact over whether the loan is valid as to
Molly precludes granting summary judgment for the Trust on either
claim. If the loan is invalid as to Molly, she obviously cannot
be held jointly and severally liable for it. And as we explained
earlier, such a finding would similarly prevent a sheriff's sale
of an interest in the Property based on the Default Suit judgment.
See supra Part III.A.2.a.
Nevertheless, loose ends remain. The district court
concluded that, even assuming the loan was valid with respect to
Molly, no reasonable factfinder could conclude that the funds were
spent on "necessaries." Cosel, 777 F. Supp. 3d at 26. This
determination entitled Molly to summary judgment on the Trust's
first counterclaim asserting Molly's joint and several liability
for the loan, even assuming its validity. See Mass. Gen. Laws
ch. 209, § 1 ("[B]oth spouses shall be liable jointly or severally

- 32 -

for debts incurred on account of necessaries furnished to either
spouse or to a member of their family.").
On appeal, the Trust asks us to reverse this
determination and find that the alleged loan was spent on
necessaries as a matter of law. In the alternative, it asks that
we find that there exists a dispute of material fact on that
question.
12
Before addressing this argument, however, we must
first evaluate Molly's threshold contention that we lack
jurisdiction over the counterclaims under the domestic relations
exception.
1. The Domestic Relations Exception
The domestic relations exception prevents federal courts
from hearing suits involving certain familial concerns, even where
the court might otherwise be able to exercise jurisdiction.
Ankenbrandt v. Richards, 504 U.S. 689, 701-03 (1992). Though the
exception purportedly derives from an arcane interpretation of
Judiciary Act of 1789, id. at 698-99 (discussing Barber v. Barber,
62 U.S. (21 How.) 582 (1858)), the Supreme Court has more recently
described it as a "judicially created doctrine[] stemming in large
measure from misty understandings of English legal history,"
Marshall v. Marshall, 547 U.S. 293, 299 (2006).

12
The Trust makes no additional challenges regarding its
second counterclaim, which is effectively the flipside of Molly's
claims. Because a trial is necessary to resolve Molly's claims,
it is also necessary to resolve the Trust's second counterclaim.

- 33 -

Courts construe the domestic relations exception
"narrow[ly]," so that only matters arising directly from "divorce,
alimony, and child custody decrees" fall outside federal courts'
jurisdiction. Marshall, 547 U.S. at 307-08 (quoting Ankenbrandt,
504 U.S. at 701, 703-04); see Dunn v. Cometa, 238 F.3d 38, 41 (1st
Cir. 2001). We have interpreted the domestic relations exception
to cover certain property distributions in a divorce as they may
be "inextricable" from alimony arrangements. Irish v. Irish, 842
F.3d 736, 741 (1st Cir. 2016). But courts have "only" applied the
doctrine in such cases "when the parties to the action were former
spouses." Crain v. Crain, 72 F.4th 269, 277 (8th Cir. 2023)
(citing, inter alia, Irish, 842 F.3d at 741-43); see 15A Moore's
Federal Practice § 102.91[3][a] & n.30.1 (3d ed. 2026) ("Nor does
[the domestic relations exception] usually apply to claims by or
against third parties."). That is because suits involving "third
parties" generally do not require issuing or modifying "a divorce,
alimony, or child custody decree." Matusow v. Trans-Cnty. Title
Agency, LLC, 545 F.3d 241, 247 (3d Cir. 2008).
In this case, that final point is crucial. Neither the
Trust, nor the beneficiaries of the Trust, nor the Wendt Parents,
as predecessors-in-interest to the judgment lien on the Property,
were parties to the divorce proceedings. Indeed, the Family Court
rejected the Wendt Parents' attempt to intervene in that case and
later expressly acknowledged that it did not have the authority to

- 34 -

adjudicate the interests of Will's creditors in the Property.
Properly understood, the Trust has brought claims as Will's
creditor, seeking to extend liability to Molly or, alternatively,
recover the alleged debt through a sheriff's sale. Such remedies
would not alter the divorce decree, which adjudicated rights and
distributed property between Molly and Will. The domestic
relations exception therefore does not bar the Trust's
counterclaims.
2. Necessaries
That brings us to the final issue on appeal -- whether
the district court correctly granted Molly summary judgment on the
Trust's first counterclaim asserting Molly's joint and several
liability by concluding as a matter of law that the purportedly
valid loan was not spent on "necessaries." The term necessaries
originated at common law, where it described "articles of utility"
suitable to maintain a wife according to her husband's "estate and
degree." Raynes v. Bennett, 114 Mass. 424, 428-29 (1874). The
concept of necessaries was not limited to "articles of food or
clothing required to sustain life." Jordan Marsh Co. v. Cohen,
136 N.E. 350, 351 (Mass. 1922). Rather, depending on the husband's
social status, the term could apply to furniture, household goods,
id., or even a fur coat, Jordan Marsh Co. v. Hedtler, 130 N.E. 78,
79 (Mass. 1921). Whether an expenditure amounted to a necessary
typically involved resolving several factual disputes, including

- 35 -

identifying the items purchased, defining the husband's station in
life, and determining whether the items purchased were
proportional to the husband's social status and means. See id.;
Cohen, 136 N.E. at 351; Raynes, 114 Mass. at 429; see also Moskow
v. Marshall, 171 N.E. 477, 478-79 (Mass. 1930) (applying the
necessaries concept to minors and explaining that whether a college
education was a necessary depended on the minor's "condition in
life" and other "circumstances").
When the Massachusetts legislature enacted Chapter 209,
it not only "attempt[ed] to equalize the rights of men and women"
who own property as tenants by the entirety, Coraccio, 612 N.E.2d
at 653-54, but also gave necessaries a gender-neutral cast. The
statute provides that "both spouses shall be liable jointly or
severally for debts incurred on account of necessaries furnished
to either spouse or to a member of their family." Mass. Gen. Laws
ch. 209, § 1. But Chapter 209 does not further define necessaries.
Nor are there SJC cases after the statute's enactment that
interpret the term.
The district court held that Molly and Will's
expenditures to renovate the Property were "high end betterments"
rather than necessaries. Cosel, 777 F. Supp. 3d at 26. The Trust
challenges this determination, asserting that there is, at least,
a material factual dispute as to whether the purported loan was
spent on necessaries. We agree.

- 36 -

In this case, there are at least three genuine disputes
of material fact on the necessaries issue.
13
First, the record is
unclear as to which aspects of the Property's development were
paid for using the Disputed Funds. The Wendt Parents provided
Molly and Will the Disputed Funds starting in February 2018.
During the renovation, Molly and Will built a driveway and septic
system and made other environmental renovations. It is not clear
when Molly and Will paid for each of the precise renovations. But
multiple payments to a contractor responsible for many of the
renovations (including the septic system) occurred after
February 2018. Moreover, Will's debit and credit transactions,
many of which appear to have been for construction materials and
services related to home and studio renovations, overwhelmingly
occurred following February 2018. Along similar lines, Molly and
Will purchased high-end appliances -- including a Viking stove and
a Sub-Zero refrigerator -- as part of the renovation, but it is
unclear when those purchases were made.
Second, Molly and Will disagree about their social
status at the time they made the renovations. Molly argues that,
at the time of the renovations, she was a schoolteacher, Will was
an aspiring photographer, and their combined income was less than

13
Because there are disputed issues of material fact on
the necessaries issue, we reject the Trust's alternative
contention that the Disputed Funds were, as a matter of law, spent
on necessaries.

- 37 -

$180,000. Will, by contrast, asserts that he and Molly should be
understood to have been "multimillionaire[s]" who received large
sums from the Wendt Parents and planned million-dollar renovations
to the Property using those funds.
14
And third, it is unclear how
a factfinder would measure Molly and Will's loan-based
expenditures against their social standing.
Facing these disputes, a reasonable factfinder could
conclude that most of the renovations were paid for after
February 2018, using the Disputed Funds; that Molly and Will were
properly understood at the time to be heirs to a fortune who had
already received millions in gifted funds; and that the renovations
were consistent with these means and station in life.
Alternatively, a factfinder could determine that Molly and Will
had the more modest means and station in life of a schoolteacher
and a photographer, albeit with the benefit of a renovated home
resulting from a one-time gift from wealthy relatives.
Given that there remain genuine disputes of material
fact regarding whether all or part of the purported loan was spent
on necessaries, we hold that the district court wrongly granted
Molly summary judgment on the Trust's first counterclaim based on

14
The parties also dispute how a couple's income should be
measured when determining whether certain expenditures are
necessaries. The Trust argues that a couple's income should be
measured jointly and Molly argues that the only relevant income is
that of the nondebtor spouse. We do not express a view on this
issue.

- 38 -

its necessaries conclusion. Moreover, we note it is conceivable
that a finding that the loan was valid as to Molly and spent on
necessaries could affect whether the Property may be subject to a
sheriff's sale. But we express no opinion on this question.
Should the necessaries issue recur later in the proceedings, and
once further factual determinations have been made, it may be
appropriate to certify legal questions relevant to the issue of
whether Molly and Will's expenditures were necessaries under
Chapter 209 and what effect that finding might have on the Trust's
ability to pursue a sheriff's sale.
C. Summary and Next Steps
This opinion covers many disparate areas of law.
Accordingly, we summarize our holdings.
First, we hold that the district court prematurely
resolved an unsettled and complicated question of Massachusetts
law regarding the interaction between a creditor's interest in a
property, divorce, and a tenancy by the entirety. We therefore
vacate that portion of the summary judgment order and remand for
factual findings as to whether the purported loan is valid with
respect to Molly.
Second, we hold that neither Rule 60(b) nor related
preclusion considerations prevent Molly from challenging the loan
insofar as it affects her interests. Relatedly, we conclude that

- 39 -

there is a genuine dispute of material fact as to whether the loan
is valid with respect to Molly.
Third, we affirm on alternative grounds the district
court's determination that the Wendt Parents did not validly
complete an execution against Will's interest in the Property prior
to the divorce.
Fourth, we hold the domestic relations exception does
not prevent the district court from adjudicating the Trust's
counterclaims.
And finally, we hold that there are disputes of material
fact as to whether the purported loan (assuming its validity as to
Molly) was spent on necessaries.
On remand, the district court should conduct further
proceedings to determine whether the loan is valid with respect to
Molly and (if required) resolve the factual disputes related to
the necessaries issue. If the loan is invalid as to Molly, then
the case is over, and Molly is entitled to judgment on all claims
and counterclaims. If, however, the loan is valid as to Molly,
then the district court should conduct further proceedings to
determine whether all or part of the loan was spent on necessaries,
resolving or certifying to the SJC any unsettled legal questions
that must be answered to make that determination. Only if the
necessaries issue does not resolve the Trust's asserted interest
in the Property should the court decide, or certify to the SJC,

- 40 -

the legal question concerning the effect of Will and Molly's
divorce on that interest.
IV. Conclusion
For the foregoing reasons, we affirm the district
court's order in part, reverse it in part, and vacate it in part.
We remand the case for further proceedings consistent with this
opinion.