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March 16, 2026 Get Citation Alerts Download PDF Add Note

Isaac Saias v. Marianna Kantor.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0416

• Precedential Status: Non-Precedential

• Opinion

• Authorities (8)

• Cited By (0)

• Summaries (0)

• Similar Cases (3.8K)

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Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-416

ISAAC SAIAS

vs.

MARIANNA KANTOR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff filed a complaint in the Superior Court

against the defendant, his former wife, 1 raising numerous claims

that all arise from the parties' 2005 divorce. On the wife's

motion for judgment on the pleadings, a judge concluded that the

Superior Court lacked subject matter jurisdiction over the

husband's claims and that the claims should be dismissed based

on the pendency of a prior action. The husband appeals from the

judgment and from the judge's order denying his motion to

"amend" the judgment pursuant to Mass. R. Civ. P. 59 (e), 365

1For clarity we will refer to the plaintiff as "the
husband" and the defendant as "the wife."
Mass. 827 (1974), which the judge construed as a motion for

reconsideration. We affirm.

Background. We set out the essential factual allegations

of the complaint, which we accept as true for purposes of this

appeal. See Jarosz v. Palmer, 436 Mass. 526, 529-530 (2002).

The parties divorced by a judgment of divorce nisi that

entered in the Probate and Family Court on December 29, 2005,

and was amended twice in March 2006. The divorce judgment

awarded each party a fifty percent interest in the marital home

(property), while giving the wife the sole right to use and

occupy the property, and collect any rents received therefrom,

until it was sold. The divorce judgment required that the

property be sold when the parties' children were all emancipated

or if the wife remarried, whichever occurred earlier.

Alternatively, the wife could buy out the husband's interest in

the property at any time, at a price corresponding to the

property's fair market value at the time of the buyout.

In 2018 or earlier, the wife remarried, but she did not

tell the husband or sell the property. In March 2021, about one

year after the youngest of the parties' children "reached

majority," the wife's attorney informed the husband that the

wife intended to put the property on the market. A few weeks

later, the wife filed a contempt action in the Probate and

Family Court, alleging that the husband was impeding the sale of

2
the property and requesting the appointment of a special master.

In November 2021 a Probate and Family Court judge appointed a

special master and empowered him to take the necessary steps to

facilitate the sale.

Each party then obtained an appraisal of the property. The

husband's appraisal valued the property at between $2,000,000

and $2,200,000, whereas the wife's appraisal valued it at

$1,680,000. As of the January 2024 filing of the husband's

complaint in this case, the property had not been sold.

Discussion. We review a judge's allowance of a motion for

judgment on the pleadings de novo. See Wheatley v.

Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 600

(2010), S.C., 465 Mass. 297 (2013). In our review we accept all

of the factual allegations of the complaint as true and may also

consider "facts of which judicial notice can be taken," which

include "the court's records in a related action." Jarosz, 436

Mass. at 529-530.

Based on the factual allegations of the complaint and the

records from the Probate and Family Court proceedings, we

conclude that the Superior Court lacked subject matter

jurisdiction over the husband's claims because, at their core,

3
they arise from and seek to enforce the divorce judgment. 2 Only

the Probate and Family Court has jurisdiction to enforce the

divorce judgment. See Hills v. Shearer, 355 Mass. 405, 407

(1969). Indeed, on appeal, the husband concedes that five of

his claims cannot survive for that reason. 3 We will therefore

confine our discussion to the remaining claims, Counts II, III,

and IV.

Count II alleges that the wife unjustly enriched herself by

retaining rental income from the property in violation of the

divorce judgment. 4 In particular, the claim is that the wife

improperly retained the rental income she received after she

remarried and after the youngest child was emancipated, in

violation of her duty under the divorce judgment to vacate and

sell the property upon either of those events. We agree with

the judge that this claim cannot plausibly be characterized as

2 We therefore need not reach the wife's alternative
argument that the complaint was correctly dismissed based on the
pendency of the Probate and Family Court proceedings.

3 Even absent the concession, we would conclude that those
five claims were correctly dismissed for the reasons set out in
the judge's detailed memorandum of decision.

4 The husband does not address Count II in his brief and has
thus waived any argument as to that claim. See Mass.
R. A. P. 16 (a) (9), as appearing in 481 Mass. 1628 (2019). In
a status report filed after briefing was completed, however, the
husband states that he is narrowing the issues on appeal to the
dismissal of Counts II, III, and IV. For completeness we will
exercise our discretion to address Count II, notwithstanding the
husband's waiver.

4
anything but a claim to enforce the divorce judgment. It thus

falls within the exclusive jurisdiction of the Probate and

Family Court. See Hills, 355 Mass. at 407. 5

Count III alleges that the wife fraudulently generated an

undervalued appraisal of the property in violation of the

divorce judgment's requirement that the buyout price must

correspond to the property's fair market value. The husband

argues that this claim should survive because it "sounds in

tort" and tort claims cannot be brought in the Probate and

Family Court. It is true that "the Probate [and Family] Court

does not have jurisdiction to hear tort actions and award

damages." Heacock v. Heacock, 402 Mass. 21, 24 (1988). But

Count III, despite its label, is in substance a claim to enforce

the divorce judgment because it goes to how a marital asset

should be distributed according to the divorce judgment. Thus,

unlike in Heacock, the claim can, and must, be brought in the

Probate and Family Court. Cf. Heacock, supra at 21, 24-25.

5 In his post-briefing status report, the husband alleges
that Count II should survive because "the Probate Court process
concluded without providing a remedy for, or even addressing,
the unjust enrichment injury." Putting aside that the husband
is referring to events that postdate the judgment in this case
and are therefore not part of the record on appeal, his
allegation does not change the essential nature of Count II,
which is to enforce the divorce judgment. To the extent the
husband is dissatisfied with the result in the Probate and
Family Court proceedings, his remedy is to pursue further relief
in those proceedings.

5
Similarly, Count IV, though labeled as a claim for

"[b]reach of constructive contract," is in substance a claim to

enforce the divorce judgment. Count IV alleges that the wife

breached the parties' agreement "to sell the property under a

special master process" by "not putting the property up for

sale." But as the allegations of the complaint make clear,

there was no such agreement; rather, a Probate and Family Court

judge appointed the special master to facilitate the sale in

accordance with the divorce judgment. Thus, because the

complaint does not plausibly allege the existence of a contract,

we are unpersuaded by the husband's argument that Count IV can

survive because the Probate and Family Court does not have

jurisdiction over contract claims. See Conant v. Sherwin L.

Kantrovitz, P.C., 29 Mass. App. Ct. 998, 999 (1990).

Finally, the judge did not abuse his discretion in denying

the husband's motion to "amend" the judgment. The judge

properly determined that, despite its title, the motion did not

seek to amend the judgment but to "undo [it] altogether." The

judge was thus correct to treat the motion as one for

reconsideration, which must be based on "changed circumstances,"

"a development of relevant law," or "a particular and

demonstrable error in the original ruling or decision." Audubon

Hill S. Condominium Ass'n v. Community Ass'n Underwriters of

Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). The husband's

6
motion did not identify any changed circumstances or relevant

development in the law and, as the judge found, mostly rehashed

arguments that the judge already rejected, rather than

identifying a demonstrable error in his decision. We discern no

abuse of the judge's discretion. See id. at 470-471. 6

Judgment affirmed.

Order dated February 4, 2025,
denying postjudgment motion
for relief affirmed.

By the Court (Shin, Walsh &
Allen, JJ. 7),

Clerk

Entered: March 16, 2026.

6 To the extent we have not addressed any of the husband's
specific arguments, we see nothing in them to warrant reversing
the judgment.

7 The panelists are listed in order of seniority.

7