Opinion
C.A. No. WC08-0564
Filed: February 12, 2009
DECISION
Before this Court is the motion of intervenor Glenn Ahlborg ("Glenn") to dismiss the complaint of Plaintiff Susan Ahlborg ("Susan") and their minor children Olivia Ahlborg ("Olivia") and Abigail Ahlborg ("Abigail") (collectively, "Plaintiffs"). Plaintiffs seek a restraining order barring Defendants Vincent Mesolella and Donna Mesolella (collectively "Defendants") from having any contact with Olivia and Abigail. Glenn argues that Plaintiffs' claims were already fully adjudicated in a Rhode Island Family Court case, and that the complaint is therefore barred by res judicata and collateral estoppel. Plaintiffs have objected to Glenn's motion arguing that res judicata and collateral estoppel do not apply here because there is no identity of issues or parties between the Family Court action and the present action. This Court originally issued an oral decision from the bench indicating that the motion would be denied. Upon reconsideration, this Court holds that Plaintiffs' action is barred by collateral estoppel, and grants the motion to dismiss. Jurisdiction is pursuant to G.L. 1956 § 8-2-13.
I Facts and Travel
The facts in this case are set forth in great detail in a written decision of the Family Court. See Glenn R. Ahlborg v. Susan Ahlborg, P2004-0673, Decision, July 10, 2008 (hereinafter "Decision"). The relevant facts begin in November 2004, when Susan and Glenn entered into a marital settlement agreement whereby Susan was to retain physical placement of Olivia and Abigail while Glenn secured reasonable rights of visitation. See id. at 15. A final divorce decree was entered on July 11, 2005 pursuant to which Susan and Glenn were granted joint custody according to the terms of the settlement agreement. Id.
Also in November 2004, Susan began making allegations that Defendants, who are Glenn's friends and godparents to one of the girls, had sexually abused Olivia. Decision, p. 5. From 2004 through 2006, Susan periodically took Olivia for various physical and psychological evaluations relating to these allegations. Id. at 5. No evaluation ever conclusively revealed any evidence of sexual abuse with the exception of statements by Olivia which may have been coerced by Susan. See id. at 5-15, 26-27 (e.g. "[T]he child says she spoke of Uncle Vinnie touching her but that was not real — it was fake and she said it because her Mommy told her that unless she did, they would have to come back for ten times more and she did not want that.") Id. at 13.
On March 1, 2006, Glenn filed a motion in Family Court seeking a change to Olivia's and Abigail's custody and physical placement.Decision, p. 2. Following Glenn's motion, Susan "plunge[d] her children into a soap opera worthy of daytime television." Id. at 35. On June 14, 2006 Susan slammed a door on one of the children and punched Glenn repeatedly in the head, leading to her eventual conviction on multiple counts of domestic assault. Id. at 2-3, 31. On other occasions, Susan engaged in erratic behavior including showing up late and possibly drunk to pick up the children from school and calling in a frivolous Amber Alert when the children were with Glenn. Id. at 4, 23, 31-32. In fact, Susan frequently called government agencies ranging from the police to DCYF to the FBI, and used these calls to threaten Glenn. Id. at 14, 28, 31-32, 34, 36.
Following the June 14, 2006, domestic assault incident described above, Glenn filed an emergency motion for change of placement of Olivia and Abigail. Decision, p. 4. At this hearing, Susan raised allegations that Defendants had molested Olivia. Id. at 5. The Family Court entered an order awarding temporary custody of the children to Glenn but providing that Glenn "would not have the minor children in the presence of the Mesolellas until further order of the court." Id. at 4-5. Glenn has also indicated that at some point during Susan's and Glenn's legal battle for physical placement of the children Susan requested a restraining order enjoining the Mesolellas from having contact with the children through Glenn.
On July 10, 2008, the Family Court issued a written decision awarding physical placement of Olivia and Abigail to Glenn on a permanent basis.Decision, p. 40. As to Susan's allegations that Defendants had molested Olivia, the Family Court found "that any decision regarding the child Olivia as it relates to her contact with Vincent and Donna Mesolella rests with the child's therapist . . ." and "suggest[ed] that both parents . . . adopt any and all recommendations made by the therapist."Id. at 15.
On July 29, 2008, Susan filed a complaint with this Court individually and on behalf of the minor children seeking temporary and permanent restraining orders barring Defendants from any contact with Olivia and Abigail. On August 4, 2008, Glenn filed a motion to intervene, and a motion to dismiss the complaint. On August 5, 2008, the Court denied Plaintiffs' request for a temporary restraining order, granted Glenn's motion to intervene, and denied the motion to dismiss without prejudice.
On August 22, 2008, Defendants answered the Complaint, denying all allegations of sexual misconduct or abuse and asserting a counterclaim for malicious prosecution. Also, on August 22, 2008, Glenn filed another motion to dismiss arguing that Plaintiffs were barred by res judicata and collateral estoppel from asserting their current claim, having pressed and lost an identical request for relief in the Rhode Island Family Court. Plaintiffs objected on the ground that there is no identity of issues or parties between the Family Court action and the present action.
II Standard of Review
On a motion to dismiss, this Court "assumes the allegations contained in the complaint to be true and views the facts in the light most favorable to the plaintiffs." Giuliano v. Pastina, Jr., 793 A.2d 1035, 1036-37 (R.I. 2002) (quoting Martin v. Howard, 784 A.2d 291, 297-98 (R.I. 2001)). This Court will not grant a motion to dismiss "unless it appears to a certainty that [the plaintiffs] will not be entitled to relief under any set of fact which might be proved in support of [their] claim." Id. at 1037 (quoting Bragg v. Warwick Shoppers World, Inc., 227 A.2d 582, 584 (R.I. 1967)).
III Analysis A. Res Judicata
Glenn first asserts that Plaintiffs cannot prevail in this action because their claim is barred by res judicata. The Rhode Island Supreme Court has provided that res judicata "serves as an 'absolute bar to a second cause of action where there exists identity of parties, identity of issues, and finality of judgment in an earlier action.'" ElGabri v. Lekas, 681 A.2d 271, 275 (R.I. 1996) (quoting Gaudreau v. Blasbalg, 618 A.2d 1272, 1275 (R.I. 1993)). The doctrine of res judicata extends to bar re-litigation of "all or any part of the transaction, or series of connected transactions, out of which the action arose."ElGabri, 681 A.2d at 276 (quoting 1 Restatement (Second)Judgments § 24). It is uncontested that Defendants were not parties to the Family Court action. The doctrine of res judicata, or claim preclusion, is therefore inapplicable here.
B. Collateral Estoppel
Glenn asserts in the alternative that the present action is precluded because Plaintiffs' complaint raises issues barred by collateral estoppel. "Under the doctrine of collateral estoppel, an issue of ultimate fact that has been actually litigated and determined cannot be re-litigated between the same parties or their privies in future proceedings." Foster-Glocester Regional School Committee v. Board of Review, 854 A.2d 1008, 1014 (R.I. 2004). In Lee v. Rhode Island Council 94, 796 A.2d 1080, 1084 (R.I. 2002), the Rhode Island Supreme Court expressed the test for collateral estoppel as follows:
collateral estoppel is applicable when there is an identity of issues[,] the prior proceeding . . . [has] resulted in a final judgment on the merits[,] and the party against whom the collateral estoppel is sought must be the same as or in privity with the party in the prior proceeding. (internal quotation removed).
Collateral estoppel, or issue preclusion, will therefore apply to bar Plaintiffs' present request for a restraining order if: (1) the issue of contact between the children and Defendants was actually litigated in the Family Court action, (2) the Family Court issued a final judgment on the issue of such contact, and (3) Plaintiffs were parties, in privity with parties to the prior action. See Lee, 796 A.2d at 1084.
1. The issue of contact between the children and Defendants was fully litigated before the Family Court.
Plaintiffs argue that the only issues decided in the first action were: "Whether an award of joint custody is in the best interest of Olivia and Abigail Ahlborg and whether the plaintiff father should be awarded physical placement of these two children." Pl. Memo, p. 4 (quoting Decision, p. 15). In contrast, Glenn argues that "much trial time was devoted to the issue" of contact between the children and Defendant in the Family Court action, and that this issue was therefore fully litigated. Decision, p. 15.
The issue of contact between Defendants and the children was thoroughly addressed before the Family Court. Glenn has indicated that in the Family Court action Susan requested an order enjoining and restraining Glenn from having the children in the presence of Defendants. See Def. Memo., p. 2 (unnumbered). No such request is mentioned in the decision of the Family Court, but the decision does indicate that "[t]he possibility that Mr. and Mrs. Mesolella sexually abused Olivia is a recurring suggestion in this case."Decision, p. 5. "Recurring suggestion" is an understatement — in fact, the next ten pages of the decision address the plenitude of evidence adduced on this issue. See Decision, pp. 5-15. Review of the Decision leads to the inevitable conclusion that the parties thoroughly litigated the very issue which Susan now argues was not properly raised before the Family Court. The amount of trial time spent on the issue and the fact that the Family Court Justice issued a temporary order restraining Glenn from allowing contact between Defendants and the children suggest that the Family Court "deem[ed] the . . . pleading to have been amended [to include a claim for a restraining order] . . . in light of the . . . evidence introduced at the trial." See Women's Development Corp. v. City of Central Falls, 764 A.2d 151, 161-62 (R.I. 2001); see also Cofone v. Narragansett Racing Ass'n, 103 R.I. 345, 350, 237 A.2d 717, 720 (1968) ("issues tried by express or implied consent, even though not raised by the pleadings, should be treated in all respects as if they had been pleaded even in the absence of amendment") (construing Super. R. Civ. P. 15(b), which is identical to Rule 15(b) of the Rules of Procedure for Domestic Relations). Therefore, regardless of whether Susan ever formally requested an order restraining contact between Defendants and the children, the issue was nevertheless squarely before the Family Court, and squarely addressed.
Moreover, the issue of contact between Defendants and the children was part of the Family Court's primary consideration: Glenn's motion to change physical placement of the children. On a motion to change physical placement, "the 'polestar for the trial justice's guidance' is what, in the circumstances of the particular case, is best for the children's welfare." Westlake v. Westlake, 874 A.2d 200, 202 (R.I. 2005) (quoting Kenney v. Hickey, 486 A.2d 1079, 1082 (R.I. 1985)). Indeed, "[f]ew principles are more firmly established in the law . . . than that in awarding custody, placement, and visitation rights, the 'paramount consideration' is the best interests of the child." Id. at 203 (quotingDupre v. Dupre, 857 A.2d 242, 251-52 (R.I. 2004)). In determining the best interests of the child, one of the factors for consideration is "[t]he interaction and interrelationship of the child with the child's parent or parents, the child's siblings, and any other person who may significantly affect the child's best interest." Pettinato v. Pettinato, 582 A.2d 909, 913 (R.I. 1990) (emphasis added). In her objection to Glenn's motion for change of placement, Susan pressed the argument that interaction with Defendants would significantly affect the children's best interests. Even if the Family Court did not amend the pleadings to conform to the evidence, therefore, the issue of contact between Defendants and the children was also raised as a part of the Family Court's underlying determination of the children's best interests.
Finally, Plaintiffs also argue that there could have been no identity of issues because the Family Court did not have jurisdiction to issue the relief sought in the present action. If the Family Court did not have jurisdiction over the issue presently before this Court, it follows that there can be no identity between any issue decided by the Family Court and the issue presently before this Court. However, Glenn alleges that Susan requested an order enjoining and restraining him from having the children in the presence of Defendants. See Def. Memo., p. 2 (unnumbered). The Family Court does have jurisdiction to issue conditional orders, and could therefore have granted physical placement of the children to Glenn, conditioned on his preventing contact between the children and Defendants. See, e.g., Goldstein v. Goldstein, 109 R.I. 428, 430, 286 A.2d 589, 591 (1972). In fact, the Family Court issued just such an order on a temporary basis. See Decision, p. 5. A conditional order would have squarely addressed the issue of contact between the children and Defendants. Accordingly, Plaintiffs' contention that the Family Court was without jurisdiction over the present issue is without merit.
Because the parties actually litigated a claim for a restraining order against Defendants, because the issue of contact between Defendants and the children was before the Family Court on Glenn's motion for change of physical placement, and because the Family Court had jurisdiction to issue a conditional order restraining contact between Defendants and the children, the present action is founded on an issue that was fully addressed by the Family Court — whether Defendants should be restrained from contact with Olivia and Abigail. Accordingly, the first element of collateral estoppel is satisfied.
2. The Family Court issued a final judgment on the merits of the issue of contact between the children and Defendants.
Both Susan's motion for a restraining order and Glenn's motion for change of placement — the claims which gave rise to the issue of contact between Defendants and the children — resulted in final judgments of the Family Court.
First, the parties actually litigated a claim for a restraining order against Defendants. The Family Court issued a temporary order barring Glenn from allowing any contact between Defendants and the children.See Decision, p. 5. The court then abrogated this temporary order when its final decision issued. In its decision, the Family Court expressly found "that any decision regarding the child Olivia as it relates to her contact with Vincent and Donna Mesolella rests with the child's therapist. . . ." Decision, p. 15. This finding disposed of the restraining order issue, and therefore amounted to a final judgment denying such an order.
Second, the issue of contact between Defendants and the children was before the Family Court on Glenn's motion for change of physical placement. The Family Court considered and rejected Susan's arguments that placement with Glenn would be detrimental to the children because Glenn allows contact between Defendants and the children. In fact, the Family Court held that the "Motion to Modify Placement and Custody . . . must be granted [because t]he constant melodrama that is Ms. Ahlborg subjects her children to unnecessary emotional stress and is not in their best interest." Decision, p. 40. This holding constitutes a final judgment as to all factual issues on which it was founded, including the issue of contact between Defendants and the children.
The Family Court, therefore, issued two separate final judgments on the issue of contact between the children and Defendants. The first judgment denied Susan's requested restraining order, and the second judgment granted Glenn's motion for change of placement. Accordingly, the second element of collateral estoppel is satisfied.
3. Plaintiffs were parties or in privity with a party to the Family Court action.
Plaintiffs argue that their claim is not precluded because Defendants were not party to the previous action before the Family Court. However, Defendants need not have been party to the previous action for collateral estoppel to apply here. Collateral estoppel is appropriate where "the party against whom the collateral estoppel is sought [is] the same as or in privity with the party in the prior proceeding."Lee, 796 A.2d at 1084. The parties against whom collateral estoppel is being asserted here are Plaintiffs Susan, Olivia, and Abigail, all of whom were represented before the Family Court. Defendants' status in the Family Court action is, therefore, irrelevant.
It is uncontested that Susan was a party to the previous action. As to Olivia and Abigail, however, Rhode Island law is unclear as to whether a child or a child's guardian ad litem is a party to a divorce proceeding. The Rhode Island Supreme Court has never directly addressed the question, but has implied that a guardian ad litem is a party to divorce proceedings. See In re Joseph, 431 A.2d 432, 433 (R.I. 1981) (referring to "the parties, including the guardian ad litem who was appointed by the trial justice of the Family Court"). This suggestion comports with G.L. 1956 § 15-5-16.2(c)(1)(viii), which provides that an appointed guardian ad litem in a divorce action "should appear at all proceedings in family court that affect the interests of the child. . . ." "Appear" is a term of art meaning "[to come] into court as a party or interested person, or as a lawyer on behalf of a party or interested person." Black's Law Dictionary, 7th Ed. The most logical conclusion is, therefore, that a guardian ad litem appointed in a divorce action is a party to that action.
For purposes of collateral estoppel, it is generally recognized that a child is in privity with that child's appointed guardian ad litem. A minor child is therefore barred from re-litigating issues that have been addressed in a previous action wherein an appointed guardian ad litem represented the child's interests. See Restatement (Second)Judgments § 41, cmt. c.; see also Richards v. Jefferson County, Ala., 517 U.S. 793, 798, 116 S.Ct. 1761, 1766 (1996) ("a judgment that is binding on a guardian . . . may also bind the ward") (citing Restatement (Second) Judgments). This rule is a specific application of the general rule that "[a] person who is not a party to an action but who is represented by a party is bound by . . . a judgment as if he were a party." Restatement (Second) Judgments § 41.
Here, there is no question that Olivia and Abigail were thoroughly represented by a guardian ad litem. The Family Court decision indicates that the children's guardian ad litem "spent many hours gathering facts for the court" and "submitted well over one hundred pages of interview, reports, school and medical records. . . ." Decision, pp. 38, 40. As to the issue of contact between Defendants and the children, the guardian ad litem was of the opinion that Olivia had been coached to fabricate any accusations against Defendants. Id. at 39. Accordingly, the guardian ad litem recommended that Glenn be awarded full custody of the children. Id. at 39-40. Because the guardian ad litem was a party in the divorce action, and because Olivia and Abigail were represented by the guardian ad litem in that action, Olivia and Abigail are bound by the judgment of the Family Court as if they had also been parties in the prior action.
Even if the guardian ad litem was not a party to the divorce action, the children's interests were nevertheless so thoroughly represented that the children are barred from pursuing the present claim. InZuckerman v. Tartarian, 110 R.I. 190, 291 A.2d 421 (1972), the court provided that "there is a class of cases in which the doctrine of collateral estoppel should apply as a matter of sound policy and without regard to the existence of privity." Id. at 195, 424. For this class of cases, "the pertinent inquiry [is] whether estoppel should be applied . . . where the parties were nominally not the same but where their interest and liability as to an ultimate, identical and decisive issue were so necessarily and inseparably connected as to make them virtually parties to the earlier proceeding." Id. Other jurisdictions have held that the appearance of a guardian ad litem on behalf of a child in a divorce proceeding creates a "virtual party" status. In the state of Missouri, for example, "[w]hen a child's interest is represented by a guardian ad litem at a prior proceeding, collateral estoppel bars a child from relitigating the paternity issue." Missouri ex rel. Miller v. Miller, 859 S.W.2d 153, 154 (Mo.Ct.App. 1993). Accordingly, where, as here, a child's interests are fully represented by a guardian ad litem in a prior proceeding, that child is estopped from re-litigating issues adjudicated in that prior proceeding.
Susan was a named party in the Family Court action. Olivia and Abigail were not named parties in the Family Court action, but their interests were fully represented by a guardian ad litem in that action. Accordingly, all Plaintiffs satisfy the "identity of parties" element of collateral estoppel.
IV Conclusion
Res judicata does not apply where, as here, there is no absolute identity of parties. Collateral estoppel bars Plaintiffs' claim for a restraining order against Defendants, because the record reveals identity of issues between the Family Court action and the present action, because there are final judgments of the Family Court disposing of the present issue, and because all Plaintiffs were represented in the Family Court action. This Court therefore grants intervenor Glenn's motion to dismiss the Plaintiffs' complaint.
It should be noted that Plaintiffs are not forever barred from court review of issues similar to those raised here. If Susan can show a material change of circumstances, then Family Court is the appropriate venue for reconsidering custody and placement of Olivia and Abigail as well as what contact, if any, should take place between the minor children and the Mesolellas. See Westlake v. Westlake, 874 A.2d 200, 202 (R.I. 2005). As discussed above, by virtue of its powers over child custody and placement, the Family Court can effectively restrain contact between Defendants and the children by controlling the actions of Glenn. An order to that effect, however, would necessarily be predicated on new evidence demonstrating a material change in circumstances since the issuance of the Family Court's last order. Id.
The motion to dismiss is granted. Counsel for Defendants shall submit an order within ten days.