FN2. An explanation of terminology is in order. "RES JUDICATA" is the generic term for various doctrines by which a judgment in one action has a binding effect in another. It comprises "claim preclusion" and "issue preclusion." "CLAIM PRECLUSION" is the modern term for the doctrines traditionally known as "merger" and "bar" and prohibits the maintenance of an action based on the same claim that was the subject of an earlier action between the same parties or their privies.


~NOTE~
Claim preclusion requires that there have been
a final, valid judgment in the earlier action.

"ISSUE PRECLUSION" is the modern term for the doctrine traditionally known as "collateral estoppel," and prevents relitigation of an issue determined in an earlier action where the same issue arises in a later action, based on a different claim, between the same parties or their privies. See generally, 18 C.A. Wright, A.R. Miller, & E.H. Cooper, Federal Practice and Procedure sec. 4402 (1981 & Supp.1987); 1B Moore's Federal Practice par. 0.401, at 4-5 (1984). We use the terms "claim preclusion" and "issue preclusion" throughout this opinion. Similarly, we use the modern term "CLAIM" in lieu of the traditional term "cause of action."

The plaintiff assigns as error certain alleged procedural irregularities.
Because our resolution of the substantive issues in this case requires reversal
of the judgment below, we do not address these procedural issues.
1. Claim preclusion. The doctrine of claim preclusion makes a valid, final judgment [520 N.E.2d 153] conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in the action. See Franklin v. North Weymouth Coop. Bank, 283 Mass. 275, 279-280, 186 N.E. 641 (1933), and cases cited. This is so even though the claimant is prepared in a second action to present different evidence or legal theories to support his claim, or seeks different remedies. See Mackintosh v. Chambers, 285 Mass. 594, 596-597, 190 N.E. 38 (1934), and cases [402 Mass. 24] cited; Restatement (Second) of Judgments sec. 25 (1980). The doctrine is a ramification of the policy considerations that underlie the rule against splitting a cause of action, and is "based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit." Foster v. Evans, 384 Mass. 687, 696 n. 10, 429 N.E.2d 995 (1981), quoting A. Vestal, Res
Judicata/Preclusion V-401 (1969). See Franklin, supra 283 Mass. at 279, 186 N.E. 641; E. Cleary, Res Judicata Reexamined, 57 Yale L.J. 339, 342-344 (1948).
As such, it applies only where both actions were based on the same claim.
Franklin, supra at 279-280, 186 N.E. 641.

[1] A tort action is not based on the same underlying claim as an action for
divorce. Accord, Goldman v. Wexler, 122 Mich.App. 744, 748, 333 N.W.2d 121
(1983); Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909, 911-912 (1987); Lord v. Shaw, 665 P.2d 1288, 1291 (Utah 1983). The purpose of a tort action is to
redress a legal wrong in damages; that of a divorce action is to sever the marital relationship between the parties, and, where appropriate, to fix the parties' respective rights and obligations with regard to alimony and support, and to divide the marital estate. Although a judge in awarding alimony and dividing marital property must consider, among other things, the conduct of the parties during the marriage, G.L. c. 208, sec. 34 (1986 ed.), the purposes for which these awards are made do not include compensating a party in damages for injuries suffered. The purpose of an award of alimony is to provide economic support to a dependent spouse, Gottsegen v. Gottsegen, 397 Mass. 617, 623, 492 N.E.2d 1133 (1986); that of the division of marital property is to recognize and equitably recompense the parties' respective contributions to the marital partnership, Hay v. Cloutier, 389 Mass. 248, 254, 449 N.E.2d 361 (1983). The plaintiff could not have recovered damages for the tort in the divorce action, as the Probate Court does not have jurisdiction to hear tort actions and award damages. G.L. c. 215, secs. 3, 6 (1986 ed.). See, e.g., Prahl v. Prahl, 335 Mass. 483, 140 N.E.2d 480 (1957).

The policy considerations commonly advanced to justify the doctrine of claim
preclusion are not implicated in the circumstances of this case. Maintenance of
the tort claim will not subject the defendant and the courts to the [402 Mass.
25] type of piecemeal litigation that the doctrine of claim preclusion seeks to
prevent. As such, nothing in the doctrine or in the policy considerations
underlying it warrants its application in the circumstances of this case.

[2] 2. Issue preclusion. To defend successfully on the ground of issue
preclusion, the defendant must establish that the issue of fact sought to be
foreclosed actually was litigated and determined in a prior action between the
parties or their privies, and that the determination was essential to the decision in the prior action. See, e.g., Cousineau v. Laramee, 388 Mass. 859, 863 n. 4, 448 N.E.2d 756 (1983), and authorities cited. Because a judge in awarding alimony and dividing marital property must consider a number of factors, G.L. c. 208, sec. 34, and the judge who presided over the Heacocks' divorce action did not make any findings of fact to support his judgment, we cannot say that the judge necessarily resolved any issue relating to the defendant's assault of the plaintiff. See Davidson v. Davidson, 19 Mass.App.Ct. 364, 367, 474 N.E.2d 1137 (1985) ("G.L. c. 208, sec. 34, issues are not 'necessarily involved' in a judgment of divorce"). Accordingly, the doctrine of issue preclusion does not apply.



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Note added at 2004-03-09 16:12:38 (GMT)
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La doctrina de RES JUDICATA o cosa juzgada se refiere a una sentencia firme donde no cabe alegaciones ni presentación de pruebas nuevas por la misma causa