Zev D. Nijensohn v. Michael J. Ring, Esq. & Highland Realty Trust, LLC

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.
2022 VT 16No. 2021-159
Zev D. Nijensohn Supreme Court
On Appeal from
v. Superior Court, Lamoille Unit,
Civil Division
Michael J. Ring, Esq. & Highland Realty Trust, LLC December Term, 2021
Mary Miles Teachout, J.
Russell D. Barr and Chandler W. Matson of Barr Law Group, Stowe, for Plaintiff-Appellant.
William F. Grigas of Stackpole & French Law Offices, Stowe, for Defendant-Appellee Ring.
Christopher D. Roy of Downs Rachlin Martin PLLC, Burlington, for Defendant-Appellee
Highland Realty Trust LLC.
PRESENT: Reiber, C.J., Eaton, Carroll and Cohen, JJ., and Howard, Supr. J. (Ret.),
Specially Assigned
¶ 1. REIBER, C.J. This appeal involves a dispute over the sale of real property in
Vermont arising out of an ongoing divorce proceeding in Massachusetts. In dividing the divorcing
parties’ assets, the Massachusetts court ordered a special master to sell the Vermont property.
After the sale, plaintiff filed an action in the civil division of Vermont superior court to rescind the
sale and quiet title to the property. Applying the doctrine of comity, the civil division dismissed
his action, deferring to the ongoing proceeding in Massachusetts. Plaintiff appeals, arguing that
the civil division should not have dismissed his suit on comity grounds because the Massachusetts
court lacked jurisdiction to order the special master to sell the property. We conclude that the civil
division acted within its discretion and affirm.
¶ 2. We begin by recounting the procedural history of the Massachusetts divorce
proceeding and related actions filed in Vermont. In 2017, plaintiff’s wife filed for divorce in
Massachusetts. The couple owned a second home in Stowe, Vermont. In 2018, the Massachusetts
Probate and Family Court appointed a special master, Attorney Michael Ring, and authorized him
to “perform all acts necessary to facilitate the listing and sale” of the property. The Massachusetts
court ordered each party to fully cooperate with the sale process suggested by Attorney Ring.
¶ 3. After the divorce trial, in February 2019, the Massachusetts family court ordered
Attorney Ring to “immediately engage the services of a real estate agent of his choosing in
Vermont” to list the property for sale. This order gave Attorney Ring the power to sign
agreements, set the listing price, negotiate, accept offers, and sign the purchase and sale agreement.
The order also required the parties to “fully and promptly cooperate” with Attorney Ring.
¶ 4. In August 2019, the Massachusetts family court issued a divorce decree nisi that
required the “previously ordered sale process” for the property to “continue until the real estate is
sold” and ordered the parties to continue cooperating with Attorney Ring to facilitate the sale.
Subsequently, plaintiff appealed several of the court’s rulings, including the divorce decree.
¶ 5. In the interim, Attorney Ring filed a petition in the family division of Vermont
superior court, asking the court to domesticate the orders of the Massachusetts family court and
recognize his authority to sell the property. Plaintiff filed a motion to dismiss, explaining that his
Massachusetts appeal meant that the orders were not final and therefore not entitled to recognition
in Vermont under the Full Faith and Credit Clause of the U.S. Constitution. See U.S. Const., art.
IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial
Proceedings of every other State.”). The family division agreed and dismissed the petition in
January 2020.
¶ 6. Back in Massachusetts, plaintiff filed a motion in the Massachusetts Appeals Court
to stay the sale of the property pending appeal. The court denied the motion in May 2020,
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concluding that plaintiff had failed to show irreparable harm and that his likelihood of success on
the merits, as well as the potential harm to his wife, weighed against granting the motion.
¶ 7. Shortly thereafter, the Massachusetts family court issued a contempt order against
plaintiff. The order stated that the appeals court’s denial of plaintiff’s motion for a stay “provides
an opportunity for Attorney Ring to again seek certification of this authority to convey the parties’
real estate in Vermont, all as had been previously ordered by this Court.” The order further stated
that if the parties failed to sign the sale documents, “Attorney Ring has full authority to effect
conveyance to a bona fide third-party purchaser of the parties’ Vermont real estate.”
¶ 8. In September 2020, Attorney Ring entered into an agreement with a buyer,
Highland Realty Trust LLC, to purchase the Stowe property. As part of the sale, the parties agreed
to hold back $100,000 in escrow, half of which was to be released upon a final, non-appealable
divorce decree, or all released upon the delivery of a deed signed by both plaintiff and his wife.
Without this deed, the remaining $50,000 was to be used “to reimburse the buyer for any actual
costs incurred and attorney’s fees to defend any action by the seller(s).” The agreement also
provided that the transaction was “subject to and conditioned upon the issuance by the Lamoille
Superior Court of the entry of a decree for incorporating a foreign judgment.” Attorney Ring asked
the divorcing parties to agree to the sale and sign the deed. Plaintiff’s wife agreed to sell the
property, but plaintiff did not respond. Despite plaintiff’s unwillingness to cooperate, Highland
Realty accepted a deed from Attorney Ring along with an affidavit attesting to his authority from
the Massachusetts family court.
¶ 9. In January 2021, plaintiff filed the instant action in the civil division of Vermont
superior court against Attorney Ring and Highland Realty. He alleged that Attorney Ring lacked
authority to sell the property to Highland Realty and asked the court to rescind the contract, quiet
title, and hold Attorney Ring in contempt for failure to follow the Vermont family division’s order
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dismissing Attorney Ring’s petition for domestication. Defendants moved to dismiss the
complaint. .
¶ 10. The civil division held a hearing in March 2021. Counsel for Attorney Ring argued
that the court should dismiss the case because the property was marital property within
Massachusetts’s jurisdiction and thus Vermont courts lack subject matter jurisdiction. In addition,
counsel for Highland Realty argued that the Vermont court should defer to the Massachusetts
proceeding as a matter of comity. Plaintiff’s counsel maintained that Vermont courts have
jurisdiction over real property located within the state and that Attorney Ring should not have sold
the property until his appeal in Massachusetts was resolved and a final order could be domesticated
in Vermont recognizing his authority. When the civil division asked plaintiff’s counsel why he
did not bring this action in Massachusetts, he explained that the sale was a Vermont transaction
involving Vermont property and that he didn’t believe that “going to Massachusetts to try to
change that order would have any impact on what happens here in Vermont.”
¶ 11. The civil division granted defendants’ motions to dismiss. While the civil division
determined that it had jurisdiction to quiet title to Vermont property, it concluded that consistent
with the principles of comity, under which a court may recognize or defer to the acts of another
jurisdiction, it would dismiss the complaint to avoid interfering with the pending action in
Massachusetts. Plaintiff moved to reconsider, arguing that comity was inappropriately applied,
and the civil division declined to disturb its judgment.
¶ 12. On appeal, plaintiff argues that the civil division erred by dismissing his case on
comity grounds. He contends that because the property is located in Vermont, the Massachusetts
court lacked jurisdiction to order Attorney Ring to directly convey the property, relying principally
on Fall v. Eastin, 215 U.S. 1, 7-8 (1909) (establishing that court in one state cannot determine title
to property in another state “by its decree, nor by a deed made by a master in accordance with the
decree” but may indirectly affect title by ordering party to take action with respect to property).
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As a result, plaintiff argues, the civil division erroneously deferred to the Massachusetts
proceeding under principles of comity.
¶ 13. Comity principles may apply when multiple courts have jurisdiction over the same
dispute. The doctrine “teaches that one court should defer action on causes properly within its
jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant
of the litigation, have had an opportunity to pass upon the matter.” Rhines v. Weber, 544 U.S.
269, 274 (2005) (quotation omitted); see also Cavallari v. Martin, 169 Vt. 210, 215, 732 A.2d 739,
743 (1999) (“[I]n appropriate circumstances, principles of comity can provide a[] . . . basis for
nonintervention by a Vermont court in a dispute that has already come before some other forum.”).
Under this doctrine, courts have discretion to stay or dismiss a proceeding if “an action concerning
the same parties and the same subject matter has been commenced in another jurisdiction capable
of granting prompt and complete justice.” Angelopoulus v. Angelopoulus, 2 N.E.3d 688, 695 (Ind.
Ct. App. 2013); see also Restatement (Second) of Conflict of Laws § 86 cmt. b (1969) (explaining
that “where it is clear that plaintiff can secure all the relief to which [they are] entitled in the first
action . . . courts will frequently, in their discretion, grant a stay of the second action pending the
outcome of the first”). We have explained that comity “is designed to foster cooperation among
the states, preclude forum shopping, avoid multiple or inconsistent judgments, and promote
judicial economy.” Chandler v. Vt. Mut. Ins. Co., 2014-030, 2014 WL 3714930, *2 (Vt. May 9,
2014) (unpub. mem.), https://www.vermontjudiciary.org/sites/default/files/documents/eo14-
030.pdf [https://perma.cc/QB4C-56KS]; see also McWane Cast Iron Pipe Corp. v. McDowell-
Wellman Eng’g Co., 263 A.2d 281, 283 (Del. 1970) (explaining that where similar action is
pending in another jurisdiction, exercising discretion to stay or dismiss case “should be exercised
freely” to “avoid[] wasteful duplication of time, effort, and expense . . . [caused by] adjudication
of the same cause of action in two courts” and avoid “possibility of inconsistent and conflicting
rulings and judgments”).
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¶ 14. As an initial matter, the parties disagree about the appropriate standard under which
this Court should review a dismissal on comity grounds. Plaintiff contends that because the civil
division dismissed his complaint, we should review the court’s decision without deference. See
Skaskiw v. Vt. Agency of Ag., 2014 VT 133, ¶ 6, 198 Vt. 187, 112 A.3d 1277 (noting that Court
“review[s] decisions on a motion to dismiss de novo under the same standard as the trial court”).
Defendants counter that dismissals based on comity are discretionary and should therefore be
reviewed for abuse of discretion. See Maghu v. Singh, 2018 VT 2, ¶¶ 26-27, 206 Vt. 413, 181
A.3d 518 (concluding that court did not abuse discretion in declining to defer to Indian law).
¶ 15. We conclude that a decision dismissing an action under comity principles should
be reviewed for abuse of discretion. Our case law is clear that “[c]omity is not a rule of law, but
one of practice, convenience, and expediency.” In re Dennis’ Estate, 98 Vt. 424, 426, 129 A. 166,
167 (1925). Comity “has the power to persuade but not command.” Boston L. Book Co. v.
Hathorn, 119 Vt. 416, 422, 127 A.2d 120, 125 (1956) (quotation omitted). As such, applying
comity principles requires the exercise of judicial discretion. See State v. Hunt, 145 Vt. 34, 43,
485 A.2d 109, 113 (1984) (defining judicial discretion as “ ‘sound discretion,’ not discretion
exercised arbitrarily, but with due regard for that which is right and equitable under the
circumstances, and directed by reason and conscience to a just result” (quotation omitted)).
Accordingly, a decision on comity grounds should be reversed only for abuse of that discretion.
See Maghu, 2018 VT 2, ¶ 26; see also Unified CCR Partners v. Zimmer, 2016 VT 33, ¶ 15, 201
Vt. 474, 144 A.3d 1045 (“A trial court’s discretionary rulings are examined under an abuse of
discretion standard of review, which requires a showing that the trial court has withheld its
discretion entirely or that it was exercised for clearly untenable reasons or to a clearly untenable
extent.” (quotation omitted)).
¶ 16. Applying that standard here, we discern no abuse of discretion. In seeking to
rescind the sale of the property, plaintiff challenges the Massachusetts family court’s jurisdiction
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to order Attorney Ring to directly sell the Vermont property. As plaintiff’s appeal of the divorce
decree and related orders remains pending in Massachusetts, the civil division was well within its
discretion to dismiss this action to give the Massachusetts courts the first “opportunity to pass upon
the matter.” Rhines, 544 U.S. at 274 (quotation omitted). In this case, dismissal serves the purpose
of the comity doctrine by avoiding multiple or inconsistent judgments that could result from both
Vermont and Massachusetts courts adjudicating this claim.
¶ 17. Plaintiff’s arguments to the contrary are unavailing. Plaintiff first maintains that
Vermont courts should not defer to another state’s court order where that court lacked jurisdiction
to enter the order. He points to a case where the Court of Appeals of Kansas determined that the
state of Nebraska lacked authority to directly sell real property located in Kansas, and thus
concluded that the Nebraska decree “should not be given effect in Kansas based on comity.” Ward
v. Hahn, 400 P.3d 669, 676 (Kan. Ct. App. 2017).
¶ 18. Plaintiff’s argument confuses principles of comity that apply to a final order with
the principles that apply to an ongoing proceeding. Regarding a final order, a court may enforce
an order issued under the law of another jurisdiction “not as a matter of obligation” under the Full
Faith and Credit Clause of the U.S. Constitution, but “out of deference and respect” to the other
jurisdiction as a matter of comity. Padron v. Lopez, 220 P.3d 345, 358 (Kan. 2009). In Ward, the
Kansas court applied these principles in considering whether to recognize the Nebraska decree
where there was no indication that the decree had been appealed or was otherwise not final. 400
P.3d at 671-72. Here, however, the civil division did not defer to a specific order of the
Massachusetts family court but instead to “the pending case in Massachusetts” as a whole. In this
context, the civil division did not apply comity principles to recognize a particular judgment from
the Massachusetts court, but rather to afford the Massachusetts courts—the jurisdiction in which
this litigation began—the first opportunity to determine the issue. Thus, in affirming the civil
division’s decision, we emphasize that we do not reach the merits of plaintiff’s jurisdictional
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argument. Instead, we merely acknowledge that the civil division appropriately exercised its
discretion to defer to the Massachusetts proceedings, where plaintiff may pursue his claim.
¶ 19. Relatedly, to the extent that plaintiff argues that the Massachusetts courts cannot
grant complete relief because they lack jurisdiction over the property, we find this argument
unconvincing. The Massachusetts family court had jurisdiction over the parties to grant the
divorce and divide their marital property. See Mass. Gen. Laws ch. 215 § 3 (establishing probate
court jurisdiction over divorce actions); id. ch. 208 § 34 (authorizing probate court to divide marital
property in divorce action); Bianco v. Bianco, 358 N.E.2d 243, 245 (Mass. 1976) (explaining that
statute gives court “power to dispose completely of the property of [divorcing] litigants” through
equitable division). The court also had jurisdiction over Attorney Ring as special master. See
Mass. R. Dom. Rel. P. 53 (governing appointment and authority of master in divorce proceeding).
The Massachusetts Appeals Court unquestionably has authority to consider whether the family
court’s grant of authority to Attorney Ring exceeded its jurisdiction, see Mass. Gen. Laws ch.
211A § 5 (establishing jurisdiction of appeals court), and to determine whether the family court’s
division of property was “plainly wrong and excessive,” Baccanti v. Morton, 752 N.E.2d 718, 724
(Mass. 2001) (citing standard under which Massachusetts appellate courts review judgment
dividing property) (quotation omitted). Accordingly, the Massachusetts courts can grant all relief
to which plaintiff may be entitled.
¶ 20. Next, plaintiff argues that Vermont courts should not apply principles of comity to
recognize an order that contradicts Vermont law. He maintains that the Massachusetts order
counters Vermont law because under the Vermont Rules of Family Proceedings, any order
disposing of real property is automatically stayed prior to and pending appeal. See V.R.F.P. 12(a)
(providing for automatic stay of judgment for thirty days after entry of judgment or until appeal
period expires, with exceptions not applicable to orders involving real property); V.R.F.P. 12(d)
(providing that judgment stayed under Rule 12(a) is also stayed during pendency of appeal).
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¶ 21. Comity “never requires a court to give effect to the laws of another state which
conflict with those of its own state.” Maghu, 2018 VT 2, ¶ 26 (quotation omitted). However, this
is not a technical rule that prohibits deference where the laws of two jurisdictions are not identical;
this doctrine is intended to explain that comity principles do not bind Vermont courts to accept
foreign judgments that violate Vermont public policy. Cf. Montaño v. Frezza, 2017-NMSC-015,
¶ 12, 393 P.3d 700 (“The law of the [foreign jurisdiction] must not only contravene [state] public
policy, but be sufficiently offensive to that policy to outweigh the principles of comity.” (quotation
omitted)). For example, in Maghu, a couple married in India and moved to Vermont, and the
husband later filed for no-fault divorce. The wife sought to dismiss the complaint in part on comity
grounds, arguing that India only recognizes fault grounds for divorce. We rejected this argument,
explaining that a contrary decision “would require the trial court to disregard the clear policy
established by the Legislature and reflected in our statutes” and could result in “[a]n untold number
of Vermont residents [being] denied access to a divorce . . . merely because a party was married
in a country with divorce laws inconsistent with those of Vermont.” Maghu, 2018 VT 2, ¶¶ 27,
30. In that case, deferring to Indian law would have clearly violated our public policy regarding
no-fault divorce.
¶ 22. Unlike in Maghu, here plaintiff has failed to show that the Massachusetts procedure
for considering stays pending appeals violates the policy underlying Family Rule 12 such that it
outweighs the comity principles outlined above. Plaintiff maintains that Vermont law reflects the
policy that real property rights should be preserved pending appeal because such rights “cannot
simply be given back should the appellate process reveal error,” essentially arguing that he will
suffer irreparable harm even if he succeeds on appeal. Under Massachusetts Rule of Appellate
Procedure 6(a), a single justice of the Massachusetts Appeals Court reviews an application for a
stay of a lower court order. The appellant must show the likelihood of success on the merits, the
likelihood of irreparable harm if the stay was denied, the absence of substantial harm to the other
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party if the stay was granted, and the absence of harm to the public interest if the stay was granted.
C.E. v. J.E., 37 N.E.3d 623, 625-26 (Mass. 2015). After plaintiff moved for a stay of the transfer
of assets ordered in the divorce judgment, the Massachusetts Appeals Court applied this test and
concluded that plaintiff “failed to demonstrate that the harm to him, if the stay does not issue, is
irreparable.” The court also noted that the likelihood of plaintiff’s success on the merits and the
relative harm to his wife if the judgment was stayed weighed against granting the stay. Thus, a
stay pending appeal was available to plaintiff under Massachusetts law, but he failed to
demonstrate that it was warranted. As such, the civil division was within its discretion to determine
that the procedure by which the Massachusetts court determines stays pending appeal was not
fundamentally opposed to the public policy underlying Vermont’s automatic-stay rule.
¶ 23. Likewise, we reject plaintiff’s argument that dismissal based on comity was
inappropriate because Attorney Ring’s sale of the property subverted the Vermont family
division’s order denying his domestication petition. That order merely explained that because
plaintiff appealed the Massachusetts family court orders, they were not final and thus not entitled
to full faith and credit in Vermont under Article IV, § 1 of the U.S. Constitution. See In re
Forslund, 123 Vt. 341, 344, 189 A.2d 537, 539 (1963) (explaining that orders of another state are
only entitled to full faith and credit “where there has been a final judgment on the merits of a
case”). The order did not determine that Attorney Ring lacked authority to transfer the property
absent a domestication order or otherwise prohibit the sale of the property.
Affirmed.
FOR THE COURT:
Chief Justice
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