402 Mass. 21, 520 N.E.2d 151 (1988)
(C) 2008 Thomson/West. No Claim to Orig. US Gov. Works.
Important to remember about these cases: Complaints are read not only for FACTS but also for the LAW. This one can be read primarily for the LAW and secondarily for the FACTS.
also run in TWO
directions. In other words, the
Supreme Judicial Court of
Argued Feb. 2, 1988.
Ex-wife brought tort
assaultive conduct which took
place prior to parties' divorce. The
Superior Court, Ernest S. Hayeck,
J., dismissed on ground that
in tort action had been addressed
previously in divorce action.
of case on its own motion, the
Supreme Judicial Court,
held that doctrines of claim
and issue preclusion were
action should not have been dismissed.
Reversed and remanded.
Ex-wife's tort claim against
ex-husband was not
barred under doctrine of
 Ex-wife's tort claim against
husband was not barred
under doctrine of issue
 Ex-husband's contention, that
ex-wife's tort claim
should be dismissed for
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.
HENNESSEY, Chief Justice.
[520 N.E.2d 152] The plaintiff appeals from the dismissal in the Superior Court of her tort action against her former husband. [402 Mass. 22] A judge dismissed this action on the ground that the issues presented in the tort action had been addressed previously in the parties' divorce action. We transferred the case to this court on our own motion, and now reverse.
We summarize the facts as stated in the Superior Court complaint. On April 22, 1982, the parties were still married, although they had been separated for some months. That day, they engaged in a heated telephone argument. The defendant went to the plaintiff's residence to continue the argument, but the plaintiff would not open the door. The defendant then broke a glass panel in the door, reached through, grabbed the plaintiff by the arm, and violently pulled her, causing her repeatedly to strike her head against the door frame. As a result, the plaintiff sustained serious physical injuries, including spells of dizziness and blackouts. She subsequently was diagnosed as having traumatic epilepsy. She seeks damages for her personal injuries.
Other facts were asserted before the Superior Court judge by means of affidavits and a transcript of proceedings before a judge of the Probate Court. The parties were divorced on August 19, 1985, following a hearing in which the plaintiff presented evidence as to, among other things, the assault and her injuries. The plaintiff filed the instant action in the Superior Court on April 22, 1985, prior to the divorce proceedings. The plaintiff did not disclose the existence of the pending tort claim to the Probate Court. She did not serve the defendant with a copy of the complaint until almost a year later, on April 18, 1986, after the Probate Court judge entered judgment in the divorce action. The divorce was granted pursuant to G.L. c. 208, sec. 1B (1986 ed.), on the ground of irretrievable breakdown of the marriage. The plaintiff was awarded custody of the couple's five children, alimony, child support, and a share of the marital property. The Probate Court judge did not make findings indicating what factors he considered in reaching his decisions as to alimony and the division of marital property. The divorce judgment was not appealed, and has become final. See G.L. c. 215, secs. 9, 24 (1986 ed.). Cf. Mass.R.Dom.Rel.P. 60(b) (1975).
[402 Mass. 23] On being served with
the plaintiff's tort action,
the defendant filed a motion to
Mass.R.Civ.P. 12(b)(5), 365
Mass. 754 (1974), for insufficiency of
of process, alleging that he was
prejudiced by the plaintiff's failure
her claim diligently.
FN1. We treat the defendant's motion according to its true character, as a motion to dismiss under Mass.R.Civ.P. 41(b)(2), 365 Mass. 804 (1974). See Brissette v. Crantz, 23 Mass.App.Ct. 213, 214, 500 N.E.2d 828 (1986), and case cited.After hearing, the Superior Court judge dismissed the plaintiff's tort action, "on the basis of issue preclusion, collateral estoppel, res judicata, or any one of those three, whichever happens to be the best one." (FN2)
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.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.
 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. 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.
In JAMES JAROSZ vs. STEPHEN L. PALMER & another, No. 98-P-1062 Appeals Court (Middlesex. May 8, 2000. - August 11, 2000), the Appeals Court wrote: "In order for the moving party to successfully invoke the doctrine of issue preclusion, the moving party must show that the issue was "actually litigated"; determined by a "final judgment"; and was "essential to the judgment." Cousineau v. Laramee, 388 Mass. 859, 863 n.4 (1983). Restatement (Second) of Judgments Sect. 27 (1982)."
He argues that the plaintiff in bad faith delayed service in order to obtain a tactical advantage in the divorce action; that she improperly failed to list the existence of the action as an asset on a verified financial statement filed in the Probate Court; (FN3)
FN3. We think that it is appropriate to require, in future divorce actions, that the parties list the existence of such claims, although of unascertainable market value, in financial statements filed with the Probate Court.and that he has been prejudiced by the delay because he no longer may appeal the divorce judgment. These issues are not properly before us on appeal. The parties presented little or no relevant evidence on these issues, the Superior Court judge made no findings, and the record is inadequate to permit a ruling of law. We therefore express no opinion as to [402 Mass. 26] these issues. The defendant on remand may raise these issues by appropriate motion or pleading.