¶ 18. dissenting. From time to time we get cases that appear to be relatively small and unimportant but actually raise very significant issues that require careful and full consideration. In my opinion, this is such a case. To the majority this case is about subject matter jurisdiction over property disputes in annulment actions, an issue that will rarely, if ever, rise again. In my opinion, this case is really about the preclusive effect of subject matter jurisdiction determinations and the treatment of litigants, especially those that are self-represented — both subjects regularly appear and impact the justness of this Court’s actions. The issue the majority chooses to address is legitimate, but the issues it largely ignores are critical and command a different result. Thus, I dissent.
¶ 19. The concept that a court can act only when it has subject matter jurisdiction over the matter in issue is fundamental to our justice system. Unfortunately, we have historically addressed subject matter jurisdiction with great rigidity, allowing it to be raised at any time in a proceeding, including right up to the end of an appeal, or even thereafter, and over and over again with no finality. Thus, a decision that the deciding court did not have subject matter jurisdiction can be technically right, but undoing the decision can create great injustice for parties who relied upon the apparent ability of the court to adjudicate the controversy. As discussed below, this is a case of great injustice where the claim of lack of subject matter jurisdiction is almost a pure technicality.
¶ 20. We made a great stride forward in ensuring finality of judgments against lack-of-subject-matter-jurisdiction claims where the question of subject matter jurisdiction has already been litigated by adopting the Restatement (Second) of Judgments § 12 (1982). See Quinn v. Schipper, 2006 VT 51, ¶ 8, 180 Vt. 572, 908 A.2d 418 (mem.). Section 12 states that a judgment precludes relitigation of subject matter jurisdiction in subsequent litigation with three exceptions. Although I believe none apply, the majority has found that one does: “The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the *353action was a manifest abuse of authority.”2 Restatement (Second) of Judgments § 12(1). In considering the majority’s position, I note that the exception “applies in only the most limited circumstances.” Lincoln Loan Co. v. City of Portland, 136 P.3d 1, 9 (Ore. 2006). The Reporter’s Notes to § 12 states: “Cases involving plain excess of jurisdiction are rare,” citing a case in which a probate court entered a declaratory judgment that a zoning ordinance was unconstitutional. The U.S. Supreme Court describes the standard as a judgment without even an arguable basis or a clear usurpation of power. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010) (quotation omitted).
¶ 21. The majority provides no analysis of how this case meets the standard of § 12(1) beyond its analysis that the family division was wrong and the civil division was right. Reducing the case to its essentials, plaintiff alleges that the person to whom he thought he was married, defendant, stole his property while he was incarcerated and he could not protect it. She answers by admitting that she had property belonging to plaintiff, and by responding that some of the property was stolen by a third person during a break-in at her house, other property was taken by a friend of plaintiff at plaintiffs request, and some she has but is trying to give back to plaintiff. One piece of property was a utility trailer which,, in a separate judgment, the civil division found was sold without plaintiffs consent, meriting an award to plaintiff of $2100. The civil division in this case justified that decision as proper because the trailer was required to be registered, “and was registered only in [plaintiffs] name, thus it had at least some indicia of separate and independent ownership, and it was not the type of item which is obviously joint marital property.” By comparison, the court described the property in this case as “various and sundry items which are typical of any decade-long cohabitation, especially under the color of marriage.” The legal significance of the expressed differences between these properties escapes me. For both, plaintiff alleged that defendant disposed of the property before any divorce/annulment proceeding was filed — that is, that she committed the tort of conversion, that the property was not available for distribution in the annulment order, *354and that defendant did not contest that she had property belonging to plaintiff.
¶ 22. The civil division order concluded that 4 V.S.A. § 33(4), which gives jurisdiction of annulment proceedings to the family division, includes jurisdiction over the property of persons whose marriage is annulled. It does so in a four-page, single-spaced decision that includes citation to and analysis of cases from six other jurisdictions. The majority goes through our statutes in detail to reach the same conclusion. Neither addresses what this action actually is — a conversion action with respect to property owned by plaintiff and possessed at one time by defendant but not in either’s possession at the time of the annulment. I consider it debatable whether the conversion action is exclusively within the jurisdiction of the family division, but we need not, and should not, reach that question. See LaPlume v. Lavallee, 2004 VT 78, ¶¶ 8-9, 177 Vt. 526, 858 A.2d 255 (mem.) (holding that plaintiffs claim for money damages against former partner for retention of property was conversion claim subject to jurisdiction of small claims court). The conversion theory was, of course, exactly the rationale under which the civil division awarded plaintiff damages in the separate action regarding the utility trailer. See also Lord v. Smith, No. 543668, 33 Conn. L. Rptr. 708, 2003 WL 294412, at *4-6 (Conn. Super. Ct. Jan. 13, 2003) (concluding that court that originally disposed of property during custody dispute between unmarried parties lacked jurisdiction, but that plaintiff could not challenge jurisdiction after it was final given that he agreed to jurisdiction at the time, matter was fully litigated and any subsequent action would have been heard in same superior court).
¶ 23. To say that the family division’s ruling was “so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority” creates an exception to issue preclusion so broad as to eat up the rule and bring us back to the days of raising lack of subject matter jurisdiction over and over. The family division ruling may have been wrong, but it is not a manifest abuse of discretion, a clear usurpation of power, or a ruling without an arguable basis.
¶ 24. There is another way to look at what occurred here, that the civil division judge essentially rendered a horizontal appeal from the decision of the family division judge. In Economou v. Economou, we clearly indicated our disapproval of horizontal appeals between superior court judges: “To allow a subsequent *355irreconcilable ruling to stand would encourage litigants in superior courts to delay proceedings already initiated while awaiting the future assignment of a presiding judge they believed more likely to rule in their favor. The appellate process must proceed vertically, not sideways.” 133 Vt. 418, 421-22, 340 A.2d 86, 88 (1975); see also Kotz v. Kotz, 134 Vt. 36, 38-39, 349 A.2d 882, 884 (1975). Although we have narrowed the holding of Economou, we have not abandoned its rationale. See Morrisseau v. Fayette, 164 Vt. 358, 362-64, 670 A.2d 820, 823-24 (1995). I recognize that this “horizontal appeal” was done at the initiative of a judge, rather than a lawyer or litigant, but this makes it even less acceptable. There are ways the system can work out different understandings of the law between judges without giving inconsistent rulings.
¶ 25. There are other important considerations that should affect how we address this case. Whether we apply preclusion represents a balancing of the need for finality against the validity of the judgment for which finality is sought. Restatement (Second) of Judgments § 12 cmt. a. Here the need for finality is compelling, and the interest in validity is almost nonexistent. Subject matter jurisdiction here is virtually a technicality. We are dealing with two divisions of the superior court. No matter which division is involved, the judge will come from the same pool, and the law applied will be the same. Indeed, it is possible that when plaintiff seeks to reopen in the Franklin Family Division, he will appear before the same judge who dismissed his case in the Franklin Civil Division.
¶ 26. Two considerations demonstrate the extreme need for finality in the small claims court. The first is that the jurisdictional issue was raised sua sponte by the judge in the appeal from the small claims decision; otherwise, the case would have ended. The Legislature has authorized small claims actions to provide “a simple, informal, and inexpensive procedure for the determination” of disputes involving less than $5000. 12 V.S.A. § 5531(a). The Vermont Judiciary, through the Court Administrator and the Trial Court Administrative Judge, publishes a booklet to help litigants and prospective litigants understand and use the small claims process. The booklet asks and answers basic questions like: “What is different about small claims cases? You do not need a lawyer. Of course, if you wish, you may have one”; and “The papers you file and the procedures used at the hearing are simple and don’t involve many of the legal technicalities used in other courts”; and ‘You can argue your side of the case in your own words and *356present evidence to back it up.” Vt. Judiciary, Small Claims Cases in Vermont 1-2 (2013), https://www.vermontjudiciary.org/GTC/civil/ MasterDocumentLibrary/Small%20Claims%20Booklet.pdf. There is nothing simple, informal, or inexpensive about a process in which a litigant has to spend years to get an answer to a straightforward dispute, pay three filing fees — four under the majority’s decision — and end up fighting pro se a court decision that cites appellate decisions and statutes from six states and a law review article. Of all the places for the judge to interject a legal issue involving subject matter jurisdiction, this should be the last.
¶ 27. The second consideration is that the majority’s decision enmeshes these parties in destructive litigation almost without end when the dispute cries out for a resolution. Defendant has alleged that plaintiff is using litigation to control and harass her. Under these circumstances, virtually any final decision would be more just than continuous technicality and indecision. This case was over before the civil division court decided to raise sua sponte a jurisdictional issue. Neither party wanted the result the civil division court has reached; both lost.
¶ 28. In my judgment, the majority has decided the least pressing question in this case, failed to grapple with the most important question, and undercut the modernization of the law of subject matter jurisdiction while affirming great injury to the litigants. We should act decisively here, hold that issue preclusion prohibits courts from second-guessing each other’s final judgments, and ensure this kind of decision does not occur again. From the failure of the majority to do so, I respectfully dissent. I am authorized to state that Justice Robinson joins this dissent.
The exception does not specifically apply because the language covers the situation where the court finds jurisdiction rather than the situation where it does not. The majority concludes that the policy behind the exception applies in either situation, and I agree.