Kathleen A. Dion v. Frances v. Flynn.

• Court: Massachusetts Appeals Court
• Decided: February 22, 2023
• Docket: 22-P-0929
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-929

KATHLEEN A. DION

vs.

FRANCES V. FLYNN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kathleen A. Dion, is the daughter of the

defendant, Frances V. Flynn, and the decedent, Hugh Flynn.1 Dion

filed a complaint in the Superior Court contending, among other

things, that Frances fraudulently induced or unduly influenced

Hugh to remarry, thereby interfering with Dion's inheritance

rights. Following a hearing, the judge allowed Frances's motion

to dismiss, and a judgment entered dismissing the complaint with

prejudice. This appeal followed. We affirm.

Background. Frances and Hugh divorced in 2017 after a

long-term marriage that produced several children, including

Dion. As relevant here, the former home in Malden was awarded

to Hugh. In 2016, prior to the divorce, Hugh executed a last

1 We refer to the Flynns by their first names to avoid confusion. will and testament that made no provisions for Frances. Hugh

named Dion and another child, Colleen D. Goggin, as the

beneficiaries of his estate, in equal shares. Hugh also named

Dion as his health care proxy and power of attorney at that same

time. On September 20, 2016, Hugh established The Flynn Family

2016 Trust and named himself and Dion as trustees. Hugh

transferred the deed to the Malden house to the trust. On May

19, 2017, the trustees deeded the house to Dion and Goggin as

joint tenants. Immediately thereafter, Dion and Goggin deeded

the house to Hugh individually.

Hugh and Frances resumed living together in the former

marital home in Malden in 2018. Hugh was diagnosed with cancer,

was hospitalized, and returned to the house in hospice care in

February 2020. Hugh and Frances remarried on February 28, 2020.

Hugh died on March 3, 2020. After litigation in the Probate and

Family Court regarding Hugh's estate, the house was deeded to

Frances through a deed of distribution by personal

representative on February 11, 2021.2

Discussion. "We review an order on a motion to dismiss de

novo. Factual allegations are sufficient to survive a motion to

dismiss if they plausibly suggest that the plaintiff is entitled

2 In his will, Hugh appointed Dion as his personal representative. However, she declined to serve, and Frances was appointed in her stead.

2 to relief" (citation omitted). A.L. Prime Energy Consultant,

Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424

(2018). Here, the judge dismissed Dion's complaint for lack of

subject matter jurisdiction under Mass. R. Civ. P. 12 (b) (1),

365 Mass. 754 (1974), failure to state a claim under Mass. R.

Civ. P. 12 (b) (6), 365 Mass. 754 (1974), and pendency of a

prior State court action under Mass. R. Civ. P. 12 (b) (9), as

amended, 450 Mass. 1403 (2008). Dismissal under each rule was

proper in this case.

Dion argues that Frances is not entitled to her statutory

share of Hugh's estate as the surviving spouse, while claiming

that she does not seek to invalidate the marriage itself. Dion

cites no authority for the proposition that a spouse to a valid

marriage is not entitled to a statutory share, nor have we found

any. In fact, our case law is to the contrary. "Marriage

creates a status. The property rights to . . . a share in the

estate of the deceased spouse . . . arise automatically from the

status." Bradford v. Parker, 327 Mass. 446, 448 (1951). See

G. L. c. 190B, § 2-102. By statute, the Probate and Family

Court has exclusive jurisdiction over actions to contest the

validity of a marriage. See Bushnell v. Bushnell, 393 Mass.

462, 465 n.4 (1984); G. L. c. 207, § 14. Because the Superior

Court did not have jurisdiction, the judge properly dismissed

the complaint under Mass. R. Civ. P. 12 (b) (1).

3 Dion contends that she is not challenging the nature and

validity of the remarriage, but that she was harmed by Frances

based on theories of undue influence, fraud, and tortious

interference with an expected gift. Notwithstanding her

protestations to the contrary, Dion's claims are all rooted in

her challenge to the validity of the remarriage. Indeed, her

prayer for relief seeks, among other things, "an invalidation of

the so-called marriage."

General Laws c. 207, § 14, provides that only parties to

the marriage can institute an action to annul it. Undoubtedly,

Dion is not a party to the marriage and therefore lacks standing

to seek to annul it. Moreover, any issues relating to the

capacity to marry must be raised during the lifetime of the

parties to the marriage. See Bradford, 327 Mass. at 447. For

these reasons, the judge properly determined that Dion lacked

standing to contest the validity of the marriage and dismissed

the complaint under Mass. R. Civ. P. 12 (b) (6).

Finally, the probate proceedings regarding Hugh's estate

constitute a prior action in a court of the Commonwealth.

"Dismissal under [Mass. R. Civ. P. 12 (b) (9)] is proper when

the same parties are involved in two actions, one begun before

the other, and [i]t is apparent from the face of the present

complaint . . . that all the operative facts relied on to

support the present action had transpired prior to the

4 commencement of the first action" (quotations and citation

omitted). Gold Star Homes, LLC v. Darbouze, 89 Mass. App. Ct.

374, 377 (2016). Moreover, a tort action cannot be used to

attack a decree of the Probate and Family Court. See Brignati

v. Medenwald, 315 Mass. 636, 638-639 (1944). For these

additional reasons, the judge properly dismissed the complaint.3

Judgment affirmed.

By the Court (Blake, Hershfang & D'Angelo, JJ.4),

Clerk

Entered: February 22, 2023.

3 Based on our holdings, we need not address whether Dion's complaint set forth the necessary elements of each count. 4 The panelists are listed in order of seniority.