Kathleen A. Dion v. Frances v. Flynn. ( 2023 )

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.
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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).
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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
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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.
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