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.
2

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.
3

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).
4

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 
5

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.