Martin v. Kenney
Martin v. Kenney
Opinion of the Court
By complaint in December, 2000, Gail Martin, acting as guardian for her minor son, sought an order pursuant to G. L. c. 197, § 9, in Norfolk Superior Court, to require the estate of her son’s father to pay child support and to maintain medical and hospitalization coverage for the child. The father had died in December, 1999, and probate of his estate was pending in the Norfolk County Probate and Family Court when the complaint was brought. Earlier in 1999, the father had been ordered by a judge of the Suffolk County Probate and Family Court to pay Martin $285 per week for support of their child and to maintain medical insurance for him. The 1999 child support order provided that the father’s support obligation was to become a claim against, and continuing obligation of, the decedent’s estate. The executrix, however, failed to pay the estate’s child support obligations after the father’s death. After filing her complaint in Superior Court, Martin filed a notice of claim against the estate in Norfolk Probate and Family Court, in which she referenced the proceeding pending in Norfolk Superior Court.
The executrix moved to dismiss Martin’s Superior Court complaint pursuant to Mass.R.Civ.P. 12(b)(9), 365 Mass. 754 (1974), or, in the alternative, to transfer the action to the Suffolk Probate and Family Court, which had issued the original support order. In support of her motion to transfer, the executrix cited G. L. c. 209, § 37, which provides that actions for child support orders and modifications thereof be brought in the Probate Court for the county in which the minor resides. A judge of the Superior Court allowed the estate’s motion in August, 2001, and entered a judgment of dismissal, noting, “The prior action in Suffolk Probate affords the [plaintiff] the proper forum for asserting this claim. [Defendant’s] counsel states in open court that he will not oppose a motion to substitute the executrix as the proper [defendant], I find nothing in [G. L.] c. 197, § 9, which requires a claim such as this to be brought in the Superior Court for the [plaintiff] to recover against the estate.”
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.