Pavlik v. Dmytryck, 379 N.E.2d 1117 (Mass. App. Ct. 1978). · Go Syfert
Pavlik v. Dmytryck, 379 N.E.2d 1117 (Mass. App. Ct. 1978). Cases Citing This Book View Copy Cite
5 citation events (4 in the last 25 years) across 2 distinct courts.
Strongest positive: Tompkins v. Department of Environmental Protection (masssuperct, 2012-10-04)
Top citers, strongest first. 5 distinct citers. How cited ↗
discussed Cited as authority (rule) Tompkins v. Department of Environmental Protection
Mass. Super. Ct. · 2012 · confidence medium
“Where final judgment has entered,” the rights of the parties are “limited to timely appeal or other direct challenge”!;] a secondary action is an “impermissible collateral attack!.]” Tompkins v. Tompkins, 65 Mass.App.Ct. 487, 493 (2006), citing Pavlik v. Dmytryck, 6 Mass.App.Ct. 915, 916 (1978).
discussed Cited as authority (rule) Levenson v. Feuer
Mass. App. Ct. · 2004 · confidence medium
Bank of Boston, 5 Mass. App. Ct. 440, 446-447 (1977) (plaintiff who took no appeal from Probate Court allowance of certain accounts cannot collaterally attack decrees by means of petition for declaratory judgment); Pavlik v. Dmytryck, 6 Mass. App. Ct. 915, 916 (1978) (action in Land Court was impermissible collateral attack on Probate Court judgment, even assuming that Probate Court had no authority to order conveyance of plaintiff’s interest in land, where final judgment had entered, and rights of parties were thus “limited to appeal ... or other methods of direct attack”); Lombardo v. …
discussed Cited as authority (rule) Lombardo v. Gerard
Mass. App. Ct. · 1992 · confidence medium
In Pavlik v. Dmytryck, 6 Mass. App. Ct. 915, 916 (1978), we assumed, on facts similar to those here, that the judge exceeded his authority in ordering the transfer of the husband’s property to the wife, and we held that the judgment was nevertheless binding on the parties and those in privity with them, but we indicated that the judgment was not binding on a “stranger” to the litigation whose interests were affected by the proceedings.
discussed Cited "see, e.g." WELLS FARGO BANK, N.A., Trustee v. MARGALY PHILIPPE.
Mass. App. Ct. · 2026 · signal: see also · confidence medium
See also Pavlik v. Dmytryck, 6 Mass. App. Ct. 915, 916 (1978) (party cannot collaterally attack judgment of one court by commencing action in another court).
discussed Cited "see, e.g." Tompkins v. Tompkins
Mass. App. Ct. · 2006 · signal: see, e.g. · confidence medium
See, e.g., Pavlik v. Dmytryck, 6 Mass. App. Ct. 915, 916 (1978) (action in Land Court was “impermissible collateral attack” on Probate Court judgment, even assuming Probate Court lacked authority to order conveyance of plaintiff’s interest in land, where final judgment had entered and rights of parties were thus limited to timely appeal or other direct challenge to Probate Court judgment); Levenson v. Feuer, 60 Mass. App. Ct. 428, 441-442 (2004) (plaintiff, who neither appealed nor sought postjudgment relief from contempt judgment, could not collaterally attack judgment in a declaratory …
Retrieving the full opinion text from the archive…
George F. Pavlik
v.
Edward S. Dmytryck & another
Massachusetts Appeals Court.
Aug 18, 1978.
379 N.E.2d 1117
Edward M. Mahlowitz for the plaintiff., Stephen Gordet for the defendants.
Cited by 4 opinions  |  Published

The defendants’ motion for summary judgment (Mass.R.Civ.P. 56, 365 Mass. 824 [1974]) was allowed and judgment entered dismissing the plaintiff’s complaint brought in the Land Court under G. L. c. 237. Implicit in the allowance of the defendants’ motion was the conclusion of the judge, in which we concur, that the plaintiff resorted to the wrong remedy in seeking to establish his claim to ownership and possession, as a tenant by the entirety, of a parcel of land conveyed to the defendants by the plaintiff’s wife. Her acquisition of full ownership in the land was based upon a judgment of a Probate Court entered on August 20,1974, on her petition for separate support which ordered him to convey his interest in the land to her. She then caused a copy of the separate support judgment to be recorded in the Registry of Deeds. See. G. L. c. 209, § 32D, and G. L. c. 183, §§ 43 and 44. In April, 1975, she conveyed the property to the defendants. No appeal was taken by the plaintiff from the judgment entered on the petition for separate support in the Probate Court. The thrust of the plaintiff’s claim in the present prceedings is that the Probate Court lacked "jurisdiction” to order the conveyance of his interest in the land and, despite persuasive evidence to the contrary, that he had received no[*916] notice of the separate support proceedings.[1] We do not reach those questions in view of our conclusion that the action in the Land Court was an impermissible collateral attack upon the judgment of the Probate Court. Assuming without deciding that the probate judge, in the circumstances of that case, exceeded his authority in ordering the conveyance of the plaintiff’s interest in the land (see Gould v. Gould, 359 Mass. 29, 32-33 [1971]; Dee v. Dee, 1 Mass. App. Ct. 320, 323-324 [1973]; DiMarzio v. DiMarzio, 2 Mass. App. Ct. 174, 177-178 [1974]), nonetheless "in accordance with principles which also form the basis for the familiar doctrine of res judicata the judgment may, after it becomes final, be binding upon the parties to the suit although not upon others, and the rights of parties may therefore be limited to appeal, writ of error, petition to vacate, or other methods of direct attack” (emphasis in original). Old Colony Trust Co. v. Porter, 324 Mass. 581, 586 (1949). See also Dennis v. Dennis, 337 Mass. 1, 4 (1958); Madden v. Madden, 359 Mass. 356, 361-362, cert. denied, 404 U.S. 854 (1971); Restatement of Judgments §§ 4, 6, 7,10 & 11 (1942). The right to challenge such a judgment collaterally is limited to strangers to the earlier proceedings whose interests have been affected thereby and does not extend to the parties to those proceedings or to those in privity with them. Old Colony Trust Co. v. Porter, supra at 587. The plaintiff’s remedy here, if any, was by a timely appeal from or other direct challenge to the judgment of the Probate Court.

Edward M. Mahlowitz for the plaintiff. Stephen Gordet for the defendants.

Judgment affirmed.

1

The docket entries in the separate support proceedings, which were before the Land Court judge, showed, inter alia, that the plaintiff was represented by counsel in those proceedings for more than a year prior to and including the entry of that judgment.