Opinion
File No. 2019-212/D
03-28-2023
In the Matter of Application of Jennifer G. Flannery, Esq. Erie County Public Administrator, as Administrator for the Estate of Jan A. Wilde a/k/a Jan Arthur Wilde a/k/a Jan Wilde, Deceased, For Determination of Distribution of Damages Recovered in a Wrongful Death Action.
LIPSITZ GREEN SCIME CAMBRIA, LLP, Attorneys for Jennifer G. Flannery, Esq., Erie County Public Administrator Christina M. Croglia, Esq., of Counsel. CAROLE I. WILDE, Appearing in a Self-Represented Capacity. JOSHUA E. DUBS, ESQ., Guardian Ad Litem for Unknown Heirs HON. LETITA JAMES, ESQ., N.Y.S. ATTORNEY GENERAL Cited for Unknown Heirs Melissa H. Thore, Esq., Assistant Attorney General, of Counsel.
Unpublished Opinion
LIPSITZ GREEN SCIME CAMBRIA, LLP, Attorneys for Jennifer G. Flannery, Esq., Erie County Public Administrator Christina M. Croglia, Esq., of Counsel.
CAROLE I. WILDE, Appearing in a Self-Represented Capacity.
JOSHUA E. DUBS, ESQ., Guardian Ad Litem for Unknown Heirs
HON. LETITA JAMES, ESQ., N.Y.S. ATTORNEY GENERAL Cited for Unknown Heirs Melissa H. Thore, Esq., Assistant Attorney General, of Counsel.
HON. ACEA M. MOSEY, Surrogate Judge.
Decedent Jan A. Wilde [hereafter, Jan] died at the age of 56 on August 30, 2018, the victim of a motor vehicle accident. He was survived by his mother, Carole Wilde [hereafter, Carole], an alleged non-marital son, Mickie Wilde [hereafter, Mickie], and his spouse, Judy Price Wilde [hereafter, Judy]. Carole initially filed a petition for administration listing Mickie as a putative non-marital son, and Judy as an estranged spouse whose whereabouts were unknown and who was disqualified from inheriting pursuant to EPTL 5-1.2. This petition was dismissed due to Carole's lack of standing. Subsequently, the Erie County Public Administrator filed her petition for limited administration to pursue a wrongful death claim. Limited letters then issued to the Public Administrator on September 10, 2019, after Mickie was duly cited but failed to appear on the return date.
An order compromising a wrongful death settlement for the sum of $90,000.00 was ultimately approved on June 16, 2020 in Supreme Court [Siwek, J.]. One hundred percent of the award was allocated to the cause of action for wrongful death, and the issue of who was entitled to the distribution of the net settlement proceeds (after reimbursement of funeral expenses, payment of attorney's fees, disbursements and fiduciary commissions) was referred to Surrogate's Court for my determination.
I must now determine if the alleged non-marital child and the surviving spouse are each entitled to share in the net proceeds of the wrongful death settlement, and whether the class of non-marital issue is closed.
A hearing on the issues of abandonment by the surviving spouse, status of the non-marital son, and class closing for possible unknown children was held before a Court Attorney-Referee who heard the testimony and reported to me with respect to the issues which I now must decide. Counsel and the self-represented party consented to the appointment of the referee, waived the filing of a written referee report, and consented that I might determine the issues based on the testimony and documentary evidence adduced (see, SCPA 506[6][c]).
Testimony at this hearing was given by Jan's mother, Carole, his sister, Julie Ann Wilde [hereafter, Julie], his brother, Michael Wilde [hereafter, Michael], one of his best friends, Louis Niro [hereafter, Louis], and the attorney for the Public Administrator, Lucy Berkman, Esq. [hereafter, Berkman].
Berkman has since left the Lipsitz firm and Christina M. Croglia, Esq. has replaced her as counsel.
(A)
Louis met Jan in 1978 after Louis transferred to Sweet Home High School, and the two young men ultimately developed a fast friendship. Louis reflected that "Jan was one of my best friends I ever had and I miss him dearly he was smart and he was a good man."
After high school, Jan moved to California to work with his father, and the two friends temporarily lost contact with each other. When Jan returned to the Buffalo area in the late 1980s, he lived with Louis in Grand Island for about a year and a half. Years later, Louis became involved in a "challenging relationship" where he was unsure if a baby was his, and he discussed this with Jan. Jan then opened up about a similar experience he had years before in California:
"Well, at some point me and Jan had discussed this and he had mentioned to me that he wasn't sure if his son was his, either, and I said, well, that's tough to figure out. He told me a story then about how Zoe, I believe that's her name, was a groupie in California and she had an affinity for a member of a band out there and Jan told me he had a scuffle with this guy and that his name was Nicky and his wife [sic] was constantly trying to posture herself to be around this guy and it really bothered Jan. So I guess they had an altercation and he-he didn't come right out and say it, but I knew that his son's name bothered him because there was a similar parallel to his mind about the question of paternity that I had in my mind. Again, he wasn't much to really wanna go on and talk about this at length. So nothing ever became of it and I never met his son and he never really talked about him much."
Louis believed that Jan never had communication with the child, and no one appeared at the funeral claiming to be Jan's child. Louis was certain that Jan died without issue because "he would have been a loving, nurturing father given an opportunity."
A short time after Jan moved out of Louis' house around 1990, Jan moved to South Carolina and married Judy. Jan returned to Grand Island in 2005 and the two friends resumed their relationship with each other. Jan admitted he was having marital problems and "he got thrown out."
At Jan's family party late that summer, Louis met Judy for the first and only time. "Judy appeared and it was an interesting dynamic she wasn't in town very long. She came and had some score to settle with Jan", he said.
Louis elaborated on Jan's relationship with Judy:
"A. He was pretty tight-lipped about that. I know it wasn't pleasant, but I don't know specifics. I just know that she didn't want him around and he obliged her
Q. Did Jan ever describe to you any abuse, either physical or emotional, that Judy may have subjected him to during their marriage?
A. Do you want me to paraphrase or say it exactly like he said it to me?
Q. Say it exactly like he said it to you.
A. Said she was a drunk bitch.
Q. Okay. So Jan described to you a tendency for Judy to abuse drugs or alcohol?
A. Just drinking.
Q. Okay.
A. And he said that she would get nasty with him when she was drinking.
Q. Okay. That's the term he used, she would get nasty with him?
A. Yeah.
Q. Okay. But he never elaborated any further?
A. Not to my recollection.
Q. Okay. Did Jan at any point describe to you any desires that he might have had to reconcile with Judy?
A. No. I'd like to elaborate on that if I could.
Q. Sure.
A. He did express to me how he wished he had a family unit that was correct from the perspective he had in his mind. He was, to me, a person who longed for love and I could tell he wanted something that he realized wasn't going to happen and I believe that's the basis of him being tight-lipped. It just was painful for him."
Julie is Jan's younger sister by three years and she described her family as "very close-knit." Jan was born in 1961 and moved to California around the early 1980s to live with their father, where he stayed for a few years.
While in Orange County, California, Jan worked for his father's limousine company picking up stars from the airport for Universal Studios. At some point in the early 80's Jan had a girlfriend, Zoann, who became pregnant. The relationship was short-lived, Julie noted, because Zoann "was seeing other people."
Julie learned from her father that Jan may have had a child named Mickie. Jan never spoke of Mickie to her nor did he have a relationship with Mickie. Once, Jan did muse to her, however, that "he thought he had a child." After Jan died, Julie never found pictures, letters or any personal items concerning Mickie among Jan's possessions, nor were there any child support orders for him.
As Louis had also stated, Julie was convinced that, if Jan had had a child, he would have wanted to participate in the child's life.
Around 1987 Jan moved back from California to Western New York and briefly lived with their mother, Carole. Jan later moved to South Carolina to work with their father, who then was an entrepreneur building a restaurant there. At some point Jan met his future wife, Judy, in a bar, where they were married after dating for a short period of time. None of the family attended the ceremony. Julie believed that Judy assumed Jan was wealthy because their father was successful, and that this was the motivating factor in her marriage to Jan. Judy was significantly older than Jan, and only about six or seven years younger than their mother, Carole.
Jan and Judy lived together only a couple of years, and Jan told Julie that his wife was "abusive". Julie said Jan was "walking on eggshells around her [Judy]."
Judy threw Jan out of the home "many times", Julie stated:
"A. Well, I know one time he told me that she did throw all his clothes out and he was living in the back of his car for, I think, a week or so and then, you know, he kept trying to go back. I mean he just wanted to make it work and I think that he was not understanding that the whole marriage was a farce and I think that when my-you know, from what he told me, I feel as though he maybe knew that, but was too proud to say it so he kept trying to make it work because Jan was a very loyal person.
Q. Okay. And it finally got to the point where she threw him out one more time and then changed the locks, is that your -
A. Yep.
Q.- testimony ?
A. And that was it.
Q. And at that point did he go back to your dad's for a little bit down the street or he just came home to Buffalo?
A. He just came home to Buffalo.
Q. And showed up on your doorstep ?
A. Called me from a pay phone in Pennsylvania and told me that he needed a place to stay and he didn't have any clothes and he didn't have any money. And I said, well, get over here, let's go, come home.
Q. Okay. And then once he moved in with you, you then reestablished him with housing and food and clothing and everything that he would need?
A. Yes.
Q. And then once he got on his feet after that first year and a half, he was able to then secure employment and live with your mom and help with your mom's household?
A. Yes, he helped my mom a lot" (emphasis added).
Julie further described her perceptions of Judy and the abuse Jan endured while living with his wife:
" You know, she seemed put out that I would visit my brother, didn't really like that. It was just a very uneasy feeling when she was around. I think that if something didn't go her way that he would, you know, pay for it later on when we weren't there.
Q. What do you mean by that?
A. You know, not treat him right. I know she was abusive. He told me that.
Q. Okay. Well, let's talk about that, then. What type of abuse is it that Jan would describe to you ?
A. Just, you know, just how nasty she was, how she would make him sleep on the couch. You know, just stuff like that and-
Q. Take your time.
A. When he came back from there he had a scar on his forearm and I said to him, what the heck is that. That looks like a burn. And he told me that she burned him with her cigarettes.
Q. Did he say that that was a frequent occasion-or, strike that-a frequent occurrence?
A. That's all he said because I think he felt very ashamed. He was a very private person with regards to that because I think he felt-you know, he didn't want any of us to say, I told you so, because he just kept on going back for more and more and more and when he told me that, I just put my hand over the top of it and I said, that's okay, brother, `cause you're with me now. And that was the last it was spoken of" (emphasis added).
Judy had adult children from prior marriages whom Jan did not adopt. "[O]ne of them would come over to the house and rough my brother up sometimes," Julie said.
After Jan tragically died, Judy never came to the funeral, sent flowers or cards, or contacted the family in any way.
Carole, Jan's mother, called him "a good boy" and a "private guy", and they were very close. He lived with her throughout high school, then moved to California in the late 1970s-early 1980s to live with her ex-husband, who died a month before Jan.
Carole kept in constant touch with Jan while he was in California, and she heard "through the grapevine" (not from Jan) that he had a child there. She never met or had any communication with this alleged child.
As noted, Jan moved to South Carolina in the 1990s and married Judy. Carole only met Judy once when Judy came to Buffalo. "She was a mean girl," Carole said. Jan and Judy had no children together, and the couple had their final separation in 2005 and didn't reconcile before Jan died in 2018.
Michael is Jan's younger brother and testified about what he knew about Jan's alleged son and Jan's marriage.
Michael heard through his parents that Jan may have had a son, but Jan himself never spoke of this child to him. Michael never met or spoke to either the alleged child or to the girlfriend who bore the child. Everything was just "hearsay", Michael said. Jan would've been a "wonderful father" if he did have a child, Michael maintained.
Michael had lived with Jan while they both worked for their father in South Carolina, and he had met Judy a couple of times. After Michael left South Carolina, he heard that Jan and Judy had married. After Judy threw Jan out of the house a few times Jan "moved back to live with my mom and sister and me. We all took him in, you know, at different times to help him out when he needed help", Michael said.
Berkman recounted the efforts made to locate and cite both Mickie and Judy. She had contacted Mickie's mother, Zoann, to obtain his address and phone number, and even though he was cited in both the administration proceeding and in this pending compromise proceeding, he has consistently failed to appear personally or by counsel, nor has he contacted Berkman in any way. Berkman said her phone calls to him went to voicemail and weren't returned, and she also sent many letters to him.
Judy's whereabouts were unknown at the administration phase of this estate, but eventually she was located in South Carolina and was duly cited in this current proceeding. At one point Judy returned Berkman's call and confirmed that she and Jan were married in 1998, were not legally divorced, but that she never spoke to him again after 2005. She told Berkman that she was aware that Jan had died.
Judy also told Berkman that she had heard of a possible child Jan may have had while he was living in California, but Jan never paid child support or had any visitation from the child.
(B)
A surviving spouse has a right to share in the estate or wrongful death proceeds of the decedent unless it is satisfactorily established that the spouse abandoned the decedent and that the abandonment continued until the time of death (EPTL 5-1.2 [a][5]).
In Matter of Duplessis, 123 A.D.3d 927, 928 [2014], the Appellate Division, Second Department, restated the legal principles involved in a claim of abandonment:
"' more must be shown than a mere departure from the marital abode and a consequent living separate and apart. [T]he law has long required that one who seeks to impose such a forfeiture must, in addition, establish, as in an action for separation, that the abandonment was unjustified and without the consent of the other spouse' (Matter of Riefberg, 58 N.Y.2d 134, 138 [1983])" (see also, Matter of Maull, 161 A.D.3d 570 [2018]).
Carole, as the party alleging that Judy abandoned Jan, has the burden of proof on this issue (Matter of Maiden, 284 NY 429, 431 [1940]). The proof submitted at the hearing and uncontroverted by Judy, who has failed to appear in this proceeding, establishes that Jan tried many times to return to the family home to reconcile with his wife but was repeatedly thrown out of the house, leaving him without clothes, money or lodging. Judy also subjected Jan to physical abuse by burning his arm with cigarettes. Jan's departure from the marital home was forced upon him by Judy and by her unjustified conduct, it was without his consent, and it culminated in a separation from his wife (to which he did not acquiesce) from at least 2005 until his death.
It further appears that Judy herself acknowledged that her marriage to Jan no longer existed in her eyes, as Berkman testified:
"I also sent kind of a cold letter out to Judy Price Wilde. She did call me back and that was in June 2020, at which point, you know, I don't represent her, so the conversation was very short, but she did confirm that, you know, she was married to Jan from roughly 1998 to 2005. She indicated they had never gotten a divorce, but she had never spoken to him since 2005 and she was aware of the death." (emphasis added).
(C)
Carole has submitted a response from the New York State Putative Father Registry which states that Jan is not registered. She also requested proof of Mickie's birth from the Orange County, California, Clerk-Recorder, but no record existed for the name "Mickie Elliott Wilde."
The guardian ad litem for unknown heirs recommends that the class of issue be closed, that Judy be disqualified as a surviving spouse from inheriting from Jan's estate due to abandonment, and that the net proceeds of the wrongful death action be paid to Jan's mother, Carole.
Therefore, based on the credible and uncontroverted testimony of the witnesses as well as the documentary proof adduced, I find that Carole has met her burden of proof, and that Jan's wife, Judy, is disqualified under EPTL 5-1.2[a][5] from receiving any share of Jan's estate or any distribution from the wrongful death settlement due to her abandonment of Jan (which continued until the time of his death).
I note in passing that, even if Judy were not disqualified as a "surviving spouse", she still could not take a share of the wrongful death proceeds because there is not a shred of proof that she sustained any "pecuniary injur[y]" as a result of Jan's death (see generally EPTL 5-4.4[a][1]).
I also find that Mickie has not established his status as Jan's non-marital son, nor had Jan openly and notoriously acknowledged Mickie as his child (see EPTL 4-1.2[a][2][c]). I further find that Jan had no other biological or adopted children and that the class of issue is closed.
Thus, Jan's mother, Carole, is entitled to the entire balance of the wrongful death proceeds pursuant to EPTL 5-4.4(a), as well as any estate assets that he may have.
Finally, I find that the guardian ad litem's written fee application for $3500.00 is fair and reasonable under all the circumstances of this case. The fee request has not been objected to by any of the parties, it is hereby approved, and it shall be paid within 20 days of the date of this Order.
This decision shall constitute the Order of this Court and no other or further order shall be required.