Opinion
93791/04.
Decided April 4, 2005.
Eli B. Basch, Esq., Basch Keegan, LLP, PO Box 4235, 307 Clinton Avenue, Kingston, NY 12402, Attorneys for Petitioner.
James A. Carlucci, Esq., 21 N. 7th Street, Hudson, NY 12534, Attorney for Cross Petitioner.
Herbert R. Runyon, IV died intestate on August 19, 2004 at the age of 20. He was survived by his parents. They are his distributees pursuant to EPTL § 4-1.1(a)(4). The only "asset" with potential ramifications is an anticipated action grounded in wrongful death and conscious pain and suffering.
The parents were divorced in 1990. They have filed competing petitions for letters of administration. The court conducted a hearing regarding the issue of eligibility to receive letters on March 31, 2005.
The parents and the law guardian for the Runyon children, which includes the decedent, testified at the hearing. I had the unique opportunity to assess their demeanor, character and probity. The certainty of words always depends upon the integrity of the speaker. I resolve all issues of credibility in favor of the mother and the law guardian.
The order of priority for granting letters of administration is set forth in SCPA § 1001. Pursuant to subdivision (1)(d) the court may appoint the mother or the father. No distinction is made between the custodial and non-custodial parent. ( 2 Warren's Heaton on Surrogate's Courts, 6th Ed Rev § 35.03[4].) The court, therefore, may exercise its discretion in this category based upon the facts presented. ( 2 Warren's Heaton, supra; In re. Billig, NYLJ 03/18/02 at 28, col. 1 [Sur. Ct., Westchester County].)
The evidence indicates that the decedent resided with the mother his entire life. The mother has no criminal record. The law guardian testified that he represented the Runyon children for seven years starting in 1996. He indicated that the relationship between the mother and father was one of the most contentious and acrimonious he had ever witnessed in the eighteen years he has served as a law guardian. The decedent did not want to have contact with the father according to his testimony and only saw him a few times. The law guardian also noted that the father was directed to refrain from filing any new petitions in the Dutchess County Family Court without the express permission of the Court. This fact is documented in petitioner's exhibit 1 in evidence. It shows that the father was enjoined from filing any new pro se Family Court petitions without the Court's or the Administrative Judge's permission.
The evidence indicates that the father filed a petition in Family Court on February 5, 2003 in an attempt to have his child support obligation reduced. One of his claims was the decedent's refusal to visit with him. The mother testified about the longstanding bitter relationship she has had with the father since their divorce fourteen years ago in explicit yet resigned fashion. She testified to having no fight left in her to deal with her former husband.
The father admitted he and the mother have had an extensive history of litigation in the Family Court. He claimed without foundation that their relationship has improved since May, 2003 after a stipulated agreement was achieved in the Family Court. The father had limited contact with the decedent after his son turned 18 on January 21, 2002. For example, all telephone calls between them were initiated by the father. He spoke in general terms about in person visitation at various times.
The father admitted to having two criminal convictions. The first was for trespass in 1995, and the second was for criminal contempt in 1998.
The father testified without foundation that the decedent died owning an automobile, tools, computer and sports memorabilia. He offered no documentation in support of his testimony that he established an account in the name of the decedent and that its balance was approximately $5,000.00 on August 19, 2004.
The only reason advanced by the father to receive letters was his desire to find out the cause of his son's death on August 19, 2004.
SCPA § 707 addresses itself to whom letters may issue. The record does not reveal whether the father's conviction for criminal contempt was a class A misdemeanor [Penal Law § 215.50] or class E felony [Penal Law § 215.51]. If it is the latter, he is automatically ineligible by virtue of SCPA § 707(1)(d). The fact, however, that there are two convictions, along with an order from the Family Court preventing him from filing any further pro se petitions without permission, together with believable testimony that the decedent did not want to see his father for an extended period of time, that the father attempted to be relieved of his child support obligation as to the decedent relying upon his son's recalcitrance to visit with him as the reason, and the irrefutable evidence of the unabated hostility between the parties sustains a finding that the court should exercise its discretion and decline to appoint the father as a fiduciary. SCPA § 707(1)(e).
The only potential asset of this simple estate are the funds derived from a possible wrongful death action. The mother appears to have the overall competency to administer the affairs of the decedent and to represent the distributees' interests. In re. Billig supra. Under these circumstances, she may serve as administratrix.
The mother's petition is granted in its entirety. The father's cross petition is dismissed. The administratrix is restrained from the compromise of any action or the enforcement of any judgment recovered therein until further order of the Court. She may serve without bond.
Counsel for the mother is directed to submit a decree on notice consistent with the foregoing within ten days from the date of this decision.
This decision constitutes the decision of the Court.