Opinion
253-A/07.
Decided July 26, 2010.
Robert Blossner, Esq., for Jannae Chatham, petitioner/mother.
Bruce S. Reznick, P.C., for Olivia Richard Adams, the administratrix of the estate of the decedent's post-deceased father.
Eileen M. Mentone, Guardian Ad Litem for unknown distributees.
The decedent's mother, the administratrix of his estate, petitioned to compromise causes of action arising from the decedent's death, disqualify the estate of the decedent's post-deceased father from sharing in the recovery based on abandonment and failure to support the decedent (see EPTL 4-1.4 [a] [1]; EPTL 5-4.4 [a] [2]), and to judicially settle her account. The court appointed a guardian ad litem for unknown heirs who filed objections on their behalf and on behalf of an alleged child of the decedent's post-deceased father. Subsequently, the father's surviving spouse obtained counsel and filed objections.
Although the petitioner's statement of issues framed the issue for trial differently, at a pretrial conference, the parties narrowed the issue solely to abandonment and, thereafter, the issue of abandonment was tried before the court, without a jury. In their post-trial memoranda of law, the parties address the abandonment issue and resurrect the issue of a failure to support the decedent.
The petitioner testified on her own behalf and called three witnesses: Sarah Johnson, a close family friend who the petitioner referred to as "Aunt Sarah," and Sarah Johnson's two children, Stephanie Miller Johnson and Cynthia Hinds. The witnesses for the objectants were the spouse and sister of the post-deceased father, Olivia Richards and Patricia Pryor, respectively.
During the petitioner's case-in-chief, her testimony and that of her three witnesses was similar. The decedent was born on July 3, 1977 and died on October 5, 1992 at the age of 15. The father post-deceased on June 30, 1994. Although the father's name does not appear on the decedent's birth certificate, it is undisputed that the decedent was his child and, at birth, received his given name. The petitioner and Sarah Johnson both testified that on the day of the decedent's birth, the then 17-year-old petitioner and Johnson passed the father on the street while on their way to the hospital and, when they told him that the petitioner was about to give birth, he responded "good luck."
The parties disputed the period of time after the decedent's birth that the petitioner and the father lived together, with the petitioner claiming it was for a month or two and the father's sister claiming it was for a year or two. The petitioner testified that shortly after the decedent's birth, she tried to establish a household with the father but he was largely absent from their home and, therefore, she and the decedent returned to live with her mother. Thereafter, the petitioner moved to various locations in the Bronx and she conceded that she never specifically told the father where she lived. Nonetheless, the entirety of the testimony at the hearing demonstrated that the father could have located the residence of the petitioner and the decedent easily, as the petitioner's mother, the father's mother and Sarah Johnson all knew one another from the neighborhood and church. In fact, Sarah Johnson and the father's mother lived one building away from one another.
The petitioner requested nominal monetary support from the father on only one occasion, when she sought assistance with the cost of the decedent's daycare during a time when the petitioner worked during the day and attended college at night. On that occasion, the father refused to contribute, so the petitioner never asked him for money again. Cynthia Hinds and Stephanie Johnson added that during the decedent's early years, they often saw the father in the neighborhood and on more than one occasion asked him why he did not help the petitioner and the decedent. From time to time during the decedent's infancy and pre-teen years, the decedent, while walking with the petitioner or others, most frequently the petitioner's mother, would pass by a Seventh Avenue street location in Harlem where the father tended to "hang out" and, on those occasions, there was interaction between the decedent and his father. When the decedent reached the age of 12 or 13 years, he went independently to the Seventh Avenue street location to visit his father. A day or two after the decedent was fatally injured, the petitioner saw the father on the street and advised him of the decedent's condition; thereafter, it appears that the father visited the decedent in the hospital until the decedent's death.
Pryor testified on behalf of the objectant that during the first year or two of the decedent's life she saw the decedent and her brother together "weekly" and they were always affectionate toward one another. She also stated that during those years the petitioner's mother brought the decedent to the Seventh Avenue street location where the father could be found. On those occasions, Pryor saw the father give the decedent's maternal grandmother undisclosed sums in cash and purchase sneakers and shirts for the decedent. She also testified that when the decedent reached the age of 12 or 13, he visited his father independently at the Seventh Avenue street location.
Pryor did not know whether the father knew or had the ability to know where the petitioner and the decedent lived. Pryor stated that the father's salary was garnished to provide support for the decedent's half sister, and conceded that the father never provided financial support voluntarily for that child or the decedent. Upon learning that the decedent was injured, Pryor also visited him in the hospital before his death.
In post-trial memoranda of law, the petitioner argues that the evidence demonstrates overwhelmingly that the father is disqualified from sharing in the decedent's estate as he failed to support and abandoned the decedent. In support, the petitioner notes that the occasional gifts of undisclosed amounts of money and clothing items do not constitute support, and abandonment was demonstrated by the lack of any meaningful contact between the decedent and the father other than occasional street visits. The objectant counters that the petitioner failed to meet her burden of proving abandonment and failure to support in light of the evidence of the regular street encounters between the decedent and his father, and the money and clothing provided by the father to the maternal grandmother for the decedent. The objectant contends that there was a loving father/son relationship and it was the petitioner who tried to thwart that relationship by failing to keep the father informed about the decedent's whereabouts and involved in the decedent's life.
Pursuant to EPTL 4-1.4 (a) (1), a parent may be disqualified from sharing in the estate of a deceased child where the parent, while the child was under the age of 21, either failed or refused to support the child or abandoned the child (see EPTL 4-1.4 [a] [1]; Matter of Wigfall, 20 Misc 3d 648, 651; Matter of Emiro, 5 Misc 3d 1002 [A], 2004 NY Slip Op 51149 [U]; Matter of Gonzalez, 196 Misc 2d 984, 987). As the statutory criteria of EPTL 4-1.4 is set forth in the disjunctive, proof of either will result in disqualification of the parent (see Matter of Wigfall, 20 Misc 3d at 651; Matter of Emiro, 5 Misc 3d at 1002 [A] supra). The disqualification extends to sharing in the settlement proceeds allocated to the cause of action for the decedent's wrongful death (EPTL 5-4.4 [a] [2]; Matter of Emiro, 5 Misc 3d at 1002 [A] supra), and sharing in those proceeds allocated to the cause of action for the decedent's conscious pain and suffering (see EPTL 4-1.4 [a] [1]; Matter of Pessoni, 11 Misc 3d 245, 248-249; Matter of Emiro, 5 Misc 3d at 1002 [A] supra). The obvious intent and purpose of EPTL 4-1.4 is to prevent a parent, who has been no part of the child's life, from showing up to share the spoils of the child's death (see Matter of Pessoni, 11 Misc 3d at 250).
The petitioner has the burden of proof on the issue of abandonment and failure to support (see Matter of Wigfall, 20 Misc 3d at 651; Matter of Gonzalez, 196 Misc 2d at 984). Proof of abandonment must amount to a voluntary breach or neglect of the duty to care for and train a child and of the duty to supervise and guide the child's growth and development (see Matter of Wigfall, 20 Misc 3d at 652; Matter of Pessoni, 11 Misc 3d at 247). Neither insubstantial or infrequent visits or communications by a parent with the child, nor the subjective intent of the parent, are sufficient to preclude a finding of abandonment (see Matter of Gonzalez, 196 Misc 2d at 987).
Here, the court credits the testimony of the petitioner and her witnesses that, for a short period of time, the petitioner attempted to create a home for the newborn decedent with the father, but the father was rarely at that home and, therefore, the petitioner and the decedent returned to live with the maternal grandmother. The subsequent visits and contacts between the father and the decedent in the early years of the decedent's life were sporadic, happenstance and occasional, in that they were totally dependent on whether or not the decedent, accompanied by the petitioner, his maternal grandmother or others, happened to walk by the area on Seventh Avenue at a time when the father was "hanging out" there. The record is devoid of any evidence that the father participated in the supervision, training and education of the decedent. Although the objectant surviving spouse contends that the petitioner thwarted any interaction with the decedent by failing to advise the father of where she and the decedent lived, there is ample evidence that the father had the means available to him to learn where the petitioner and the decedent lived, but apparently never attempted to do so. Finally, the fact that the decedent himself visited the father at the Seventh Avenue location when the decedent was able to do so independently at the age of 12 or 13 years, fails to establish any assumption of the requisite parental duties by the father. In sum, and contrary to the objectant's contentions, there is no evidence that the petitioner denied access to the decedent or prevented the father from gaining access to the decedent as to preclude a finding of abandonment (cf. Matter of Ball, 24 AD3d 1062).
Despite the evidence that the father and the decedent were affectionate toward one another, the petitioner proved that, except for sporadic, happenstance street meetings, the father never made any effort to be a regular part of the decedent's life and, instead, had "insubstantial and infrequent contacts" with the decedent, warranting a finding of abandonment (see Matter of Gonzalez, 196 Misc 2d at 987; see also Matter of Emiro, 5 Misc 3d at 1002 [A] supra). The parent's duty to care for or train a child and to guide the child's growth and development requires substantially more than "shooting the breeze" with the child and perhaps, giving him a few dollars when by chance he happens to pass by the corner that the parent frequents on a regular basis. A parent, who never initiated any plan so that he could be involved with the decedent's life or even to provide a venue or a method by which the decedent could communicate with him on a regular basis, cannot complain that he is not permitted to share in any proceeds arising from the circumstances leading to the decedent's death. Accordingly, the father is disqualified from sharing in the settlement proceeds regardless of whether they are allocated to wrongful death or conscious pain and suffering (see EPTL 5-4.4 [a] [2]; EPTL 4-1.4 [a] [1]).
Although in view of this determination, the court need not address the resurrected alternative theory of disqualification based on the failure of the father to support the decedent (see Matter of Wigfall, 20 Misc 3d at 651; Matter of Emiro, 5 Misc 3d at 1002 [A] supra), he would be disqualified on this ground as well. The evidence establishes that, at best, the father provided minimal, undisclosed sums of cash and items of clothing to the decedent or his maternal grandmother on sporadic, infrequent occasions. Patricia Pryor admitted during her testimony that the father did not voluntarily pay support for either the decedent's half sister or for the decedent. Accordingly, the petitioner also proved that the father is disqualified from sharing in the decedent's estate based upon the father's failure to support the decedent while the decedent was under the age of 21 years (see EPTL 4-1.4 [a] [1]; EPTL 5-4.4 [a] [2]; Matter of Baecher, 198 AD2d 221).
In light of the consent of the New York State Department of Taxation and Finance, the absence of any unsatisfied debts or liens presented herein and it appearing that the decedent never regained consciousness after being mortally injured, the court grants the petitioner's request to allocate the settlement proceeds solely to the wrongful death cause of action. Attorney's fees may be paid in the amount requested, and counsel has waived disbursements. The net distributable proceeds shall be paid to the petitioner.
Settle decree.