In our first writing on this subject we committed to following Matter of Martirano, 2019 NY App Div LEXIS 3716 (3d Dept 2019), if it made its way to the Appellate Division. In a nine page Memorandum and Order dated May 9, 2019, the Third Department reversed the Surrogate. (Matter of Martirano, 2019 NY App Div LEXIS 3716 [3d Dept 2019]).
The Appellate Division revisited the Surrogate’s determination which granted the mother’s motion for summary judgment dismissing her son Michael’s petition and his objections to probate of her son Christopher’s will. We will not recite the facts again, except to the extent that the Appellate Division has mentioned more facts than what we learned from the decision below.
The will in question was executed three days before the decedent’s death. He left the bulk of his estate to Nikko Cruz and Dennis Helliwell, his friends and employees of his cleaning business. Unfortunately for them, they also witnessed the will and in a prior determination the Surrogate determined that the dispositions to them were void and that the dispositions were to pass through intestacy.
We also learn from the Appellate Division’s order that decedent’s will named Helliwell as executor; however due to a prior felony conviction, he was disqualified and Cruz was appointed as the named alternate executor. Later the court considered an application by decedent’s brother to revoke preliminary letters granted to Cruz, which, after a hearing, resulted in the court imposing restrictions on Cruz’s authority.
In the instant posture, the Surrogate had pending a motion for summary judgment made by the decedent’s mother seeking to dismiss the probate petition filed by her son Michael, together with a cross motion for summary judgment made by her son Michael on his petition. The determination was that the son failed to meet his burden demonstrating that their mother had abandoned and/or failed to provide for the decedent, and the court granted the mother’s motion dismissing the son’s petition. The son appealed.
Although the Appellate Division found no error with the ruling of the Surrogate’s Court as to the admissibility of the Catholic Charities records, it reversed the Surrogate finding that neither the mother nor the brother met their prima facie burden of establishing, as a matter of law, their entitlement to summary judgment on the issue of whether the mother had voluntarily abandoned decedent or failed to provide for him.
On the ground of alleged abandonment, the court found that although the mother claimed that she never intended to voluntarily abandon decedent, the court found that there is a triable issue of fact as to whether her efforts to maintain a relationship with decedent during his childhood were sufficient to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child.
On the ground of alleged lack of financial support, the court likewise found a question of fact as to whether the mother had the financial means available to provide for the decedent and failed to do so.
What struck us on reading the determination of the Surrogate below was that the parent had prevailed where many parents in these cases do not. Why did the Appellate Division reverse?
First, on the issue of abandonment, it is not enough for the parent to simply allege an intention never to voluntarily abandon the decedent. The stated intention must be corroborated by competent proof. The parent must set forth her efforts to maintain the relationship with the decedent in detail, with factual specificity, and offer precise dates. Here, the mother’s showing was criticized by the Appellate Division for her inability to aver specific facts. For example, the court found numerous inconsistencies in her deposition and an affidavit as to dates. Further, the court was troubled by her inability to state how many times she had visited the decedent over a period of about 8 years. As well, the court did not favor her inability to provide details as to the extent and quality of her visitations. Additionally, it found contradictions in her averments of visitations that were not corroborated by her son.
We see this as instructional. A parent in this position would be well advised to pursue production of telephone records, bills, credit card statements, travel tickets and perhaps available receipts for expenses. Documentary evidence that demonstrates that an effort, even if modest or small by general standards will help. If the child intermittently resides with the parent, records pertinent to health, school or childcare could be produced. Records from foster care or an agency can help too. Another avenue toward developing this proof would be production of affidavits from other witnesses corroborating interaction between the parent and child. Where the parent has poor or no records, counsel should immediately initiate third party discovery utilizing subpoenas and depositions in order to assemble the required proof either to move or survive a motion for summary judgment.
The court found a question of fact on the issue of financial support as well. The deficiency with her proof on the motion was that she failed to put sufficient evidence into the record with respect to the “status of her finances”. Apparently, she affirmatively demonstrated to the court that she had given birth to four children before the age of 21 and received public assistance for a time. Perhaps she mistakenly concluded that this proof was sufficient and that the court would simply presume her inability if she characterized her position as impoverished. It appears that in her deposition she conceded that while decedent was in foster care for 14 years, she did not provide for him other than with unspecified cash gifts. She also conceded that had she obtained custody of him she would have been able to provide for him because “[they] always made due”. The court seemed troubled more by the fact that she offered no evidence of her employment or ability to work coupled with an admitted lack of public assistance for a period of time where her husband was employed and they adequately provide for their other children and covered other expenses including travel costs to visit family.
Clearly, the Appellate Division rejected the characterization of finances approach here. The decision makes apparent that in order to succeed the parent is well advised to lay out her financial condition as if under a microscope. It is not sufficient to address income or expenses alone. The parent had better offer competent proof demonstrating income, expenses, and assets and address financial opportunities or abilities with detail. Clearly the court is examining the alleged lack of financial means at an overall level as well as in particular with respect to the individual parent’s own personal circumstances.