In the Matter of Estate of Ball

• Citation: 807 N.Y.S.2d 163,24 A.D.3d 1062,2005 NY Slip Op 09786
• Decision Date: 22 December 2005
• Docket Number: 97667.
• Parties: In the Matter of the Estate of LUKAS N. BALL, Deceased. ANGELA BALL, Respondent; JAMES L. HARRIS, Appellant. (And Another Related Proceeding.)
• Court: New York Supreme Court Appellate Division

24 A.D.3d 1062

807 N.Y.S.2d 163

2005 NY Slip Op 09786

In the Matter of the Estate of LUKAS N. BALL, Deceased ANGELA BALL, Respondent; JAMES L. HARRIS, Appellant. (And Another Related Proceeding.)

97667.

Appellate Division of the Supreme Court of the State of New York, Third Department.

December 22, 2005.

Appeal from an order and decree of the Surrogate's Court of Tompkins County (Rowley, S.), entered April 5, 2004, which, inter alia, adjudged decedent's father to be disqualified from taking an intestate share of decedent's estate.

PETERS, J.

Petitioner and respondent are the nonmarital parents of decedent (born in June 2001) who died in February 2003 while in daycare. Both parents applied for limited letters of administration to commence a wrongful death action. Petitioner objected to respondent's petition alleging, among other things, that he should be disqualified from taking an intestate share of decedent's estate either because of his abandonment of the child or his failure to provide him with adequate support. Respondent also sought petitioner's disqualification but later withdrew his objection. After motions for partial summary judgment were denied by Surrogate's Court, an evidentiary hearing resulted in respondent's disqualification. Respondent appeals.

Pursuant to EPTL 4-1.4 (a), "[n]o distributive share in the estate of a deceased child shall be allowed to a parent who has failed or refused to provide for, or has abandoned such child" (see Matter of Brennan, 169 AD2d 1000, 1000 [1991]; see also Matter of Arroyo, 273 AD2d 820, 820 [2000], lv denied 95 NY2d 763 [2000]).¹ On the issue of a duty to support, established precedent analyzes that obligation in accordance with Family Ct Act § 413 by determining whether respondent had the means to support the child and failed to do so as compared to a "mere[] unwilling[ness] to perform the[] parental obligation[]" (Matter of Emiro, 5 Misc 3d 1002[A], 2004 NY Slip Op 51149[U], *6; see Matter of Brennan, supra at 1000-1001; Matter of Gonzalez, 196 Misc 2d 984, 987 [2003]). On the issue of abandonment, however, the standard is less certain. A parent may be disqualified under EPTL 4-1.4 (a) if that parent "neglect[ed] or refus[ed] to fulfill the natural and legal obligations of training, care and guidance owed by a parent to a child" (Matter of Arroyo, supra at 820; see Matter of Guilianelli, 7 Misc 2d 171, 173 [1957]; Matter of Musczak, 196 Misc 364, 365-366 [1949]).²

Here, testimony revealed that petitioner notified respondent of her pregnancy in October 2000, which was at the end of their four-month casual relationship. Respondent doubted that decedent was his child due to petitioner's behavior, his previous inability to conceive a child with his ex-wife and his prior exposure to radiation. After an angry conversation with petitioner near the time that she informed him of her pregnancy, he ceased contact as she had requested. When decedent was born in June 2001, petitioner did not list respondent, or anyone else, as the father either on the birth certificate or the Medicaid application. Six months after decedent's birth, respondent was notified of the birth by counsel for petitioner. Respondent immediately called petitioner, set up a visit and saw decedent within days; it is undisputed that respondent gave petitioner money at that visit.³ Thereafter, respondent independently initiated contact with the Seneca County Department of Social Services to enable decedent to receive disability benefits due to respondent's status. To trigger decedent's immediate entitlement, respondent admitted his paternity. This resulted in two payments totaling more than $3,000 and scheduled payments of approximately $240 a month. Moreover, in connection with petitioner's application for child support, respondent voluntarily gave a blood sample to establish his paternity. He saw the child a second time in June 2002 and gave petitioner money at that visit and one time thereafter before the order of filiation was entered on July 26, 2002 confirming his paternity. Thereafter, a minimal order of support was entered which was consistently paid by respondent.

Respondent claims that he made no less than eight phone calls between the first and second visit to set up additional visitation, which petitioner refused either out of a lack of trust of him, his new girlfriend, or upon it being conditioned to the provision of additional money; petitioner confirmed that respondent made some calls, but claimed that he never "ma[de] a direct point to ask to see [decedent]." Petitioner commenced a custody proceeding in June 2002 and respondent filed a cross petition for custody in September 2002. In that petition, before this proceeding could even be conceptualized, respondent alleged that he did not know of the child's birth until January 1, 2002, that petitioner has refused him access and that he was ejected from petitioner's life in 2000.

Respondent further testified that to facilitate visitation with decedent, he invited petitioner to inspect his home and meet his fiancée, but she refused. He also offered to babysit decedent during the day as an alternate to daycare. The visitation petition was settled with petitioner having sole custody and respondent having visitation as they agreed. From the entry of that order until decedent's death, however, no visitation occurred. Respondent testified that this was despite his efforts, and that he intended to re-petition Family Court, as he was told to do, if the visitation did not work out within a six-month period. Finally, respondent admitted to receiving a workers' compensation...