K.A.L. ex rel. S.S.P. v. R.P.
| Decision Date | 19 March 2012 |
| Docket Number | No. 1114541.,1114541. |
| Citation | 950 N.Y.S.2d 723 |
| Parties | K.A.L. o/b/o S.S.P., Plaintiff, v. R.P., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Marilee Sercu, Esq., for Plaintiff E.J.L., II.
Michael Hagelberg, Esq., for Defendant K.L.L.
The Plaintiff seeks to annul the marriage of her deceased father, in a dispute linked to the surviving wife's right of election under Florida law. The surviving spouse, who married the plaintiff's father on his death bed, seeks dismissal of the complaint, alleging that the daughter lacks standing to annul the marriage and fails to state a cause of action for either physical or mental incapacity or fraud or duress to void the marriage under New York's Domestic Relations Law.
The essential facts are undisputed. The couple were married on August 31, 2011 in a civil ceremony in the spouse's home in Webster, New York. The husband died thirteen days later, on September 13, 2011. The wife was 48. The husband was 69 and suffering from lung cancer.
The couple had known one another for a long time prior to the marriage. The daughter describes the relationship as “on and off again.” The wife calls it a twenty year “emotional” and “intimate” relationship. The two lived apart: the wife lives and has lived in Rochester and the proof suggests that, prior to the marriage, she only infrequently visited the husband in Florida, where he was a permanent resident until May 2011. In May of that year, the husband was diagnosed with stage-four lung cancer that had spread to his brain. After undergoing brain surgery to remove a tumor in Florida, the husband returned to Rochester, where both his daughter and the Defendant reside. The parties agreed that he would stay at the defendant's home while in Rochester and the proof is unrebutted that he lived in the defendant's home from his arrival in the Rochester area until his death. During this time, the wife was not working, but the daughter alleges that most of the decedent's care was administered by members of his family while he was living with the wife prior to the marriage.
It is undisputed that on August 26, 2011, the daughter and the wife were told by his attending physician that the decedent had two weeks left to live. On or around that date, the decedent's doctor ordered palliative hospice care for the decedent, tripling his pain medication and ending all other medication, including insulin.
On August 31, 2011, two major events occurred: the wedding between the decedent and the defendant, and the signing of a codicil to the decedent's will.
There is no dispute that a marriage ceremony occurred in the defendant's house on August 31, 2011, at approximately 5:30 pm. However, in an unusual twist, there is no evidence before this court in the submissions to prove the existence of the marriage. There was no marriage license submitted in the moving papers. The wife, in her affidavits, alleges that she had arranged for the town clerk to come to her house to issue the license. The daughter denies any knowledge of the issuance of the marriage license. There is no affidavit from the presiding justice, who, it is undisputed, officiated at the marriage. There are no affidavits from any of the witnesses to the marriage: just the affidavit from the spouse, asserting that a wedding ceremony occurred. But, these affidavits appear unnecessary for the wife to establish that a marriage ceremony occurred as the daughter does not contest that a marriage ceremony occurred. It is also undisputed that the decedent's son—the daughter's brother—attended the ceremony. There is no affidavit from the brother before the court.
It is also undisputed that the daughter objected to the marriage ceremony. In her affidavit, the daughter alleges that her father told her on the day of the wedding that he was not getting married. The daughter asserts that the defendant then met with the father and he then told the daughter that he wanted to marry the defendant because “she wants to be able to say she married the greatest man on the planet.” It is also undisputed that the daughter sought to stop the wedding. She attests, in her rebuttal affidavit, that she spoke with the town justice before he entered the house and told him “it was not appropriate and that my father had no idea what was going on.” The town justice ignored the daughter. The daughter states that she tried to stop the wedding numerous times—apparently in the presence of her father—but “did not want to cause more stress on my dying father.” The daughter also alleges that she made her feelings “very clear” to the wedding participants and the witnesses, which presumes she was present when the wedding occurred or just prior to it. The daughter acknowledges that she left her father's bedroom just prior to the wedding occurring. Based on these facts, the court can only conclude that the daughter was present in the house when her father married the defendant.
Importantly, there is no evidence before the court that the daughter talked to her father after her father told that he wanted to marry the defendant. The daughter alleges that he was under substantial pain medication and did not recognize other family members on or about the time of the wedding.
It is undisputed that the husband executed a codicil on that day, although the parties disagree on whether it preceded or followed the marriage ceremony. According to documents before this court and based on the uncontradicted statement from the daughter, the will was overseen by an attorney, who the wife describes as “my attorney .” 1 The wife's attorney interviewed the decedent. There is no affidavit before the court from the attorney indicating the nature of the attorney's observations or his colloquy with the decedent. However, the decedent signed the codicil in front of three witnesses. In the codicil, the decedent named the wife's husband as the executor of his estate and listed a child, who was not provided anything under the will or codicil. the decedent swore that he was acting freely and voluntarily and was “sound mind” and “under no constraint or undue influence.”
All three witnesses to the codicil were present in the room in the defendant's house, presumably for some amount of time. The witnesses included decedent's son-in-law, the husband of the plaintiff. A second witness was a close friend of the decedent's for 60 years. The witnesses signed an attestation clause in the codicil, affirming that to the best of their knowledge, the decedent was of sound mind and under no constraint or undue influence. The attorney notarized their signatures.
Based on this information, offered by the plaintiff, there is no dispute that the decedent was of sound mind and free from any constraint or undue influence at the time of the execution of the codicil—which, based on undisputed facts, was all—but simultaneous with his marriage.
In the papers before the court, the only major dispute involves the father/husband's physical condition at the time of the marriage. The parties quibble over who told what to whom and when-was the marriage scheduled before the codicil signing or vice versa-but the court declines to consider this irrelevant question.2
The Plaintiff contends that the decedent was incapable of consenting to marriage for want of understanding, due to his advanced lung cancer, which had spread to the brain, and to the high amounts of pain medication he was taking at the time of the marriage. In support of her claim, she has submitted corroborating evidence in the form of sworn statements by relatives and close friends of the decedent, which allege episodes of confusion and disorientation on the part of the decedent around the time of the marriage.3 The Plaintiff alleges, for example, that the decedent did not recognize his granddaughter on the day of the wedding, and consistently called her by the plaintiff's name instead of her real name. She also alleges that, on the day of the wedding, the decedent was unable to form complete sentences, was unresponsive to questioning, and was unaware of his surroundings. During this time she alleges that he confusedly said first that he would never marry the defendant, and then that he would marry her.
The plaintiff also alleges that the defendant, on the day before the wedding, intentionally gave the decedent medications that the doctor had ordered be stopped, namely steroids and insulin injections. She alleges further that the decedent had explicitly warned the plaintiff to protect his personal belongings and paperwork from the defendant, and to protect herself from the defendant.
The wife disputes this evidence. However, neither party has produced any medical or other expert testimony regarding the decedent's health. The wife argues that the presiding judge at the wedding and the attorney overseeing the codicil are, by their participation, evidence that the husband was competent to marry her, even though there is no sworn statement from either professional before the court. The daughter's counsel, at oral argument, informed the court that the daughter was not able to obtain medical records for her father because she lacked a medical release form under Health Insurance Portability and Accountability Act (“HIPPA”). The wife's counsel did not dispute that the records had not been made available to the daughter.4
In reviewing this matter, the court notes that it is somewhat unclear on what basis on which the parties are moving for relief. The plaintiff seeks an order directing that the marriage be declared a nullity, which can only be considered a pre-answer application for summary judgment pursuant to CPLR 3212. While not specified, the defendant is apparently moving pursuant to CPLR 3211(a)(7) as she claims that the complaint fails to state a cause of action. The standards for review by this court on both...
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