Tovstorog v. Grapsas (In re Estate of Bennoon)

• Decision Date: 20 June 2014
• Docket Number: No. 1–12–2224.,1–12–2224.
• Citation: 13 N.E.3d 236
• Parties: In re ESTATE OF Carmel BENNOON, Decedent (Tatyana Tovstorog, Petitioner–Appellant, v. Nicholas G. Grapsas, Public Administrator of Cook County, Respondent–Appellee).
• Court: United States Appellate Court of Illinois

13 N.E.3d 236

In re ESTATE OF Carmel BENNOON, Decedent (Tatyana Tovstorog, Petitioner–Appellant,

v. Nicholas G. Grapsas, Public Administrator of Cook County, Respondent–Appellee).

No. 1–12–2224.

Appellate Court of Illinois, First District, Sixth Division.

June 20, 2014.

Thomas G. Gardiner and Michelle M. LaGrotta, both of Gardiner Koch Weisberg & Wrona, and Robert J. Ralis, both of Chicago, for appellant.

Arnstein & Lehr LLP, of Chicago (Hal R. Morris, Michael A. Aramson, Colleen A. Chinlund, and Katelyn R. Letizia, of counsel), for appellee.

OPINION

Justice HALL

delivered the judgment of the court, with opinion.

¶ 1 Petitioner Tatyana Tovstorog filed a motion to amend heirship in the estate of Carmel Bennoon. Following a hearing, the circuit court of Cook County entered an order denying the motion to amend heirship. The petitioner appeals, contending that: (1) the trial court erred when it found respondent Nicholas G. Grapsas', the public administrator of Cook County, expert witness qualified to render an opinion on genealogy; (2) the court erred when it denied comity to an order from the Ukrainian court; (3) the court erred when it denied the petitioner's motion to reopen proofs; (4) the denial of the motion to amend heirship was against the manifest weight of the evidence; and (5) the court erred when it denied the petitioner's motion for rehearing or, in the alternative, reconsideration of the order denying the motion to amend heirship.

¶ 2 Having reviewed the record and considered the authorities relied on by the parties, we conclude that the trial court's rulings were not erroneous, and the decision to deny the motion to amend heirship was not against the manifest weight of the evidence. The facts pertinent to the issues on appeal are set forth below.

¶ 3 The decedent died on December 14, 2007, leaving no known heirs. The order of heirship was amended to include the maternal heirs, but the paternal heirs remained unknown. On March 11, 2008, Michael Ian Bender, the public administrator of Cook County, was appointed as supervised administrator of the estate. Subsequently, Nicholas G. Grapsas replaced Mr. Bender as the public administrator.

¶ 4 On January 27, 2011, the petitioner filed a motion to amend that section of the order of heirship which identified the paternal heirs as unknown and to add herself as the great-niece of the decedent. The motion was supported by the affidavit of her attorney. The attorney averred that a genealogical search was conducted by a law firm in Belarus. The documentation produced during the search established that the petitioner and the decedent shared a common paternal ancestor. The documents included: the marriage registration of Mendel Purkovich, the decedent's father, to Sara Kogan; the birth certificate of Miryam Purkovich, Sara and Mendel's daughter; the marriage registration of Vasil Shpota to Miryam Purkovich; and the birth certificate of Liliya Shpota, Vasil and Miryam's daughter and the mother of the petitioner. These documents had been authenticated with an apostille.¹ In addition, there was an October 4, 2011, order from the Ukrainian court establishing the petitioner's lineage as a matter of law.

¶ 5 At the February 2, 2012, hearing on the motion, the respondent objected to the admission of the petitioner's documentation into evidence. The trial court allowed the petitioner's documents to be used at the hearing but preserved the respondent's objection to their authenticity.

¶ 6 Julia Semenova, a genealogist and an attorney, testified for the respondent as follows. Ms. Semenova resided in Kiev, in the Ukraine. She was employed by the Ukrainian Bar Association for Foreign Affairs (Bar Association). The Bar Association had been dealing with genealogical research for 40 years and conducted genealogical researches on behalf of Ukrainian next-of-kin to prove kinship in interstate cases in the courts of the United States and other jurisdictions.

¶ 7 Ms. Semenova had worked for the Bar Association for 4 1/2 years and was currently the head of the genealogical research and international probate process section. Her work included research and investigations to identify the next of kin located in the Ukraine. She inspected various vital records such as birth, death, marriage, census and governmental records. Ms. Semenova also prepared submissions, affidavits and due-diligence reports based on her findings to establish facts concerning a family history or entitlement of a client in an estate case. She had master's degrees in English and law.

¶ 8 Ms. Semenova had testified as an expert in genealogy in probate cases in New York City and, as an expert in genealogy, submitted due-diligence reports and affidavit certifications to establish kinship in probate proceedings in Connecticut, New Jersey, California and New York. When asked about her training or education in genealogy, Ms. Semenova explained that she had practical experience and that she attended seminars and conferences devoted to genealogical research. There was no degree or license for genealogy in the Ukraine. Ms. Semenova regularly participated in conferences where genealogists discuss methods of tracing information and availability of different records and how they can be traced. She had been attending these conferences once a year for 10 years. At the end of these conferences, she received a certificate describing the training and the skills and knowledge the participant obtained. Over the objection of the petitioner, the trial court accepted Ms. Semenova as an expert witness in the field of genealogy.

¶ 9 Ms. Semenova was assigned to review certain documents at the request of the respondent to determine their validity. After examining the documents, she sent a request to the National Archives of Ukraine, to confirm the validity of the documents. She also advised that there might be some violations with respect to the issuances of certain of the documents. She received a reply from the National Archives that the documents she had sent had been falsified and that she would be provided with certificates stating that information. She obtained an apostille of the documents and returned them to the respondent for review.

¶ 10 At the request of the respondent, in November 2011, Ms. Semenova undertook her own investigation in Orkut City located in Transcarpathia, where the archives office and copies of records were kept. She was familiar with the Ukraine's record-keeping procedures from 1900 to 1935. Starting from 1895, the government established registrar's offices for registering births, deaths and marriages. Two sets of records were maintained: the registrar's book of birth, marriage and death, which contained detailed information about the event, and the alphabetical name index book, which contained only the name of the subject of the record and the year the record was composed. Each book printed and numbered by a special printing house, and all of the pages were marked with the state symbol. The books were hard-bound and sealed. If a change was made to the books, an official stamp was placed on the books, and the official achieves would contain information about the reconstruction of the books.

¶ 11 Ms. Semenova's investigation was concerned with the following documents: a 1903 certificate of marriage between Sara Kogan and Mendel Purkovich, a 1903 birth certificate of Miryam Purkovich, Sara and Mendel's daughter; the certificate of marriage between Miryam Purkovich and Vasil Shpota; and the birth certificate of Liliya Shpota, the petitioner's mother. Each document had a source code number which would lead a researcher to the actual record. In the case of the marriage certificate, the source code led to a register of births and deaths but not marriages. When she checked the marriage registry book for 1903, she located the record of marriage between Sara and Mendel.

¶ 12 Ms. Semenova observed that the page on which the record was located had been attached with office glue, which was not used by the archives. The rest of the pages were attached with a thread, not with glue, and the page was attached after the registry book was already bound. There was also a white stain on the page indicating that a number had been erased so that the numbering of the pages would be consistent. The inserted page was also torn and the ink used on the page was smudged in places. An officer from the archives office explained to her that the ink from the old period did not erode when it came into contact with a wet surface or liquid. The color of the ink on the marriage record did not match the color of the ink used on any of the other pages in the registry book. The signature of the civil registrar who recorded the information on the marriage certificate differed from the other signatures in the book, indicating that the record of the marriage was not made in 1903.

¶ 13 Based on her observations, Ms. Semenova concluded that the original record had been pulled out, leaving just the official seal, and that the record of the 1903 marriage between Sara and Mendel had been inserted in its place. Ms. Semenova found similar discrepancies with regard to the 1903 birth certificate of Miryam Purkovich. She also checked the alphabetical index and found no record of Miryam's birth. When Ms. Semenova used the source code to trace the certificate of marriage between Miryam and Vasil, the code did not lead her to the marriage registry book. When she tried to trace the birth record of Liliya Shpota, the code took her to the death registry book. Ms. Semenova opined that the information upon which the certificates of marriage and birth relied on by the petitioner to prove heirship was false and untrue.

¶ 14 On cross-examination by the petitioner, Ms. Semenova acknowledged that in 1903, Zakarpattie, where these archival records were located, was part of the Austro–Hungarian Empire. Records were kept by that government, and the official seal was not in use at the time....