Matter of Henry
Annotate this CaseDecided on April 27, 2012
Sur Ct, Bronx County
In the Matter of the Estate of Margarita Albertha Henry, Deceased.
550A2004/B
The appearances are as follows:
Lieff, Cabraser, Heimann & Bernstein, LLP, (Wendy R. Fleishman, Esq., of counsel) and Ann Pinciss Berman, Esq., for Franseca Joy Morrison, Petitioner
Clement L. Henry, pro se, Objectant
Lee L. Holzman, J.
In this proceeding to compromise and judicially account for the proceeds of a cause of action arising from the decedent's death, the administrator, a daughter of the decedent, seeks to disqualify the pro se objectant as a surviving spouse on the ground of abandonment (EPTL 5 -1.2[a][5]). Although the objectant concedes that he married another woman while the decedent was still alive, he nevertheless asserts that he did not abandon the decedent.
The decedent died intestate on May 30, 2004 as a result of injuries sustained as a passenger in a motor vehicle accident. In addition to the petitioner, the decedent's presumptive distributees are five other adult children and the objectant. The five other children and the New York State Department of Taxation and Finance consent to the relief requested.
A non-jury trial was conducted. The oral and documentary proof adduced at the hearing establish that the decedent and the objectant were married on May 10, 1970. Approximately two years after the marriage the objectant left the marital abode and he never resided with the decedent thereafter. He claims that he saw the decedent on only two occasions shortly after they ceased living together. Thereafter, the objectant neither saw nor communicated with the decedent and she died on May 30, 2004. CPLR 4519 objections were sustained, and consequently, the objectant was not allowed to testify about the circumstances that led to his departure from the marital abode. Similarly, the administrator did not adduce any proof with respect to this issue.
A certificate of marriage registration issued by the City of New York Office of the City Clerk, Marriage License Bureau, in evidence, indicates that the objectant and his current spouse participated in a marriage ceremony performed by a minister on July 18, 1987. When the objectant was questioned about why he checked "no" to the question on the application as to whether he was previously married, he responded that as no one at the clerk's office specifically raised the impediment of a prior marriage to him, he was of the opinion that he did not have to volunteer that information. The objectant conceded that after the 1987 marriage ceremony, he held himself out to be married to that spouse and had a child with her. It was not until years after the decedent's death that he ever told any of his new family members, or any of their friends, that he had been previously married. The objectant did acknowledge that after he left the marital abode that he shared with the decedent, he had sexual relations with numerous other women.
After the decedent's death, to cure any defect with respect to the first marriage ceremony he [*2]entered into with his "second" wife, he married her again in a ceremony at the office of the City Clerk on September 21, 2011 and that marriage certificate is also in evidence. The objectant's current spouse testified that he did not tell her about his marriage to the decedent until 2007, after he received a telephone call from an unidentified person inquiring about his marriage to the decedent. Their daughter testified that she first learned about the objectant's marriage to the decedent and the existence of a half-brother approximately two months before the trial.
To establish an abandonment as of the date that one spouse left the marital abode, a party must demonstrate that the departing spouse left the marital abode without the consent of the other spouse, without justification and with an intent not to return (see Matter of Maiden, 284 NY 429 [1940]; Bazant v Bazant, 80 AD2d 310 [1981]; Matter of Lapenna, 16 AD2d 655 [1962]). Here, the proof adduced did not establish that the respondent left without the decedent's consent or without justification. Nonetheless, the case law is clear that a spouse who, after no longer residing in a prior marital abode, enters into a ceremonial marriage with a new partner, holding herself or himself out as married to the "second spouse," has unequivocally abandoned the first spouse by those acts, and can no longer claim the status of a surviving spouse of the first spouse (see Matter of Bingham, 178 Misc 801 [1942] affd 265 App Div 463 [1943]; Matter of Goethie, 9 Misc 2d 906 [1957]; Matter of Perkins, NYLJ, Jan. 8, 2003, at 19, col.3). In essence, the abandonment occurs as of the date of the second marriage rather than the date of the departure from the marital abode.
The objections must be dismissed on the alternative theories that the objectant abandoned the decedent as of the date that he entered into a ceremonial marriage with another, or that equity prevents him from proving that he is the surviving spouse of the first person he married where thereafter he represented he was no longer married to his first spouse and purported to be the lawful spouse of another. Bigamy is clearly against the public policy of New York as a bigamous marriage is void (Domestic Relations Law § 6) and a person guilty of bigamy has committed a class E felony (Penal Law § 255.15). Respondent testified that he did not know that he was committing bigamy when he entered into the second marriage and the court is not ruling herein upon his intent. This does not change the fact that it would be equivalent to allowing a person to profit from his or her own wrongdoing if, after purporting to enter into a valid second marriage, he or she could successfully resurrect a prior marriage to invalidate the second marriage in order to benefit from the first marital relationship. Accordingly, the objections alleging that the objectant is entitled to share in the settlement proceeds are dismissed because the objectant is disqualified from sharing in these proceeds as decedent's surviving spouse.
As to the balance of the application, under the circumstances presented, including the absence of any unsatisfied debts or claims and that it appears that the decedent never regained consciousness after the accident, the request to allocate the entire proceeds to the wrongful death cause of action and to distribute the proceeds as requested is granted.
Disbursements and the attorney's fees of counsel in the underlying action are allowed in the sum requested. The cost of publication and the filing fee for this proceeding are allowed as a bill of costs. Although counsel who receives a contingent fee based upon the amount of the recovery in the underlying action is usually required, without the right to receive any additional compensation, to provide or pay for all legal services in the proceeding before this court to enable distribution of the recovery (see Matter of Henry, NYLJ, Aug. 27, 2008, at 34, col 4; EPTL 5-4.6 [a] [3]), where, as here, the issues raised by objections resulted in another counsel preparing for and participating [*3]in a contested trial, the court grants the petitioner's request to pay that counsel the modest amount that was billed for legal services and disbursements .
Settle decree upon all parties who appeared in this proceeding.
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SURROGATE
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