Matter of Donohue

[*1] Matter of Donohue 2017 NY Slip Op 50094(U) Decided on January 26, 2017 Surrogate's Court, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2017
Surrogate's Court, Dutchess County

In the Matter of the Estate of Denise J. Donohue, Deceased.



2016-387/A



For Petitioner:

Fred Clarke, Esq.

Stenger, Roberts, Davis & Diamond, LLP

1136 Route 9

Wappingers Falls, New York 12590

For Respondent:

Paul R. Haynes, Esq.

2789 West Main Street

Wappingers Falls, NY 12590
James D. Pagones, S.

Petitioner William T. Donohue, Sr., son of the decedent, petitions the Court to allow him access to his parents' divorce file held by the Dutchess County Clerk.

The following papers were read:

Petition-Verification-Exhibits A-D 1-6

Verified Answer-Affirmation-Exhibits A-B 7-11

Affidavit of Mailing

Notice of Appearance and Waiver-Affidavit of Service 12-13

Petitioner brings this application as an objectant to the probate of the Last Will and Testament of Denise J. Donohue alleging that assets of his father were wrongfully converted by his mother. Petitioner's parents divorced on March 3, 1982. Petitioner alleges that his mother executed and published a will on or about June 3, 2009. That will specifically devised the house and real property located at 12 Hickory Lane, Wappingers Falls, New York to her friend Donald McCormick, Jr. It is the petitioner's contention that the will, which devised the marital home, was improper since title was transformed from tenants in the entirety with rights of survivorship to tenants in common with no rights of survivorship, following his parents' divorce. [*2]Accordingly, petitioner alleges that an examination of the divorce packet is necessary to determine how title was held and if the divorce was valid.

DRL §235(1) states:

"An officer of the court with whom the proceedings in a matrimonial action . . . are filed . . . shall not permit a copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum thereof, or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party, except by order of the court."

The policy behind the rule is that matrimonial matters can involve painful, even embarrassing details, which the parties should have a right to keep private (see Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C235:1). Absent some overriding importance to the persons who would have access to the file, that privacy should be respected (id.). Requests for access to sealed records are generally denied absent a showing of special circumstances, such as a nexus to pending civil, criminal or surrogate matters (see Madsen v. Westchester County Clerk, 43 Misc 3d 1217[A] [Sup Ct, Westchester County 2014]).

Petitioner's allegation concerning the transfer of title are beleaguered by the answer of Kathryn E. Szwajer, sister of the decedent. The respondent denotes that she was aware that her sister commenced a divorce proceeding against Norman Donohue in 1981. Additionally, she states that she is aware that a deed by Norman Donohue conveyed his entire interest in the real property located at 12 Hickory Lane, Wappingers Falls, New York to the decedent. Upon further inspection of the papers as submitted, annexed to the affirmation of Paul R. Haynes, Esq., attorney for Ms. Szwajer, as Exhibit "B" is the deed conveying Norman Donohue's interest in the property to the decedent on February 4, 1982.

In this Court's view, fishing expeditions into sealed records should not be permitted; rather, a petitioner seeking access to sealed records must be able to articulate and particularize the relevance of the information sought to an important pending matter (see Madsen v. Westchester County Clerk, 43 Misc 3d 1217[A] [Sup Ct, Westchester County 2014]).

Here, petitioner fails to establish a compelling reason for unfettered access to the divorce file, and therefore, the request must be denied. Petitioner states that "[t]he initial starting point to determine how title was held with regard to the marital residence therefore, is to examine the divorce packet..." The Court cannot concur with this statement; rather, the Court would note that the initial starting point to research how title was held, transferred or otherwise effected should be an examination of the deed or deeds relating to the property. In that regard, the respondent has done just that. The respondent has established that the petitioner's father transferred the entirety of his interest in the property at issue to his mother in 1982. Moreover, petitioner's now deceased mother owned this property for over thirty (30) years. During those thirty (30) years, there was no challenge to the propriety of her ownership. Accordingly, the petitioner's allegations are insufficient to justify an intrusion into his deceased parents' divorce packet.

Based, upon the foregoing, the petition is dismissed.

The foregoing constitutes the decision and order of the Court.

Dated: January 26, 2017

Poughkeepsie, New York

HON. JAMES D. PAGONES, S.C.J.