Matter of Rogers (Bell)
Annotate this CaseDecided on November 9, 2021
Surrogate's Court, Orange County
Matter of Petition of Burl L. Rogers for Administration of the Estate of Marietta Bell, Deceased.
Matter of Petition of Bijan Richards for Administration of the Estate of Marietta Bell, Deceased.
File Nos. 2020-500 and 2020-500/B
Andrew Maloney, Esq.
Maloney Law Group PLLC
Attorneys for Petitioner Burl L. Rogers
One Rockefeller Plaza, Suite 1100
New York, New York 10020
Gregory T. Ambus, Esq.
Gregory T. Ambus, P.C.
Attorneys for Cross Petitioner/Objectant Bijan Richards
380 North Broadway STE 300
Jericho, New York 11753
Timothy P. McElduff Jr., S.
Background
The Decedent, Marietta Bell, died without a will. Petitioner Burl L. Rogers commenced an administration proceeding and sought the issuance of Letters of Administration to himself, alleging that he had standing and an interest to do so as the common law spouse of the Decedent. Cross-Petitioner Bijan Richards answered the petition of Burl L. Rogers and, therein, disputed Mr. Rogers' status as a common law spouse and asserted his own superior standing and interest as the Decedent's only child and sole statutory distributee under EPTL § 4-1.1. Accordingly, Bijan Richards filed a cross-petition seeking the issuance of Letters of Administration to himself as the sole statutory distributee pursuant to SCPA § 1001.
The singular issue to be determined at trial is whether or not Petitioner Burl L. Rogers qualifies as the common law spouse of the Decedent. If he does, he is entitled to the first [*2]$50,000.00 plus half of the Decedent's Estate under the law of intestacy, as well as statutory priority in being appointed Administrator of the Estate. If he does not, then he holds no share in the Decedent's Estate and Bijan Richards, as the Decedent's only child and distributee would have statutory priority in being appointed Administrator of the Estate.
The trial was conducted over a three-day period (May 6, 2021, May 28, 2021 and June 17, 2021), during the course of which sworn testimony was taken from multiple witnesses and seven documentary exhibits were admitted into evidence. At the conclusion of the trial, the parties were directed to submit post-trial memoranda, which they have done as of October 4, 2021.
As a threshold matter, the Court takes judicial notice of all prior filings, documents, Decisions and Orders under this file number. As a further threshold matter, the Court, in rendering this decision, has also considered, and relied upon all sworn testimony elicited at trial together with the documentary evidence admitted into evidence. Thus, in rendering its Decision, the Court has considered the sworn testimony of Burl Rogers, Bijan Richards, Annice Johnson, Deborah Smith, Bernard Thombs, Derrick Green, Yolanda Mutchinson, Dorothy White, Drucilla Zimbi, and Lisa Chambers.
The Court has likewise considered counsels' respective post-trial memoranda.
Discussion, Findings and Legal Analysis
Petitioner Burl Rogers and Decedent Marietta Bell had known each other since the mid-1970s. The Decedent was the girlfriend of Petitioner's close friend. Through the years, the Petitioner and Decedent remained acquainted and helped each other at various points in their lives in significant ways. Petitioner was twice married and twice divorced. The Decedent helped to take care of Petitioner's children at different points. The Decedent was never married.
Eventually, the Petitioner and Decedent entered a committed relationship. They travelled together, extensively. They also purchased a house together as tenants in common and lived there together for approximately ten years before Decedent's death on December 17, 2019.
The first version of the Decedent's Death Certificate noted that the Decedent was married to the Petitioner. The Death Certificate was later amended by correction on January 10, 2020 to cross-out the previously checked box for marital status as "married" and to check the box for "never married." (Ex. 2). Further, the Decedent's obituary referred to Petitioner as her "beloved mate" and excluded any reference to a husband or to being married at any point in time. (Ex. 3).
At the time of her death, the Decedent was living with the Petitioner in a home that they had purchased together in 2009 as tenants in common. (Ex. 5). The Petitioner has argued that the attorney who handled their purchase and closing had mistakenly recorded their interest as tenants in common instead of joint tenants with a right of survivorship or tenants by the entirety (due to the alleged status as having been married under common law by that time). However, the only evidence before the Court on that issue was Petitioner's conclusory statement. Petitioner has never commenced an action for reformation of the deed due to mistake, etc. Furthermore, no other documentary evidence exists to suggest that Petitioner and Decedent "should have" owned the house jointly. For example, Decedent did not hold herself out as married on any of her employment records, retirement records, insurance records, banking records/accounts or tax filings, nor did she hold any other assets or property jointly with the Petitioner.
The Petitioner testified that he had traveled with the Decedent to Washington, D.C., in or around May 2008, where Petitioner and Decedent had held themselves out to be man and wife [*3]and had cohabitated by checking into a hotel in Washington, D.C. However, Petitioner could not specifically recall their trips to Washington, D.C., where they stayed in Washington, D.C. or for how long they stayed. (Trial Transcript, 5/6/21, pp.50-55). Petitioner's witness and aunt, Annice Johnson, explained that Petitioner and Decedent would visit her and stay at her house in Adelphi, Maryland. Specifically, Ms. Johnson testified that Petitioner and Decedent had their own private suite in her basement and came to stay there on two or more weekends per month since 2005. Ms. Johnson testified that Petitioner and Decedent would go to their favorite restaurant in Washington, D.C., while visiting, as well as to restaurants in other surrounding cities. Ms. Johnson did not testify that Petitioner and Decedent visited or resided Washington, D.C., at any other particular time or for any other particular purpose. Ms. Johnson, as well as Petitioner's witness Deborah Smith, further testified that the Petitioner and the Decedent, during another visit to Ms. Johnson's house in Maryland, "jumped the broom"[FN1] at an exhibit at the African American Museum in Washington, D.C., in 2017 or 2018, thus "reaffirming" their relationship as man and wife. However, the broom jumping event appeared to be a spontaneous act during the museum visit as there was no testimony suggesting that this was a pre-planned event or ceremony with any particular words or agreement being publicly exchanged. (Trial Transcript, 5/28/21, pp. 33-50; 61-70).
Bijan Richards testified that he attended the trip to Maryland/Washington, D.C., in or around May 2008 with the Petitioner and the Decedent. Mr. Richards testified that he did not witness any verbal agreement to marry between Decedent and Petitioner and did not have any knowledge of one. Instead, he testified that the purpose of the trip was for a Memorial Day weekend/birthday trip. The Petitioner confirmed that Bijan Richards accompanied him and the Decedent on the May 2008 trip.
Both Petitioner and Mr. Richards offered the testimony of various friends and family members, which can be summarized as follows. The witnesses offered by Petitioner testified that at various times Petitioner and the Decedent "presented themselves" as husband and wife. Decedent's mother and sisters testified to the contrary, going as far as to say Petitioner was always referred to by the Decedent as her boyfriend and never as her husband including when it came time to write Decedent's obituary.
When the Petitioner was asked about any agreement he had with the Decedent to be married, the Petitioner replied that, "There were no specific words to making an agreement," [*4]then, "There was an understanding, a mutual agreement between Marrieta and myself that we would be committed to each other defined in the essence of husband and wife," and later, "It was a verbal agreement between Marrieta and myself, that we would be — consider ourselves husband and wife and do everything in our power to make each other happy and to again develop each other to the fullest of our capacity." (Trial Transcript, 5/6/21, pp. 81-84).
"Because the courts have regarded common law marriage as a fruitful source of fraud and perjury, common law marriages are to be tolerated but not encouraged." Cross v. Cross, 146 AD2d 302, 306 (1st Dept. 1989). Although New York no longer recognizes common-law marriages contracted here, a common-law marriage contracted in another state will be recognized as valid in New York, so long as that common-law marriage was valid in that other state. Baron v. Suissa, 74 AD3d 1108, 1109 (2d Dept. 2010).
The elements of common law marriage in Washington, D.C. are (1) an express mutual agreement, which must be in words of the present tense to signify becoming married at the time of the exchange of words, (2) followed by cohabitation in Washington, D.C. Coates v. Watts, 622 A2d 25, 27 (D.C. 1993). Both elements must be proven by the proponent by a preponderance of the evidence. Coates, 622 A2d at 27. "Since ceremonial marriage is readily available and provides unequivocal proof that the parties are husband and wife, claims of common law marriage should be closely scrutinized, especially where one of the purported spouses is deceased and the survivor is asserting such a claim to promote his financial interest." Id.
Courts have closely examined and scrutinized the agreement element, stating that, ". . . a party must submit proof of an agreement to enter into the legal relationship of marriage through an exchange of words in the present tense 'spoken with the specific purpose that the legal relationship of husband and wife by thereby created.'" See Sears v. Sears, 267 AD2d 988, 989 (4d Dept. 1999) (dismissing the complaint where, during their short stays in Washington, D.C. and Pennsylvania, the parties never entered into a present tense agreement for the purpose of establishing the legal relationship of husband and wife). See also Baron v. Suissa, 74 AD3d 1108 (2d Dept. 2010) (motion for summary judgment dismissing cause of action to establish validity of common-law marriage from Washington, D.C., was properly granted where plaintiff failed to make specific allegations evidencing a mutual agreement of the parties, expressed in an exchange of words in the present tense, to enter into a marital relationship, while in that jurisdiction); accord Cross v. Cross, 146 AD2d 302 (1st Dept. 1989) (finding that, in addition to no proof of an agreement to be married, the plaintiff could not establish cohabitation and reputation in Washington, D.C., on the basis of a two day visit).
The Petitioner is seeking to establish the validity of his alleged common-law marriage to the Decedent after her death. If the Petitioner's common-law marriage was found to be valid, that finding would make him a distributee of the Estate and inure to his financial benefit. These circumstances do not delegitimize the Petitioner's claim, but rather, require the application of close scrutiny. See Coates, supra.
Here, however, the Petitioner has failed to establish the element of express, mutual and present tense agreement to signify becoming married at the time of the exchange of words. No such agreement was alleged in Petitioner's petition. At trial, the Petitioner could not testify as to any particular words of the agreement and his characterization of the agreement was akin to a private understanding between him and the Decedent that they would be committed like a married couple, maintaining a relationship with the essence of marriage, for the purpose of [*5]making each other happy. This is not equivalent to a present, verbal agreement to enter the legal relationship of husband and wife. Additionally, no specific length of cohabitation in Washington, D.C. was established. This is significant because short stays of a couple days or so have been found to be insufficient to satisfy the cohabitation element. See, e.g., Cross, supra. The act of "jumping the broom" approximately ten years later to "reaffirm" their alleged marriage is a nullity because the original common-law marriage was not established in the first instance. Additionally, there was no proof in the record from which to satisfy the express, mutual and present tense agreement element at the time of the broom jumping event.
Although not a controlling factor under the Washington, D.C., test for common-law marriage, it is significant to note that the Petitioner and Decedent's personal affairs over the time that they were together lacks important indicia that traditionally support a claim that a couple agreed to, and did, live their lives as husband and wife. See, e.g., In re DeFlorio, No. 2060/99, 2004 WL 6063358 (Sur. Ct., 2004) (applying the law of Washington, D.C.). Similar to In re DeFlorio, the Petitioner and Decedent, here, did not hold any assets, accounts or real estate jointly. Significantly, Petitioner and Decedent purchased their home in Florida, New York as tenants in common in 2009 after the Petitioner had claimed they were married under common law in 2008.
As a result, this Court finds that while Petitioner and the Decedent had what appears to have been a loving and committed relationship, the evidence presented does not establish a valid common-law marriage under the law of Washington, D.C. Thus, no common-law marriage existed between the Petitioner and Decedent in New York.
Petitioner's post-trial submission additionally argues that if Petitioner is not declared the common-law spouse, then Cross Petitioner Bijan Richards should not be appointed as Administrator of the Estate because he is not as capable or well-positioned as the Petitioner. However, Petitioner has only offered conclusory statements and has not established any legal reason that would make Cross Petitioner ineligible to serve as Administrator under SCPA § 707.
Finally, Petitioner submits that, assuming he is not found to be the common-law spouse of the Decedent, he should be entitled to proportionate reimbursements for expenses paid by him toward the home he shared and owned with the Decedent in Florida, New York. In support of this argument, the Petitioner cites RPAPL § 1201. This argument, however, is not properly before the Court because it is not subject of the petitions or pleadings herein. Further, RPAPL § 1201 does not apply to recoupment of expenses by joint tenants or tenants in common; instead, it applies to the recovery and division of rents and income generated by such jointly held property. See Trotta v. Ollivier, 91 AD3d 8 (2d Dept. 2011). Finally, the argument or claim is not ripe. Such equitable recoupment of expenses or distribution of sale proceeds to be received by each tenant in common holding an interest in the real property can reached, for example, by (1) an agreement between the parties, (2) a partition and sale action pursuant to RPAPL § 901 or (3) by a proceeding to determine the validity of claims against the Estate.
Conclusion
For the reasons stated above, it is hereby
ORDERED that the Second Amended Petition of Petitioner Burl Rogers verified on September 3, 2020 is denied; and it is further
ORDERED that the Amended Petition of Cross Petitioner Bijan Richards verified on September 10, 2020 is granted; and it is further
ORDERED that, consistent with the foregoing, Cross Petitioner Bijan Richards is [*6]appointed Administrator of the Estate and Letters of Administration shall thereupon issue to Bijan Richards upon his qualification to such according to law, without bond; and it is further
ORDERED that the previously issued Temporary Letters of Administration herein dated March 1, 2021 and extended to October 9, 2021 by Order dated April 21, 2021 are hereby expired and revoked.
This constitutes the Decision and Order of the Court. A Decree shall issue in conformity herewith.
Dated: November 9, 2021
Goshen, New York
HON. TIMOTHY P. McELDUFF, JR.
SURROGATE Footnotes
Footnote 1:Petitioner's testimony concerning "jumping the broom" was elicited for the first time during his re-direct examination and was outside the scope of cross examination. Consequently, Cross Petitioner objected to the line of questioning and the admissibility of Petitioner's testimony concerning "jumping the broom." The Court permitted the questioning to continue, reserved decision on the issue and gave counsel the opportunity to brief the issue in their post-trial submissions. The Court further permitted the Cross Petitioner to re-cross examine the Petitioner following the re-direct examination. Subsequently, witness Annice Johnson also answered questions in reference to "jumping the broom." In the exercise of the Court's discretion, and in light of the ample opportunity given to re-cross examine the Petitioner and cross examine other witnesses, the Court hereby denies the Cross Petitioner's request to strike the re-direct testimony of the Petitioner concerning "jumping the broom." See People v. Harris, 166 AD3d 1578 (4d Dept. 2018), amended, 179 AD3d 1558 (4d Dept. 2020).
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