Estate of Armstrong

Calvin Eugene Armstrong Jr. [hereafter, Decedent] died intestate on March 22, 2017, in West Palm Beach, Florida. Decedent, an Erie County, New York domiciliary, was married twice during his lifetime and is survived by two marital children — Safeyah Hassman [hereafter, Safeyah] and Calvin Eugene Armstrong III [hereafter, Calvin III] — and three non-marital children — Kasmira Armstrong [hereafter, Kasmira], Brandon Armstrong [hereafter, Brandon], and Joseph Sanchez [hereafter, Joseph]. The informant on decedent’s death certificate was Calvin III, who is identified as living at an address in West Palm Beach, Florida. In September 2018, 18 months after decedent’s death, a petition for letters of administration was filed by decedent’s marital daughter, Safeyah. During the administration proceeding, Calvin III could not be located at his last known Florida address nor could any current address be found. On March 21, 2019, letters of administration were issued to Safeyah, with limitations placed on the letters requiring a petition for judicial settlement to obtain jurisdiction over Calvin III and to address kinship issues. The judicial settlement proceeding has now been filed, and this Court is asked to determine those parties entitled to share decedent’s net estate of approximately $71,000.00. I set the matter down for an evidentiary hearing on the kinship issues after all parties — including Calvin III, whose whereabouts remained unknown, unknown heirs and the Attorney General of the State of New York — had been duly cited. William D. Maldovan, Esq. [hereafter, Maldovan] was appointed guardian ad litem for Calvin III, and Joshua E. Dubs, Esq. [hereafter, Dubs] was appointed guardian ad litem for possible unknown heirs. On consent of the parties, the kinship hearing was held before a Court Attorney of this court on a hear and report basis. The parties also waived the filing of a written report and they consented that I might decide the issues based upon the testimony and documents produced at the hearing (see SCPA 506[6][c]). I now find and decide as follows. (A) In cases where there is a non-marital child, issues concerning kinship generally and class-closing arise. Pursuant to EPTL 4-1.2, the right of non-marital children to inherit from their birth fathers depends on proof of paternity by one of four methods: (1) an order of filiation by a court of competent jurisdiction during the lifetime of the father; (2) an acknowledgment of paternity executed by the parents of the child pursuant to Public Health Law Section 4135-b and filed in the district in which the birth certificate is filed; (3) a signed instrument, acknowledging the paternity by the father in a manner required to record a deed; or (4) by clear and convincing evidence, which may include, but is not limited to, evidence derived from a genetic marker test, or evidence that the father openly and notoriously acknowledged the child as his own. A claimant has the burden of proving kinship (see, e.g., Matter of Flavin, 15 Misc 3d 1104A [2007]), and she or he must establish that she or he is the decedent’s closest blood relative as defined in EPTL 4-1.1 (see, Matter of Dinzey, NYLJ, June 9, 2003, at 33, col 4). This burden is met by a preponderance of the evidence (see, Matter of Paul, 2017 NY Misc LEXIS 674, 2017 NY Slip Op 30355U [dec. Feb. 17, 2017]; see also, Matter of Whelan, 93 AD2d 891 [1983]). For kinship to be established to the satisfaction of the Court, a claimant must make an evidentiary showing (1) how she or he is related to the decedent, and (2) that no other persons of the same or a nearer degree of relationship survived the decedent. Upon proof that no heirs other than those before the Court exist, the class of heirs may be “closed” (see e.g., Matter of Alao, NYLJ, March 19, 2002, at 20, col 5). (B) Two witnesses testified at the hearing: decedent’s brother, Michael Armstrong [hereafter, Michael], and Safeyah, decedent’s marital daughter. The testimony of each witness was credible and persuasive. Decedent was born in Hampton, West Virginia, but as a young boy his family moved to New York City. Michael testified that decedent was always called “Gene”, which is a shortened variation of his middle name, Eugene. After high school, decedent enlisted in the Army, was stationed in Texas, and was sent to Vietnam. Upon returning home, he settled back in New York City. There were approximately ten years age difference between decedent and his younger brother Michael. The brothers spoke on a regular basis throughout their lives. While Michael described decedent as a private individual, Michael explained: “Q. Now, as you said, you spoke to him at least once a month. Do you believe that if he had children other than the five we’ve been talking about here today that you would have known about that? Yes, I would have known it, yes. I mean you said he was kind of private, but he would share those types of things with you? A. Yeah, yeah, something like that; if I had a niece or a nephew, I’m sure he’d tell me about it.” Michael did not recall a time when they were not in communication with each other. Michael testified that decedent’s first marriage was to a woman named Clara Armstrong [hereafter, Clara]. The couple lived together in New York City on 131st Street, and they had one child together, Calvin III, who was born on XX/XX/1967, in Queens, New York. Calvin III’s birth certificate identifies decedent as his father; and decedent was twenty years old when Calvin III was born. Michael recalled their family was happy to learn about that birth. On July 26, 1978, the marriage between decedent and Clara ended in divorce. The divorce judgment, issued in New York County Supreme Court, was received into evidence and incorporated a Family Court stipulation which addressed issues of alimony and child support for Calvin III. During the divorce proceedings with Clara, decedent began a relationship with a woman named Minnie Armstrong [hereafter, Minnie]. The couple had a daughter together, Safeyah, who was born on XX/XX/1977. Following Safeyah’s birth and the finalization of decedent’s divorce from Clara, decedent and Minnie were married on September 5, 1978.¹ Safeyah testified she lived with her parents as a child in the Bronx. Minnie had children older than Safeyah from a previous relationship, but decedent never adopted those children. Decedent’s marriage with Minnie was brief, and they were divorced in Suffolk County Supreme Court on July 23, 1980. The Finding and Judgment of Divorce was received into evidence; and it identifies Safeyah as the parties’ daughter and addressed custody, visitation and child support. Minnie and Safeyah moved to Georgia after the divorce, but Safeyah and decedent stayed in contact for the remainder of decedent’s life. Decedent would primarily visit Safeyah, but there were occasions when Safeyah traveled to New York for visits at her father’s home. In the early 1980s, decedent and Michael lived near each other in New York City. Michael recalled introducing decedent to an acquaintance, Lorraine Sanchez [hereafter, Lorraine], who then began a relationship together. Although the couple never married, they lived together in the Bronx where their first child, Kasmira, was born on XX/XX/1984. Kasmira’s birth certificate identifies decedent as her father, and a 1995 Order of Support for Kasmira against decedent granted by Bronx County Family Court was received into evidence.² Decedent and Lorraine had a second child together, Brandon, on XX/XX/1988, in Bronx, New York. No father is listed on the birth certificate. A 1995 Order of Support for Brandon against decedent granted by Bronx County Family Court was received into evidence.³ One year later, decedent’s and Lorraine’s third and last child together, Joseph, was born on XX/XX/1989. No birth certificate was obtained for Joseph, but there is a 1995 Order Filiation and Support for him against decedent granted by Bronx County Family Court which was received into evidence. Decedent’s relationship with Lorraine ended, and both Michael and Safeyah said the only serious relationship he had thereafter was with a woman named Brenda.⁴ Decedent and Brenda never married and never had any children together. There was testimony that Brenda had a daughter from an earlier relationship, but the witnesses confirmed decedent never adopted Brenda’s daughter. After Brenda passed away, decedent moved to Florida, but Safeyah indicated that he also maintained a home in Buffalo, New York. In 2017, decedent became ill, was hospitalized, and entered hospice. Safeyah traveled to Florida to see her father in the hospital, staying for a long weekend. Also with her father at the hospital were Calvin III and Michael. Decedent passed away in hospice after Safeyah left. Safeyah was unable to attend decedent’s funeral service in Florida, but decedent’s family held another funeral service in North Carolina which she and Michael attended. No one approached Michael or Safeyah at either service claiming to be decedent’s child or the mother of another child. When asked how many children decedent had, Michael and Safeyah both testified he had five: Calvin III, Safeyah, Kasmira, Brandon and Joseph. Michael and Safeyah also stated that, based on the nature of their relationship with decedent, they would have known if decedent had any other children. Decedent provided financial support for all his children and all five children were recognized as his without question.⁵ (C) I find that decedent was not married when he passed away in 2017. Calvin III was decedent’s oldest son born during his first marriage. Decedent and Safeyah’s mother married after Safeyah’s birth; therefore, Safeyah is deemed to be a child of both parents (Domestic Relations Law §24[1]). Orders of Support for Kasmira and Brandon, and an Order of Filiation and Support for Joseph, were received into evidence which establish their status as decedent’s children pursuant to EPTL 4-1.2(a)(2)(A). Searches were conducted by the New York State Putative Father Registry and Erie County and Bronx County Family Court records. The New York State Putative Father Registry search indicated decedent was not registered. Family Court records only pertain to Kasmira, Brandon and Joseph. These searches were received into evidence and exclude the existence of other possible children of decedent. Maldovan, guardian ad litem for Calvin III whose whereabouts are unknown, and Dubs, guardian ad litem for possible unknown heirs, each report decedent is survived by five children — Calvin III, Safeyah, Kasmira, Brandon and Joseph — and each is satisfied that all distributees have been identified. From the totality of the evidentiary material and testimony before me, and in recognition that more than three years have elapsed since decedent died and that no other parties have come forward claiming to be decedent’s child, I find that reasonable efforts have been made to ascertain the existence of any other possible child(ren) of decedent (SCPA 2225[b]). I conclude that the proof establishes that decedent was married and divorced twice, that he left five children as his distributees, and that the class of issue is closed. Calvin III, Safeyah, Kasmira, Brandon, and Joseph are each entitled to a one-fifth share of decedent’s net estate, subject to the administrator’s accounting. I further find that Maldovan’s guardian ad litem written fee application for $1,500.00, is fair and reasonable under all the circumstances of this case, and that Dubs’ guardian ad litem written fee application for $1,800.00, is also fair and reasonable under all the circumstances of this case. The fee requests have not been objected to by any of the parties, each is hereby approved, and they shall be paid within 20 days of this decision. (D) With respect to the final accounting itself, I note that there are two unresolved issues. First, there is a claim by the Pope Law Firm for $1,153.64 for legal work involving decedent’s bankruptcy. The estate has agreed on the record to pay the claim. I decline to award any interest on the claim to date in the absence of any agreement in this regard, but statutory interest shall run from the date of this decision to the date of payment. Second, there is Safeyah’s claim that Calvin III impermissibly took $11,938.75 in estate assets. I find that claim is substantiated and not contested. Therefore, that amount shall be deducted from Calvin III’s one-fifth share of the net estate. Third, I find that Maldovan’s guardian ad litem fee of $1,500.00 may also be deducted from Calvin III’s share. Fourth, Safeyah urges that there should also be deducted from Calvin III’s share the following items:⁶ $900.00 — process service and investigation expenses $3,520.00 — supplemental judicial settlement estate expenses I can find no itemized breakdown for any of the forgoing $4,420.00 in asserted expenses which Safeyah seeks to attribute to Calvin III and his share of this estate. Of the $3,520.00 in so-called “supplemental judicial settlement expenses”, GAL Maldovan’s fee of $1,500 is clearly a permissible component, but the remaining $2,020 is entirely unexplained. Similarly unexplained is the $900 attributable to “Additional Process Service est, Investigation agencies for location of person and assets”, and there is nothing on Schedule C or C-1, or any other schedule on either the September, 2019 accounting or the January 9, 2020 amendments to it, which correspond to what is being sought as a deduction from Calvin III’s share. Fifth, the fiduciary commissions set out in the accounting are predicated, in part, for both “receiving” and “paying out”, on assets which never came into the fiduciary’s hands, namely, the $11,938.75 [2 cars, valued at $9,490.00, and 2 bank accounts, valued at $2,448.75] in decedent’s assets taken by Calvin III. Thus, the commissions set forth on the accounting for receiving and paying out must be adjusted and recalculated. Under these circumstances, I am not in a position presently to approve the accounting, as amended. I direct that, on or before July 29, 2022, the accounting shall be updated and amended consistent with what is set forth herein, and, as updated and amended, including the updated final proposed share to each of decedent’s five children, shall be efiled with this Court and emailed to GAL Maldovan. Thereafter, depending upon what is set forth thereon, this Court shall determine whether any further proceedings on that accounting will be required. This decision shall constitute the Order of this Court and no other or further order shall be required. Dated: July 5, 2022