[*1]
Matter of Petote
2009 NY Slip Op 50015(U) [22 Misc 3d 1104(A)]
Decided on January 7, 2009
Sur Ct, Monroe County
Calvaruso, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2009
Sur Ct, Monroe County


In the Matter of the Administration of the Estate of Carol Petote, Deceased.




2008-1333



APPEARANCES

Anthony Daniele, Esq., for Thomas Chichester, respondent.

James Boehler, Esq., for Karen Petote, petitioner.

Frank Iacovangelo, Esq., Public Administrator, as Administrator of the Estate of Carol Petote.

Edmund A. Calvaruso, J.

BACKGROUND


Petitioner is the sister of the decedent. On June 3 , 2008 she filed a petition for Letters of Administration and thus was the first person to commence an estate proceeding, nearly two years after the decedent's death. Petitioner alleged that decedent's sole distributee was decedent's mother, who had consented to petitioner's appointment. In her petition, petitioner listed the respondent as an interested party, naming him as an alleged spouse of the decedent. On the original return date, respondent appeared, contested petitioner's appointment, and argued that he was the lawful spouse of the decedent and as such, he was her only distributee and the only person eligible to seek letters. As a compromise, the public administrator was appointed to administer the estate while the kinship issues were litigated.

On July 24, 2008, respondent filed a certified copy of a marriage certificate from the state of California showing that he and the decedent were married on December 29, 2001. Petitioner argued that the document was invalid due to fraud. A hearing was held on December 10, 2008, for the sole purpose of determining whether or not the document filed by respondent was a true substantiation of a lawful marriage ceremony and not the product of fraud.

OPINION


A marriage certificate of a ceremonial marriage is prima facie evidence of one of the "strongest presumptions in the law". Graham v. Graham, 211 AD 580, 583 (1924). A marriage certificate is prima facie evidence that the marriage took place, CPLR 4526, a certified copy is prima facie evidence of "all facts recorded in it". CPLR 4520. See, Warren's Heaton, § 32.12[2]. Therefore, [*2]when respondent filed a certified copy of a marriage certificate, he received the extremely strong presumption that a lawful marriage took place between him and the decedent. Cf., Rahill v. 645 Restaurant Corp, 59 AD2d 988 (1977) (the alleged spouse had not provided the formal evidence of a marriage, the only reason the presumption was able to be overcome). To overcome respondent's presumption, petitioner had to provide at the very least, "substantial contrary evidence". Matter of Newins, 29 Misc 2d 614 (1961). As the Third Department stated in Esmond v. Lyons Bar & Grill, 26 AD2d 884,884 (1966):

An extremely strong presumption of validity arises from such a ceremonial marriage which is overcome only by overwhelming proof to the contrary.

A treatise suggests that this is rarely accomplished without clear convincing proof of fraud. Warren's Heaton, § 32.12[2].

Respondent was the sole witness for his side. Petitioner put forth various witnesses, most designed to impeach the respondent, but some actually painting a picture in his favor. The evidence showed that respondent and decedent both placed very little emphasis upon the legal contract of marriage, and did not rely upon it to define their relationship. They had been together for twenty four years prior to marriage, got married at a small civil ceremony while on vacation in California and kept their marriage confidential, even from family and friends. They held themselves out as cohabitating but legally single even after the marriage. Near the very end of decedent's life, while she was critically ill in the Intensive Care Unit in the hospital, respondent contacted a priest to perform a ceremony between him and the decedent. Petitioner argues that the priest was called to perform a marriage. This was impossible due to decedent's lack of capacity at that time. Petitioner uses this evidence to argue that respondent knew that no valid prior marriage had taken place. More likely, this testimony reveals a grieving respondent struggling with the imminent death of the decedent, who sought religious blessing upon the marriage of himself and his dying spouse. Whatever the exact motivations of respondent or the precise type of ceremony performed by the priest, it was not inexplicably unorthodox behavior, and fails to impeach respondent's testimony or prove fraud.

Petitioner's sole direct evidence of fraud came from James Beikirch, a handwriting expert who served in the Monroe County Sheriff's office for thirty five years. Mr. Beikirch testified that the signature on the document was not authored by the same person who authored known examples of the decedent's signature. Mr. Beikirch has a history of professional expertise in the area of forgery detection and signature analysis. On its face value, his testimony was both professional and credible. However, on cross examination, it was shown that Mr. Beikirch's analysis was based partly upon photographic copies of decedent's signature, and that he had identified only four points of difference when comparing signatures. The court relied upon the credibility of Beikirch in candidly conceding that the exemplars of the decedent were less than optimal. Some exemplars were copies, whereas, originals were preferred. There was a lapse of years between the exemplars and the signature on the disputed document. He testified that a person's signature changes over time, and that it can be affected by many other factors that can not necessarily be properly scrutinized with photocopied exemplars. As Beikirch's testimony proceeded, it became increasingly unclear which exemplars had been given to him by the petitioner. Because of this, [*3]his conclusion is unreliable, and the court will disregard it. See, In Re Mariocchi, 117 AD2d 670 (2nd Dept, 1986).

Even if Mr. Beikirch's testimony had been impenetrable on cross examination, it addresses only decedent's signature on the marriage certificate and does not provide the court with evidence of how this document was forged. Moreover, it does not counter the additional evidence presented by respondent: photographs taken of himself and the decedent, both clothed in semi-formal wedding attire, standing with the celebrant. Respondent attached these photographs to an affidavit by the celebrant identifying herself and the parties and attesting to the solemnization of a lawful marriage between decedent and respondent. Petitioner has not even alleged how fraud in this scenario could have occurred; she definitely has not proven it by clear and convincing evidence.

Due to the paucity of evidence in this proceeding, petitioner's unreasonable positions and the innumerable frustrations of the hearing, respondent's attorney has moved this court to award sanctions or costs against petitioner, charging her for his attorney fees. An award of costs or sanctions requires a finding of frivolous conduct. NYCRR§ 130-1.1.

At the beginning of this proceeding, neither frivolous conduct nor blatant bad faith was present. Petitioner began these proceedings in good faith, taking the initiative to instigate estate proceedings when no one else had done so for two years after decedent's death. She identified the respondent in her papers, raised a legitimate question as to the status of respondent's and decedent's relationship due to her long standing belief that her sister was single and merely co-habitating with respondent, and accordingly cited and served respondent with process. When presented with a certified marriage certificate, petitioner contested its legitimacy. Clearly, petitioner's doubts were strongly colored by the parties' contentious relationship, but petitioner had a right to investigate her concerns as a potential administrator, collect evidence, and through her counsel, have her day in court.

By the date of the hearing, however, once all evidence was collected, petitioner was pursuing this matter not out of a question of justice but out of her emotions regarding the respondent, sanctionable conduct under NYCRR §130-1.1(c)(2). She acted unprofessionally and without good faith during the hearing. Exemplars were misplaced during the trial, and had been mis-identified prior to Mr. Beikirch's analysis, rendering his conclusions meritless, conclusions upon which petitioner's position critically relied. She interrupted the trial to insert her opinions with regard to how the matter should proceed, stubbornly resisted to concede obvious points, and was determined to litigate the entire question based upon principle alone once it was clear that her legal position was untenable. Petitioner's attorney performed admirably and professionally, especially given the extremely high burden of proof which he faced, but his representation of petitioner was hampered by petitioner herself, to the point where it affected the judicial process and caused unfair financial repercussions to the respondent. It is therefore

ORDERED, ADJUDGED and DECREED that the marriage certificate submitted by the [*4]respondent is a valid transcript of the fact that he and the decedent were lawfully married in Orange County, California on December 29, 2001, and respondent is the lawful surviving spouse of the decedent, and it is further

ORDERED, ADJUDGED and DECREED that the petition to grant Letters of Administration to the petitioner is hereby denied since she is not a distributee of the decedent and has no standing to request Letters of Administration, and it is further

ORDERED, ADJUDGED and DECREED that respondent is free to file a cross-petition seeking Letters of Administration if he wishes to do so, and it is further

ORDERED, ADJUDGED and DECREED that respondent's motion for costs against petitioner is granted. Respondent is hereby awarded costs for fees charged by Frank Iacovangelo, Esq., and Anthony Daniele, Esq. for the time spent in the hearing on December 10, 2008.

Dated: January 7 , 2009Edmund A. Calvaruso

Hon. Edmund A. Calvaruso, Surrogate