In the recent case Matter of Lee, New York County Surrogate’s Court granted a motion for summary determination that decedent’s father was disqualified as a distributee and beneficiary for failure to support decedent pursuant to EPTL 4-1.4 (a)(1) (Matter of Estate of Lee | NYLJ, Apr. 2, 2021, p.22, col 3 [Sur Ct, NY County 2021])

The court noted the tragic underlying facts. Decedent died at age 14, survived by his divorced parents. Decedent’s mother, who was the custodial parent and administrator of the estate, petitioned for the father’s disqualification and moved for summary judgment.

EPTL 4-1.4 (a)(1) provides two separate grounds for disqualification. A parent is denied a distributive share if he or she (1) fails to support, or (2) abandons the child while the child is under the age of 21, “unless the parental relationship and duties are subsequently resumed and continue until the death of the child” (id.).

The issue in Lee was not abandonment, but failure to support. Notably, a parent’s ability to pay support is essential to the calculus in determining disqualification on this ground pursuant to the statute.

The Surrogate’s decision relied on the Family Court’s 2008 determination of respondent’s support obligations after a hearing at which movant and respondent could present evidence and testify. The same Family Court decision held that respondent had willfully refused to pay child support and disallowed any downward modification of his support obligations. Movant showed that respondent owed a total child support arrears in the sum $74,294.49, and had paid only $3,955 for child support during the last five years of decedent’s life.

The court found that movant satisfied her burden that respondent not only failed to support decedent because he was unwilling, but never resumed payment to the extent of his ability prior to decedent’s death.

In opposing the motion, respondent contended that: (1) his support obligation fixed by the Family Court was inaccurate because it neglected the fact that he had no income during his incarceration in Afghanistan before his release in 2006; (2) movant sought to alienate him from decedent; and (3) the Family Court was biased against him based on his sexual orientation.

Applying the doctrine of res judicata, the court declined to take a second look at the propriety of respondent’s support obligations. However, it stated that the doctrine, which should not be mechanically applied, may allow a court to subsequently “examine a variety of non-exclusive factors to determine the preclusive effect, if any, of a prior judgment,” such as a significant change in law.

The “significant change in law” was the 2010 amendment to the Family Court Act § 451(3)(a) which allows modification of a child support order “upon a showing of a substantial change in circumstances.” Specifically, the amended law provided the following:

Incarceration shall not be considered voluntary unemployment and shall not be a bar to finding a substantial change in circumstances provided that such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order of judgment (Matter of Leesupra).

Although this provision can be applied “retroactively [] to the date of filing of the petition to modify” (id.), the Surrogate found that respondent never followed through his petitions to modify the 2008 support determinations, and therefore, the court was restrained to find respondent’s claim barred by res judicata.

The Surrogate rejected respondent’s remaining arguments, finding that the alleged bias and alienation could have been raised in the Family Court or in an appeal. The court further found that the Family Court’s determination dispensed with the need for a hearing to determine respondent’s ability to pay, and movant’s ability to provide for decedent was no defense against respondent’s failure to support. Accordingly, the court held that respondent failed to resist the motion.