Mitchell, who was fathered by another man. At the hospital she told attending medical personnel that she was unmarried. Later that year, on December 15, 1967, decedent entered into a ceremonial marriage (albeit void) with one Roseanne Pitzerell in Apollo, Pennsylvania. He lived with her, as "husband and wife," through mid-1970. She did not know he was already married. Their son, Marcus Lee Shenandoah, was born in Euclid, Ohio, on December 1, 1969. A driver's license issued to decedent by the State of Ohio in March 1970 shows his residence as 15814 Mandalay Ave., Cleveland, Ohio. The same address appears on Marcus' birth certificate and on birth announcements which his parents dispatched to friends and relatives.
In or around April 1970, decedent abandoned Roseanne and began living with a woman named Deena J. Russi. They lived for a time in a suburb of Philadelphia while decedent was employed on a construction project in that city, but spent the summer of 1970 working in an apple orchard in Central New York and living on the reservation at the home of decedent's parents. In April 1971 they left Pennsylvania and moved back to the reservation. Their daughter, Melinda Jill Shenandoah, was born in Syracuse on July 19, 1971. Her parents made no effort to enter into a ceremonial or common-law marriage, although there was talk of divorcing Ann, and Deena began using the name "Shenandoah."
There is no evidence that either decedent or his wife ever attempted to obtain formal dissolution of their 1957 marriage. On December 6, 1971, they co-signed a retail installment agreement to purchase a snowmobile; it was to be delivered to the reservation in Nedrow, where decedent was living with Deena and their infant daughter. The spouses' joint effort on this purchase was necessitated, apparently, by New York law requiring the signature of both husband and wife on such documents.
On February 14 and 16, 1972, Ann Shenandoah signed several documents at a Syracuse bank relating to an application for a personal loan. Her husband's purported signature also appears on those papers. It uses the spelling "Schenandoah," contrary to decedent's habit, does not resemble his signature as it appears on a multitude of other documents in the record, and was allegedly penned on dates on which decedent himself was working in Philadelphia on a construction project (as evidenced by time sheets which he, as foreman, filled out to certify the hours he and his crew worked on those days).
On March 2, 1972, decedent was shot and killed by a Philadelphia police officer. His mother, not his widow, gave the funeral home a deposit for his funeral expenses, and, acting on behalf of the estate, applied for and obtained social security survivor benefits for the two children, Marcus and Melinda.
These facts compel the following conclusions of law:
1. Plaintiff has not carried her burden of proving that Ann LaForce's departure from her marital home in 1964 was unjustified and without the consent of her husband. Accordingly, there was no "abandonment" at that time. Matter of Maiden, supra.
2. Assuming that the spouses initially parted by mutual consent, their subsequent, mutual misconduct resulted in the abandonment of each by the other, for which either could have secured a judgment of divorce after 1970 (when the New York divorce statute was amended to include abandonment as a ground for divorce). Gleason v. Gleason, supra; Matter of Oswald, supra; Matter of Goethie, supra.
3. Plaintiff has carried her burden of proving that Ann LaForce "abandoned the deceased spouse, and [that] such abandonment continued until the time of death." EPTL § 5-1.2(5).
4. Ann LaForce has not carried her burden of proving condonation or reconciliation. Compare Matter of Sidman, supra.
5. Ann LaForce does not qualify as a surviving spouse under the New York wrongful death statute.
IV. Distribution of the Fund
The New York wrongful death statute provides that damages recovered in such an action, or by settlement thereof, "are exclusively for the benefit of the decedent's distributees and, when collected, shall be distributed to the persons entitled thereto under 4-1.1 and 5-4.5 . . . in proportion to the pecuniary injuries suffered by them." EPTL § 5-4.4(a)(1). The court having jurisdiction of the action makes the determination of pecuniary injury under this section. Persons seeking to share in the recovery must prove (1) that they are statutory distributees of the decedent; and (2) that they sustained pecuniary loss because of his death. The putative distributees in the present case are decedent's parents, Gertrude and Sanford Shenandoah, and his two children, Marcus and Melinda.
a. Decedent's Parents
A decedent's parents are his distributees in an action for his wrongful death. EPTL § 4-1.1. To show pecuniary injury they need not prove that during his lifetime decedent contributed to their support. Kelley v. Cacace, 43 A.D.2d 573, 349 N.Y.S.2d 410 (2d Dept. 1973). Under New York law, a parent is considered "a natural object of the decedent's bounty," and where, as in this case, the ties between parent and child endured throughout the child's life, the parent is deemed to have had "a reasonable expectation of receiving some monetary support" from the child and will be given share of the wrongful death proceeds. Kelley v. Cacace, supra. On the same theory, a child who was not actually dependent upon a deceased parent may be deemed to have sustained pecuniary injury because of the death. Gross v. Abraham, 306 N.Y. 525, 119 N.E.2d 370 (1954).
Decedent's parents have not shown that they were dependent upon their son for financial support during his lifetime, but they clearly were "natural objects of his bounty." During the last year of his life he lived in their home and made contributions to cover room and board for himself, Deena, and their child. Under these circumstances, I am satisfied that decedent's parents suffered "pecuniary injury" by reason of his death. Based on the evidence received at the hearing, I have concluded that they are entitled, jointly, to receive 20 percent of the net settlement fund. The Order of Distribution will so provide.
b. Marcus Lee Shenandoah
Marcus, as the child of a void marriage between the decedent and Roseanne Shenandoah, is legitimate under New York law, Domestic Relations Law § 24(1), as well as under the law of Pennsylvania, his present domicile, 48 Pa.S. § 169.1. There is no impediment to his qualifying, under § 4-1.1, as a distributee of his deceased father.
The evidence presented at the hearing of September 29 establishes to my satisfaction that Marcus sustained a pecuniary injury by reason of his father's death. Decedent gave Marcus significant financial support in the first few months of his life. Later, when decedent left Roseanne for Deena, that support diminished. After decedent's death, Marcus and his mother received the proceeds of a small insurance policy, and Marcus currently receives social security benefits as a surviving dependent of decedent. Finally, it is clear to me that Marcus was a "natural object of decedent's bounty" and, as such, is entitled to share in the settlement proceeds. Gross v. Abraham, supra. His loss was greater, in my judgment, than that sustained by decedent's parents. The Order of Distribution therefore will provide that Marcus will receive 40 percent of the net proceeds of this settlement.
c. Melinda Jill Shenandoah
Under New York law as it existed on March 2, 1972, when this case of action arose, an illegitimate child could not qualify as a distributee of his or her father, unless:
". . . a court of competent jurisdiction [had], during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." EPTL § 4-1.2(a)(2).
Melinda Jill Shenandoah is the decedent's illegitimate daughter, and no order of filiation was entered during the lifetime of her father which would render her "legitimate" under the foregoing section. On its face, therefore, the statute would appear to bar her from sharing in the settlement fund. For two reasons, this is not the case.
First, in several well-reasoned New York decisions this statutory distinction between legitimate and illegitimate children has been overthrown as a denial of equal protection and due process. See, e.g., Matter of Johnson, 75 Misc.2d 502, 348 N.Y.S.2d 315 (1973); Matter of Perez, 69 Misc.2d 538, 330 N.Y.S.2d 881 (1972); Matter of Ross, 67 Misc.2d 320, 323 N.Y.S.2d 770 (1971). These courts opted to "save" the wrongful death statute by expanding it to include illegitimate children.
Second, in 1975 the New York legislature confirmed this judicial construction by amending the EPTL expressly to provide that for purposes of the wrongful death statute,
"an illegitimate child is the distributee of his father." EPTL § 5-4.5. This section has been given retroactive application by at least one New York court. Eckel v. Hassan, 87 Misc.2d 1057, 386 N.Y.S.2d 995 (1976).
New York law on this issue could not be more clear, whether one looks to the 1975 amendment or the line of decisions preceding it. Accordingly, Melinda Jill Shenandoah will be considered a legitimate child of her father and his distributee in this action for wrongful death.
Of all the distributees, Melinda presented the strongest evidence of pecuniary injury, for she was living with her father, and was being fully supported by him, at the time of his death. Like Marcus, she currently receives social security survivor benefits. Melinda is entitled to 40 percent of the net settlement proceeds.
To summarize, the Order of Distribution will provide for payment of decedent's funeral expenses (including reimbursement to the plaintiff for the amount she has paid), costs and expenses of the litigation, and counsel fees, all as prayed for in the petition. The balance will be distributed as follows: 20 percent to the decedent's parents, and 40 percent to each of the decedent's two surviving children. Presumably, guardianships or other appropriate arrangements will have to be made for the protection of the children's shares.
Finally, I would be remiss if I failed to express the Court's appreciation for the diligence, and patience, of counsel, whose dedication to the best interests of their respective clients throughout this unfortunately protracted litigation, has been indeed exemplary.