Opinion
2093/1997.
Decided on January 28, 2010.
On February 24, 2000, the Court issued two Infant's Compromise Orders (the "Orders") for the benefit of the infants Robin Lee and Robert Lee, respectively, wherein the sum of $33,670.24 was deposited in two separate accounts at the Bank of New York in Middletown New York (the "Accounts").
Born January 24, 1994.
The Bank of New York branch where the Accounts were held is know a JP Morgan Chase branch.
The instant petition, filed December 29, 2009, brought by the infants' mother and natural guardian, Charlotte Lee ("Lee"), seeks permission to withdraw from the Accounts the sum of $10,000. Ms. Lee states that she needs the sum of $7,000 to pay "back rent" at the motel where the family has resided for the past three years and "in case" she did not return to work in January "For Rent and clothing school supplies and Fees, Personal items, other household things (beds, dressers, ect)" (sic) (Petition at ¶ 7). Advising the Court that she would "be returning to work some time in January or February 2010", petitioner seeks the sum of $5,000 from each of the Accounts for a total of $10,000.
Lee states that the rent at the motel is $325 per week of $1,300 per month.
Ms. Lee and the children currently live in the Commonwealth of Virginia. When advised by the Court by telephone that since the infants were now each over the age of fourteen years, the Court requires each of the infant's consent prior to deciding the petition, Lee in fact forwarded the January 19, 2010 consent of Robert Lee, stating that since she "couldn't get the other one done so I've changed the amount" and increased the requested amount to $16,000 to be drawn solely from the Account held on behalf of Robert. No other explanation for the $6,000 increase in the requested amount is offered. No explanation as to why the consent of Robin was unattainable is given. No update as to employment status is offered.
However, the petition states that both Robin and Robert along with Lee and another sibling Cory, all reside together at this motel.
A review of the Orders herein reveal that the Accounts were to be held in the name of petitioner, Charlotte Lee, to the credit of each respective infant. Each of the Orders provide that "there may be no partial or full withdrawal [from the Accounts] prior to the age 18 without further order of the Court ". (Orders at p. 2, emphasis supplied.)
Despite the foregoing, Lee candidly discloses that she had made four prior withdrawals from the Accounts [on February 11, 2009 in the amount of $3,000; on March 9, 2009 in the amount of $2,973.89; on April 14, 2009 in the amount of $2,946.45; and on July 29, 2009 in the amount of $3,200] providing as her reason "Back Rent + Care of Children". (Petition at ¶ 5.) A review of the Court File and the County Clerk's File reveals no prior petitions or orders permitting such withdrawals.
It is impossible to tell from the petition whether these sums were taken from one of the Accounts or divided with equal sums drawn from each Accounts, or if these sums were taken from each of the Accounts.
Discussion
At the outset, the petition must be denied as it does not fully comply with New York Court Rule § 202.67 which provides that a petition for the expenditure of the funds of an infant shall comply with CPLR article 12, and also shall set forth:
(1) a full explanation of the purpose of the withdrawal;
(2) a sworn statement of the reasonable cost of the proposed expenditure;
(3) the infant's age;
(4) the date and amounts of the infant's and parents' recovery;
(5) the balance from such recovery;
(6) the nature of the infant's injuries and present condition;
(7) a statement that the family of the infant is financially unable to afford the proposed expenditures;
(8) a statement as to previous orders authorizing such expenditures; and
(9) any other facts material to the application. 22 NYCRR § 202.67(f).
The instant petition fails to set forth many of the requisites required by the Court Rule. However, even if the petition set forth all the data required above, the petition would nevertheless continue to be denied for the following reason.
Parents have a primary duty to support an infant which should not be shifted to the infant. Here, the infant, Robert, consents to this use of his funds which are in trust for him until he becomes 18 years of age. His consent is laudable, but hardly to be deemed wise or binding upon the Court.
New York State case law is replete with instances of court "concern to erect protective hedges around" [ Matter of Marmol, 168 Misc 2d 845, 852-854, 640 NYS2d 969, 974 — 975 (N.Y.Sup., 1996)] infant compromise funds. See, In re A.C., 16 Misc 3d 1119(A), 847 NYS2d 895 (N.Y.Sup., 2007); Conigliaro v. Rosa, 24 Misc 2d 15, 16, 202 NYS2d 560 (Sup.Ct., 1960). Indeed, the purpose of an infant compromise proceeding is to ensure the safeguarding of funds to which an infant becomes entitled as the result of a settlement or judgment. CPLR 1201 et seq.
Thus, despite petitioner's self indicated entitlement to the funds at issue, there are many underlying matters that must be considered when applications for withdrawals of infant funds are requested.
"It is the duty of the court to protect the child's fund until he reaches his majority; it is the duty of the parent to support the child until that event; it is the duty of the petitioner to submit detailed information which would justify the court's authorization to deplete the infant's funds for extraordinary expenses beneficial to the child and not affordable to the parents, and such approved expenditures should be disbursed directly to the creditor . . ." In re Louis, 21 Misc 3d 1126(A), 873 NYS2d 512 (N.Y.Sup.,2008), citing, DeMarco v. Seaman, 157 Misc. 390, 283 N.Y.S. 697 (Sup Ct Queens County 1934) and Matter of Marmol, supra .
The Court is very cognizant of the difficulties many families are facing given the current economic crises. Perhaps the Court may have been more sympathetic to petitioner's plight, but for the fact that she has already withdrawn over $12,000 from the Accounts without the requisite court permission during the past year.
The instant petition is both terse and bare. The petition further does not indicate how Ms. Lee intends to get into a financial position so as to avoid completely depleting the Accounts in the near future or prior to the infants' maturity. There is no indication in this petition that Ms. Lee has made any effort to earn funds to support her family, or that she has made any applications for public assistance to aid in housing, clothing and feeding her family. There is no indication whether child support is paid, or should be paid, on behalf of the infants.
Of grave concern to this Court is the fact that petitioner may be exerting pressure on the infant children to succumb to an "obligation" to support their family via these funds. Ms. Lee cannot use the Accounts at issue here as a "source of income" limited only by the deposited amounts. While this Court is not unwilling to revisit this situation, a clearer petition, with appearances by both the petitioner and the infants, would be required.
For the foregoing reasons the petition is DENIED, albeit without prejudice to a re-application that could cure the deficiencies noted herein.
Furthermore, the Court is very troubled that the depository bank herein, JP Morgan Chase, may have permitted Ms. Lee to withdraw over $12,000 from these Accounts without Court Order. As this bank was not served with the instant petition, nor been given the opportunity to be heard, this Court will not pass any judgment on their action. Nonetheless, the seriousness of the potential repercussions of the bank's actions, as well as the potential for future withdrawals, convinces this Court that notice of the instant decision and order be forthwith provided to the depository bank. There are three such branches within the City of Middletown. As this Court is unaware which of these branches is the actual depository bank branch, notice is given to all branches via the instant order.
WHEREFORE, it is
ADJUDGED AND ORDERED that the petition in all respects is DENIED, and it is further
ORDERED that no further withdrawals shall be permitted from the accounts held in the name of Charlotte Lee, to the credit of Robin Lee or Robert Lee, jointly with an officer of the JP Morgan Chase Manhattan Bank, formerly the Bank of New York, absent further Court Order.
The foregoing shall constitute the judgment, decision and order of the Court.