In the Matter of a Mail Dispute Between

CATHERINE V. D'ANGELO

and

ZOITA D'ANGELO

P.S. Docket No. MD 02-47

APPEARANCE FOR DISPUTANT CATHERINE V. D’ANGELO:
Mark Perlman, P.A.
1820 East Hallandale Beach Blvd.
Hallandale Beach, FL 33009-4717

APPEARANCE FOR DISPUTANT ZOITA D’ANGELO:
James M. Painter, P.A.
1300 North Federal Highway
Suite 110
Boca Raton, FL 33432-2848

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 8, July 16, 1998 (with Revisions through December 27, 2001)) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution.  The mail in dispute is that addressed to Ernest D'Angelo at 101 Briny Avenue, Apt. #411, Pompano Beach, Florida 33062-5611.  The Pompano Beach Postmaster is currently holding the mail.

            Neither party submitted a sworn statement, as required by 39 C.F.R. §965.5, but Zoita D'Angelo's attorney submitted a sworn statement in her behalf, along with several documents attached, in support of her claim to the disputed mail.  Catherine D'Angelo submitted a letter, with one attachment.

            The following findings of fact are based on the material submitted by the parties, including the material forwarded by the United States Postal Service Law Department, Atlanta Office.

FINDINGS OF FACT

            1.  Catherine D'Angelo married Ernest D'Angelo on May 26, 1963. (Separation and Property Settlement Agreement attached to Law Department submission).

            2.  On March 19, 1999, Catherine and Ernest entered into a Separation and Property Settlement Agreement.  This Agreement set out a detailed division of property.  It also, in paragraph 14, stated that each party would prepare a Last Will and Testament that would make provisions "for the continued maintenance and care of Jeanette D'Angelo upon the death of either party . . .."  The Agreement made no other reference to a will.  (Attached to Law Department submission).

            3.  On May 13, 1999, Ernest executed a Last Will and Testament.  The will named Catherine D'Angelo as his Personal Representative.  The will named Ernest's daughter, Jeanette D'Angelo, as his Personal Representative if Catherine should fail to survive him or not be qualified to serve as Personal Representative.[1] (Attached to Law Department submission).

            4.  On August 18, 1999, the marriage of Catherine and Ernest was ended by a Final Judgment of Dissolution of Marriage in the Circuit Court of Broward County, Florida.  The Final Judgment referred to the Settlement Agreement and made it "part of this final judgment."  The Final Judgment made no reference to the will.  (Attached to Law Department submission).

            5.  At some time after his divorce from Catherine, Ernest D'Angelo married Zoita D'Angelo.  Zoita resides at 101 Briny Avenue, Apt. #411, Pompano Beach, Florida.  (Mr. Painter's January 15, 2002 and February 15, 2002 letters and attachments).

            6.  On November 14, 2001, Ernest D'Angelo died.  The Death Certificate names Zoita as the surviving spouse.  (Death Certificate attached to Mr. Painter's February 15, 2002 letter.)

            7.  On February 15, 2002, Zoita D'Angelo, through her attorney, filed a document titled "Notice of Production of Will" in the Circuit Court for Broward County.  Therein, Zoita D'Angelo states that the attached document is the original will of Ernest D'Angelo and that it was torn in half by Ernest and that Ernest wrote the words "Will No Good" on the first page.  Below these words appears the signature of Ernest D'Angelo.  It appears to be the same signature that is found on the signature page of the will, and on the Settlement Agreement.  (Attachments to Mr. Painter's February 15, 2002 letter.)

            8.  The Postal Operations Manual (POM) contains the following provisions:[2]

612.4              Mail Addressed to Deceased Persons

612.41            Delivery

Mail addressed to a deceased person should be delivered as addressed.  The mail may be received at the address of the deceased by anyone who would normally receive the addressee's mail at that address.  If, after 10 days, there is evidence that the mail is not being picked up, it should be treated as undeliverable.

612.42            Mail That Can Be Forwarded

Mail described in 612.41 may be forwarded to a different address, including that of an appointed executor or administrator, if an order or request is filed at the post office.

            9.  Pertinent provisions of the Florida Probate Code provide as follows:

732.506    Revocation by act.  A will or codicil is revoked by the testator, or some other person in the testator's presence and at the testator's direction, by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.

732.507    Effect of subsequent marriage, birth, or dissolution of marriage.

*  *  *

(2)       Any provisions of a will executed by a married person, which provision affects the spouse of that person, shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage.  After the dissolution, divorce, or annulment, any such will shall be administered and construed as if the former spouse had died at the time of the dissolution, divorce, or annulment of the marriage, unless the will or the dissolution or divorce judgment expressly provides otherwise.

733.301    Preference in appointment of personal representative.  In the granting of letters, the following preferences shall be observed:

(1)  In testate estates:

(a)  The personal representative, or his or her successor, nominated by the will or pursuant to a power conferred in the will.

*  *  *

(2)  In intestate estates:

(a)  The surviving spouse.

DECISION

            Zoita D'Angelo makes a two-pronged argument.  First, she contends that Ernest died intestate because he revoked the will by tearing it and by writing " Will No Good" and signing his name on the first page.  Therefore, under Section 733.301 of the Florida statute she, as the surviving spouse, has preference for appointment as the personal representative of the deceased, which would give her authority to take delivery of the disputed mail.  Second, she contends that, even if the will had not been revoked, Section 732.507(2) of the Florida statute erases any claim Catherine might have had to the decedent's mail.

            I find both of Zoita's arguments to be persuasive. Under either theory, and the terms of POM §612.41, Zoita D'Angelo is entitled to delivery of the mail addressed to Ernest D'Angelo at 101 Briny Avenue, Apt #411.

            The document attached to Catherine D'Angelo's letter has no relevance to this case.  It is a handwritten note by Ernest D'Angelo on December 7, 1998, stating some personal intentions.  Because it predates the divorce of Ernest and Catherine, and because none of the statements has to do with delivery of mail, it has no bearing on this mail dispute.

            This decision deals only with delivery of the mail.  It does not attempt to resolve any issues with regard to the disposition of Ernest D'Angelo's estate or any other underlying disputes between the parties.  If either party obtains a court order directing delivery of mail, postal regulations provide that mail will be delivered in accordance with such an order.  POM §616.3

            The Judicial Officer should issue an order directing that the disputed mail be delivered as directed by Zoita D'Angelo.

                                                                        Bruce R. Houston
                                                                        Chief Administrative Law Judge

     [1]  Jeanette D'Angelo has made no claim to the disputed mail.

     [2]  These same provisions can be found at §D042.2.4 of the Domestic Mail Manual (DMM).