Decisions of Interest

Human Organ Is Not 'Marital Property'

Supreme Court, Nassau County, denied a motion to call an expert to place a value on the kidney the husband had donated to his wife during the marriage, as such a “gift” could not be treated as an item of marital property for the purposes of equitable distribution. Batista v. Batista, 201931/05 (Sup. Ct., Nassau Cty. 2/24/09) (Referee Grob).

A man sought leave to call a physician as an expert witness to determine the “measurable monetary value” of the kidney he had donated to his wife in 2001. The court noted that although case law holds that interspousal gifts made during the tenure of a marriage are marital assets subject to equitable distribution, public policy can override that canon. In this instance, public policy was enunciated in New York's Public Health Law '4307, which specifically prohibits the buying and selling of human organs. Thus, the husband's attempt to obtain $1.5 million for the kidney he donated not only ran afoul of the state's public policy, it might also expose him to felony criminal prosecution. The court therefore denied the husband's motion to call an expert witness to value the kidney.

Fraud Claim Is Really Domestic Claim, So Fed Court Dismissal Upheld

The U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a tort claim for monetary damages brought by a woman against her ex-husband because, although she claimed he committed a fraud against her for which relief could be granted in federal court, her claim actually involved issues concerning a dissolution of marriage, so it was thus within the province of the state courts. Schottel v. Kutyba, Slip Copy, 2009 WL 230106 (C.A.2 (N.Y.),2009).

Plaintiff Wioleta Schottel asserted a fraud claim for monetary damages in federal court, saying her ex-husband had lied to the State court and coerced her into making concessions during their divorce. Specifically, she said he: 1) fraudulently misrepresented to the court the former couple's residences in order to file divorce proceedings in New York; 2) forged her signature on documents relating to the divorce proceeding; and 3) coerced her, “a foreign citizen of the Country of Poland ' without ' counsel,” into signing divorce-related documents whose contents were unknown to her. The complaint stated that, as a result of the defendants' fraud, Schottel had been deprived of custody and visitation rights, resulting in emotional distress, expenses arising from her challenges to the divorce decree and “other substantial damages.” The district court, in dismissing the suit, concluded that “the gravamen of her claim involves a dissolution of marriage-an area at the core of the domestic relations exception.” Schottel v. Kutyba, No. 05-3759 (S.D.N.Y. Apr. 13, 2005).

On appeal, Schottel argued that the district court erred in dismissing her complaint because she had asserted tort claims that were not subject to the domestic relations exception, which “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). (In Ankenbrandt, the U.S. Supreme Court held the domestic relations exception to be inapplicable to a former wife's state-law tort claims for monetary damages against her ex-husband and his female companion who had allegedly committed child abuse. The court there found that the status of the domestic relationship in Ankenbrandt had already been “determined as a matter of state law,” and that that determination had “no bearing on the underlying torts alleged.”)

The court found Ankenbrandt inapposite, as Schottel's complaint, although a tort claim for monetary damages, was actually a dispute concerning the custody of her child. Stated the court: “Unlike Ankenbrandt, where the tort claims were distinct from the domestic relationship, Schottel's tort claims begin and end in a domestic dispute, as evidenced by the request in Schottel's original complaint to have the divorce judgment declared void ab initio. States are better suited to that adjudication.” The judgment of the district court was therefore affirmed.

Incapacitated Man's Death Abates Divorce Action

The death of a man adjudicated to be incompetent abated his divorce action, as the divorce case, although nearly completed, had not been finalized through approval by the Guardianship Court. Acito v. Acito, — N.Y.S.2d —-, 2009 WL 469331 (Sup. Ct, Bronx Cty., 2/25/09)
(Gesmer, J.).

These divorce proceedings were commenced in 2003. Before divorce was granted, the husband was adjudicated incompetent. The Guardianship Court appointed attorney Frank T. D'Onofrio, Jr., a cousin of the husband, as guardian of the husband's person and property. Paragraph 10 of the Guardianship Commission authorized D'Onofrio to “prosecute and defend civil proceedings … and settle and compromise all matters related to such proceedings,” including this divorce action, provided, however, that “all settlements are subject to the approval of [the Guardianship Court].” On Dec. 6, 2007, the wife, her attorney, and D'Onofrio signed a “Stipulation and Order” which contained the terms of their divorce settlement. On that same day, the court “so ordered” the agreement. Three days later, the husband died. The agreement was never submitted to the Guardianship Court for approval.

The wife moved to dismiss the divorce action, citing to the general rule that a divorce action abates upon the death of one of the parties. D'Onofrio opposed, citing to the narrow exception to this rule, which holds that entry of a judgment is permitted where there has been “a final adjudication of divorce but [the court] has not performed the mere ministerial act of entering the final judgment” (Matter of Forgione, 237 AD2d 438 (2d Dept. 1997)).

The wife countered that something more than a “mere ministerial act” was required here to finalize the judgment, because the agreement was never approved by the Guardianship Court and, since a court-appointed guardian only has the powers conferred on him by the guardianship commission (Mental Hygeine law 81.20(a)(1)), D'Onofrio's execution of the agreement did not create a binding divorce settlement until it was approved by the Guardianship Court.

In response, D'Onofrio argued that the Guardianship Court's approval would have been a “mere ministerial act” because, in light of Supreme Court's court's approval of the agreement, the Guardianship Court would have had no choice but “rubber stamp” the agreement, because to do otherwise would have violated the rule that a court should not ordinarily reconsider, disturb or overrule an order of another court of co-ordinate jurisdiction. Mount Sinai Hospital inc. v. Davis, 8 ED2d 361 (1st Dept. 1958). The court could not agree with this argument. Even though it found there was some overlap in the subject matter and personal jurisdiction of Supreme Court and the Guardianship Court, they were not completely “co-ordinate.” “Most significantly,” noted the court, “the Guardianship Court had a duty to review the Agreement solely from the point of view of the purposes to be achieved by the Guardianship, which is different from the role of this court in reviewing the Agreement. Thus, until the Guardianship Court had reviewed and approved the Agreement, it was not valid.” Therefore, the court was unable to enter a divorce judgment in this case based on the agreement. Justice Ellen J. Gessmer went on to write, “This result may appear anomalous, since it is the Wife who is arguing that the Agreement was not valid until approved by the Guardianship Court, even though that review process was certainly not intended for her benefit. That anomaly does not change the result. Mr. D'Onofrio cannot retroactively be given greater authority as guardian than was granted to him by the terms of the Guardianship Commission. Since he only had authority to settle this action under the supervision of the Guardianship Court, the Husband's death cannot increase the scope of his authority to permit him to settle the action without the approval of that court.”

Human Organ Is Not 'Marital Property'

Supreme Court, Nassau County, denied a motion to call an expert to place a value on the kidney the husband had donated to his wife during the marriage, as such a “gift” could not be treated as an item of marital property for the purposes of equitable distribution. Batista v. Batista, 201931/05 (Sup. Ct., Nassau Cty. 2/24/09) (Referee Grob).

A man sought leave to call a physician as an expert witness to determine the “measurable monetary value” of the kidney he had donated to his wife in 2001. The court noted that although case law holds that interspousal gifts made during the tenure of a marriage are marital assets subject to equitable distribution, public policy can override that canon. In this instance, public policy was enunciated in New York's Public Health Law '4307, which specifically prohibits the buying and selling of human organs. Thus, the husband's attempt to obtain $1.5 million for the kidney he donated not only ran afoul of the state's public policy, it might also expose him to felony criminal prosecution. The court therefore denied the husband's motion to call an expert witness to value the kidney.

Fraud Claim Is Really Domestic Claim, So Fed Court Dismissal Upheld

The U.S. Court of Appeals for the Second Circuit affirmed the dismissal of a tort claim for monetary damages brought by a woman against her ex-husband because, although she claimed he committed a fraud against her for which relief could be granted in federal court, her claim actually involved issues concerning a dissolution of marriage, so it was thus within the province of the state courts. Schottel v. Kutyba, Slip Copy, 2009 WL 230106 (C.A.2 (N.Y.),2009).

Plaintiff Wioleta Schottel asserted a fraud claim for monetary damages in federal court, saying her ex-husband had lied to the State court and coerced her into making concessions during their divorce. Specifically, she said he: 1) fraudulently misrepresented to the court the former couple's residences in order to file divorce proceedings in New York; 2) forged her signature on documents relating to the divorce proceeding; and 3) coerced her, “a foreign citizen of the Country of Poland ' without ' counsel,” into signing divorce-related documents whose contents were unknown to her. The complaint stated that, as a result of the defendants' fraud, Schottel had been deprived of custody and visitation rights, resulting in emotional distress, expenses arising from her challenges to the divorce decree and “other substantial damages.” The district court, in dismissing the suit, concluded that “the gravamen of her claim involves a dissolution of marriage-an area at the core of the domestic relations exception.” Schottel v. Kutyba, No. 05-3759 (S.D.N.Y. Apr. 13, 2005).

On appeal, Schottel argued that the district court erred in dismissing her complaint because she had asserted tort claims that were not subject to the domestic relations exception, which “divests the federal courts of power to issue divorce, alimony, and child custody decrees.” Ankenbrandt v. Richards , 504 U.S. 689, 703 (1992). (In Ankenbrandt , the U.S. Supreme Court held the domestic relations exception to be inapplicable to a former wife's state-law tort claims for monetary damages against her ex-husband and his female companion who had allegedly committed child abuse. The court there found that the status of the domestic relationship in Ankenbrandt had already been “determined as a matter of state law,” and that that determination had “no bearing on the underlying torts alleged.”)

The court found Ankenbrandt inapposite, as Schottel's complaint, although a tort claim for monetary damages, was actually a dispute concerning the custody of her child. Stated the court: “Unlike Ankenbrandt, where the tort claims were distinct from the domestic relationship, Schottel's tort claims begin and end in a domestic dispute, as evidenced by the request in Schottel's original complaint to have the divorce judgment declared void ab initio. States are better suited to that adjudication.” The judgment of the district court was therefore affirmed.

Incapacitated Man's Death Abates Divorce Action

The death of a man adjudicated to be incompetent abated his divorce action, as the divorce case, although nearly completed, had not been finalized through approval by the Guardianship Court. Acito v. Acito, — N.Y.S.2d —-, 2009 WL 469331 (Sup. Ct, Bronx Cty., 2/25/09)
(Gesmer, J.).

These divorce proceedings were commenced in 2003. Before divorce was granted, the husband was adjudicated incompetent. The Guardianship Court appointed attorney Frank T. D'Onofrio, Jr., a cousin of the husband, as guardian of the husband's person and property. Paragraph 10 of the Guardianship Commission authorized D'Onofrio to “prosecute and defend civil proceedings … and settle and compromise all matters related to such proceedings,” including this divorce action, provided, however, that “all settlements are subject to the approval of [the Guardianship Court].” On Dec. 6, 2007, the wife, her attorney, and D'Onofrio signed a “Stipulation and Order” which contained the terms of their divorce settlement. On that same day, the court “so ordered” the agreement. Three days later, the husband died. The agreement was never submitted to the Guardianship Court for approval.

The wife moved to dismiss the divorce action, citing to the general rule that a divorce action abates upon the death of one of the parties. D'Onofrio opposed, citing to the narrow exception to this rule, which holds that entry of a judgment is permitted where there has been “a final adjudication of divorce but [the court] has not performed the mere ministerial act of entering the final judgment” (Matter of Forgione, 237 AD2d 438 (2d Dept. 1997)).

The wife countered that something more than a “mere ministerial act” was required here to finalize the judgment, because the agreement was never approved by the Guardianship Court and, since a court-appointed guardian only has the powers conferred on him by the guardianship commission (Mental Hygeine law 81.20(a)(1)), D'Onofrio's execution of the agreement did not create a binding divorce settlement until it was approved by the Guardianship Court.

In response, D'Onofrio argued that the Guardianship Court's approval would have been a “mere ministerial act” because, in light of Supreme Court's court's approval of the agreement, the Guardianship Court would have had no choice but “rubber stamp” the agreement, because to do otherwise would have violated the rule that a court should not ordinarily reconsider, disturb or overrule an order of another court of co-ordinate jurisdiction. Mount Sinai Hospital inc. v. Davis, 8 ED2d 361 (1st Dept. 1958). The court could not agree with this argument. Even though it found there was some overlap in the subject matter and personal jurisdiction of Supreme Court and the Guardianship Court, they were not completely “co-ordinate.” “Most significantly,” noted the court, “the Guardianship Court had a duty to review the Agreement solely from the point of view of the purposes to be achieved by the Guardianship, which is different from the role of this court in reviewing the Agreement. Thus, until the Guardianship Court had reviewed and approved the Agreement, it was not valid.” Therefore, the court was unable to enter a divorce judgment in this case based on the agreement. Justice Ellen J. Gessmer went on to write, “This result may appear anomalous, since it is the Wife who is arguing that the Agreement was not valid until approved by the Guardianship Court, even though that review process was certainly not intended for her benefit. That anomaly does not change the result. Mr. D'Onofrio cannot retroactively be given greater authority as guardian than was granted to him by the terms of the Guardianship Commission. Since he only had authority to settle this action under the supervision of the Guardianship Court, the Husband's death cannot increase the scope of his authority to permit him to settle the action without the approval of that court.”