Decisions of Interest

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, 874 NYS2d 367 (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” that 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 to “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.”

Law Guardian to Remain on Case, Despite Parent's Objections

A law guardian's request to be removed from a juvenile's delinquency case was denied by Family Court because the conflict was between the law guardian and the juvenile's mother, not with the juvenile, who was the law guardian's actual client. Matter of Malik L., D-2696/09 (Fam. Ct., Queens Cty., 3/4/09) (Hunt, J.).

The Legal Aid Society moved to be relieved from its assignment as a law guardian. Respondent's mother argued she had issues with Legal Aid representing her son, including that the appointed law guardian and others “threatened her son.” The law guardian and son denied the mother's claims, and the juvenile told the court he wanted the law guardian to continue representing him. The court stated the concerns raised by Legal Aid were “understandable” in light of the allegations made by respondent mother and her confrontational position towards the law guardian and others. However, it noted the law guardian was appointed in Family Court proceedings as the attorney for the child and not the child's parent. Therefore, as there were no allegations that a dispute arose between respondent and the law guardian, replacement of the law guardian was not warranted. The court denied the motion to be relieved.

Some Contempt Findings Require Higher Standard of Proof

Family Court erred in applying the “clear and convincing evidence” standard of proof to a contempt proceeding concerning failure to obey a court order, as the possibility of incarceration for a finding of criminal contempt required application of the more stringent “beyond a reasonable doubt” standard. Rubackin v. Rubackin, 2007-07008 (2d Dept., 3/10/09) (Skelos, J.P.; Angiolillo, Leventhall and Belen, J.J.).

A Family Court had found, by a standard of “clear and convincing evidence,” that the appellant disobeyed a protection order, and sentenced him to 30 days in jail. At issue was the standard of proof necessary to sustain a finding that a respondent has failed to obey a lawful order of the Family Court, when the remedy to be imposed is incarceration pursuant to Family Court Act '846-a. The provisions of Family Court Act article 8 governing family offense proceedings do not specify the standard of proof that must be met.

The appellate court found that, while most of the remedies provided for in the Act are civil in nature, imposition of a jail sentence is not intended merely as a means to prevent future injuries to family members; it is also meant to be a punishment for the past behavior of the person who disobeyed the protection order. As such, when an order committing a respondent to a jail term is imposed in accordance with the Act, commitment is punitive and the standard of proof is “beyond a reasonable doubt.” In the present case, however, although Family Court erred in applying the reduced standard of proof, the Second Department panel determined that the appellant indeed had, beyond any reasonable doubt, willfully disobeyed the protection order. So Family Court's error was harmless.

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 , 874 NYS2d 367 (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” that 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 to “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.”

Law Guardian to Remain on Case, Despite Parent's Objections

A law guardian's request to be removed from a juvenile's delinquency case was denied by Family Court because the conflict was between the law guardian and the juvenile's mother, not with the juvenile, who was the law guardian's actual client. Matter of Malik L., D-2696/09 (Fam. Ct., Queens Cty., 3/4/09) (Hunt, J.).

The Legal Aid Society moved to be relieved from its assignment as a law guardian. Respondent's mother argued she had issues with Legal Aid representing her son, including that the appointed law guardian and others “threatened her son.” The law guardian and son denied the mother's claims, and the juvenile told the court he wanted the law guardian to continue representing him. The court stated the concerns raised by Legal Aid were “understandable” in light of the allegations made by respondent mother and her confrontational position towards the law guardian and others. However, it noted the law guardian was appointed in Family Court proceedings as the attorney for the child and not the child's parent. Therefore, as there were no allegations that a dispute arose between respondent and the law guardian, replacement of the law guardian was not warranted. The court denied the motion to be relieved.

Some Contempt Findings Require Higher Standard of Proof

Family Court erred in applying the “clear and convincing evidence” standard of proof to a contempt proceeding concerning failure to obey a court order, as the possibility of incarceration for a finding of criminal contempt required application of the more stringent “beyond a reasonable doubt” standard. Rubackin v. Rubackin, 2007-07008 (2d Dept., 3/10/09) (Skelos, J.P.; Angiolillo, Leventhall and Belen, J.J.).

A Family Court had found, by a standard of “clear and convincing evidence,” that the appellant disobeyed a protection order, and sentenced him to 30 days in jail. At issue was the standard of proof necessary to sustain a finding that a respondent has failed to obey a lawful order of the Family Court, when the remedy to be imposed is incarceration pursuant to Family Court Act '846-a. The provisions of Family Court Act article 8 governing family offense proceedings do not specify the standard of proof that must be met.

The appellate court found that, while most of the remedies provided for in the Act are civil in nature, imposition of a jail sentence is not intended merely as a means to prevent future injuries to family members; it is also meant to be a punishment for the past behavior of the person who disobeyed the protection order. As such, when an order committing a respondent to a jail term is imposed in accordance with the Act, commitment is punitive and the standard of proof is “beyond a reasonable doubt.” In the present case, however, although Family Court erred in applying the reduced standard of proof, the Second Department panel determined that the appellant indeed had, beyond any reasonable doubt, willfully disobeyed the protection order. So Family Court's error was harmless.