Decisions of Interest

Defendant's son had previously been appointed plenary guardian of the person and property of defendant, with full power to exercise all delegable legal rights and powers of defendant. He, however, stated in his affidavit that his 'father's memory is unreliable, his documents are gone, and there is no way that he can participate in the defense of this action.' He therefore averred that he could not 'effectively defend this action since the allegations of plaintiff's complaint involve extremely personal charges requiring extremely personal responses about events known to only two people on earth, plaintiff and defendant. Neither I nor any guardian can possibly know what transpired in a couple's bedroom and therefore cannot possibly defend against charges that go to the most intimate aspects of someone else's marriage.' In support of his position, the guardian cited to Mohrmann v. Kob, 291 NY 181 (1943) and In re Wechsler, 3 AD3d 424 (1st Dept. 2004), which stand for the pro-position that guardian's cannot sue for divorce on behalf of incapacitated persons.

The court denied defendant's motion, stating that while an incapacitated person cannot sue for divorce, the law does not preclude an incapacitated person, through his guar-dian, from defending a cause of action for divorce; in fact, courts have in previous cases appointed guardians to ensure that a defendant spouse who may be incapacitated is appropriately represented in a divorce proceeding. See, eg, La Vecchia v. La Vecchia, 39 AD2d 699 (1st Dept 1972); Sarfaty v. Sarfaty, 83 AD2d 748 (4th Dept. 1981). The court was unconvinced that a guardian's lack of personal knowledge of the facts of the case should preclude the defendant's being subject to suit for divorce, and stated, 'To the extent that the guardian may not have full participation of his ward in preparing a defense, the guardian here stands in no different position than he would in defending any other action. As the guardian himself points out, the de-fendant may be facing lawsuits brought by former clients of his solo law practice and the Internal Revenue Service. Defending these actions without the full assistance of the defendant will present difficulties too.' In addition, the action was pending for 1.5 years before defendant was deemed incapacitated, which gave him, his counsel and his family substantial time to prepare for a defense in this action.

No Longer Too Soon for 'Changed Circumstances'

Although too little time had passed from the time the parties' custody agreement went into force until the time it was challenged based on 'changed circumstances,' the additional period that it took for this case to go through the appeal process was long enough that a hearing on the issues had become necessary. Joseph F. v. Patricia F., '- N.Y.S.2d ”, 2006 WL 2691546 (2nd Dept., 9/19/06) (Miller, J.P., Luciano, Rivera and Spolzino, JJ.).

On Oct. 20, 2003, the parties entered into a custody agreement, which was incorporated but not merged into a judgment of divorce dated Feb. 11, 2004. The father, just six months later, requested a change in the custody arrangement, and on Feb. 22, 2005, after a hearing, Family Court, Orange County, vacated the order of custody and visitation and awarded physical custody of the subject child to the father.

The Appellate Division, Second Department, found on appeal that the father had failed to make a showing that there were changed circumstances such that it would be in the child's best interest to change residential custody from the mother to him. The court noted in particular that it seemed highly unlikely that circumstances could have changed so much in a mere 6 months that an alteration to the custody arrangement would be warranted. Still, because the appellate process had caused more time to elapse since the custody agreement went into force, the court determined that it was now necessary to remand for consideration of the issue of whether a change of circumstances had occurred. Stated the court, '[W]e cannot ignore the additional lapse of time which has occurred during the appellate process, and the possibility that circumstances have indeed changed.' Accordingly, the matter was remitted to the Family Court for a new hearing to determine whether, considering the best interest of the child, current circumstances supported the child's continued residence with the father.

Incompetent Persons May Be Sued for Divorce

Although a guardian appointed to represent a person who has been adjudicated to be incompetent cannot bring a divorce action on behalf of that person, the guardian may defend in such an action. Linda G. v. Norman G., 308862/04 (Sup. Ct., N.Y. Cty. 8/24/06) (Drager, J.).

Plaintiff wife sued for divorce alleging cruel and inhuman treatment and constructive abandonment by defendant husband. Defendant moved for dismissal, arguing the action could not be maintained as he had been adjudicated incapacitated due to Alzheimer's disease. Plaintiff opposed and cross-moved for the appointment of an independent guardian ad litem.

Defendant's son had previously been appointed plenary guardian of the person and property of defendant, with full power to exercise all delegable legal rights and powers of defendant. He, however, stated in his affidavit that his 'father's memory is unreliable, his documents are gone, and there is no way that he can participate in the defense of this action.' He therefore averred that he could not 'effectively defend this action since the allegations of plaintiff's complaint involve extremely personal charges requiring extremely personal responses about events known to only two people on earth, plaintiff and defendant. Neither I nor any guardian can possibly know what transpired in a couple's bedroom and therefore cannot possibly defend against charges that go to the most intimate aspects of someone else's marriage.' In support of his position, the guardian cited to Mohrmann v. Kob , 291 NY 181 (1943) and In re Wechsler , 3 AD3d 424 (1st Dept. 2004), which stand for the pro-position that guardian's cannot sue for divorce on behalf of incapacitated persons.

The court denied defendant's motion, stating that while an incapacitated person cannot sue for divorce, the law does not preclude an incapacitated person, through his guar-dian, from defending a cause of action for divorce; in fact, courts have in previous cases appointed guardians to ensure that a defendant spouse who may be incapacitated is appropriately represented in a divorce proceeding. See, eg, La Vecchia v. La Vecchia , 39 AD2d 699 (1st Dept 1972); Sarfaty v. Sarfaty , 83 AD2d 748 (4th Dept. 1981). The court was unconvinced that a guardian's lack of personal knowledge of the facts of the case should preclude the defendant's being subject to suit for divorce, and stated, 'To the extent that the guardian may not have full participation of his ward in preparing a defense, the guardian here stands in no different position than he would in defending any other action. As the guardian himself points out, the de-fendant may be facing lawsuits brought by former clients of his solo law practice and the Internal Revenue Service. Defending these actions without the full assistance of the defendant will present difficulties too.' In addition, the action was pending for 1.5 years before defendant was deemed incapacitated, which gave him, his counsel and his family substantial time to prepare for a defense in this action.

No Longer Too Soon for 'Changed Circumstances'

Although too little time had passed from the time the parties' custody agreement went into force until the time it was challenged based on 'changed circumstances,' the additional period that it took for this case to go through the appeal process was long enough that a hearing on the issues had become necessary. Joseph F. v. Patricia F., '- N.Y.S.2d ”, 2006 WL 2691546 (2nd Dept., 9/19/06) (Miller, J.P., Luciano, Rivera and Spolzino, JJ.).

On Oct. 20, 2003, the parties entered into a custody agreement, which was incorporated but not merged into a judgment of divorce dated Feb. 11, 2004. The father, just six months later, requested a change in the custody arrangement, and on Feb. 22, 2005, after a hearing, Family Court, Orange County, vacated the order of custody and visitation and awarded physical custody of the subject child to the father.

The Appellate Division, Second Department, found on appeal that the father had failed to make a showing that there were changed circumstances such that it would be in the child's best interest to change residential custody from the mother to him. The court noted in particular that it seemed highly unlikely that circumstances could have changed so much in a mere 6 months that an alteration to the custody arrangement would be warranted. Still, because the appellate process had caused more time to elapse since the custody agreement went into force, the court determined that it was now necessary to remand for consideration of the issue of whether a change of circumstances had occurred. Stated the court, '[W]e cannot ignore the additional lapse of time which has occurred during the appellate process, and the possibility that circumstances have indeed changed.' Accordingly, the matter was remitted to the Family Court for a new hearing to determine whether, considering the best interest of the child, current circumstances supported the child's continued residence with the father.