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Acito v. Acito

February 25, 2009


The opinion of the court was delivered by: Ellen Gesmer, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Plaintiff Marguerite Acito (the Wife) moves for dismissal of this divorce action, based on the death of defendant Thomas Acito (the Husband) on December 9, 2007. Frank T. D'Onofrio, Jr., the court-appointed guardian for the Husband prior to his death, opposes the Wife's motion and cross-moves for an order substituting the Husband's estate for the Husband as the defendant in this action, and for entry of a judgment of divorce nunc pro tunc. For the reasons set forth below, the court grants the Wife's motion and denies Mr. D'Onofrio's cross-motion.


The Husband and Wife were married on September 22, 1968. They had no children together, although each had children from prior relationships.

The Wife commenced this divorce action by filing a summons and complaint on September 24, 2003. The Husband appeared, but never interposed an answer or counterclaims. At the time of commencement, the Husband and Wife were both 78 years old and their children were all adults.

On or about March 14, 2006, the court received a letter from the Putnam County Departments of Mental Health Social Services and Youth Bureau advising the court that the Adult Protective Service Unit (APS) had conducted a psychiatric evaluation of the Husband as part of its investigation into possible financial exploitation of him. The evaluation determined that the Husband did not have "sufficient capacity as it relates to his activities of daily living, including but not limited: to money management, banking, cooking, shopping and housekeeping." As a result of this finding, APS filed a guardianship proceeding under Article 81 of the Mental Hygiene Law in Putnam County Supreme Court (the Guardianship Court), seeking appointment of a guardian of the Husband's person and property (the Guardianship Proceeding).

By a Commission with Findings of Fact and Conclusions of Law dated August 17, 2006 (the Guardianship Commission), 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 Mr. 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 October 22, 2007, the Wife's attorney and Mr. D'Onofrio advised this court that they had reached agreement in principle on the terms of a divorce settlement. I then held an inquest on the Wife's grounds for divorce. I stated on the record that I would reserve decision, "so that when there is a final approval of the stipulation [of settlement of the divorce by the Guardianship Court], I can then decide the grounds for divorce and then you can submit the papers [for the divorce] to be completed." I then set control dates, with the input of Mr. D'Onofrio and the Wife's counsel, for submission of the written stipulation for my approval, and for the parties to return to court on a date by which it was hoped the Guardianship Court would have had time to determine whether or not it approved the settlement terms.

On December 6, 2007, the Wife, the Wife's attorney, and Mr. D'Onofrio signed a "Stipulation and Order" which contained the terms of their divorce settlement (the Agreement). None of the signatures was notarized or acknowledged. On December 6, 2007, at Mr. D'Onofrio's request, I "so ordered" the Agreement. On December 9, 2007, the Husband died. The Agreement was never submitted to the Guardianship Court for approval.

On April 7, 2008, the Putnam County Surrogate's Court issued temporary letters of administration giving the Husband's son, Gregory Acito, limited authority to collect the assets of the Husband and pay all expenses associated with the preservation of real estate in the Husband's name. On May 30, 2008, the Surrogate's Court issued an order additionally authorizing Gregory Acito to "attempt to finalize the divorce" action. Mr. D'Onofrio, whose authority as Guardian for the Husband lapsed by operation of law upon the Husband's death, is now the attorney for Gregory Acito in the Surrogate's Court proceeding.


In arguing that the divorce action must be dismissed, the Wife cites the general rule that a divorce action abates upon the death of one of the parties (Matter of Forgione, 237 AD2d 438 [2nd Dept 1997], lv to appeal den, 90 NY2d 804 [1997]). Mr. D'Onofrio responds that the courts have created a narrow exception to this rule to permit entry of a judgment 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 at 438 [quoting Cornell v Cornell, 7 NY2d 164, 170 [1959]]; see also Zuckerman v Zuckerman, 34 AD2d 403 [1st Dept 2006]). The question, then, is whether there was anything more than a "mere ministerial act" required prior to entry of a judgment of divorce in this case.

In support of her position, the Wife first argues, citing Matisoff v Dobi (90 NY2d 127 [1997]), that the requirement that a matrimonial agreement be "subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded" (DRL §236[B][3]) applies here. Consequently, she argues that the Agreement is neither valid nor enforceable, and could not serve as the basis for entry of a judgment of divorce. However, in Rubenfeld v Rubenfeld (279 AD2d 153 [1st Dept 2001]) the Appellate Division held that [DRL §236(B)(3)] applies only to agreements entered into outside the context of a pending judicial proceeding, such as antenuptial agreements. We do not construe the statute as restricting the ability of the parties to terminate litigation upon mutually agreeable terms especially where, as here, the court has exercised its oversight (279 AD2d at 158, citing Sanders v Copley, 51 AD2d 350 [1st Dept 1989]; see also Scheinkman, Practice Commentaries, McKinneys Cons. Laws of NY, Domestic Relations Law C236B:11 at 343). The Appellate Division in the First Department pointed out that this result was consistent with its holding in Hargett v Hargett (256 AD2d 50 [1st Dept 1998]), where it refused to apply DRL §236[B][3] in a post-divorce context, pointing out that the statute "by its terms, applies only to agreements made before or during the marriage'" (256 AD2d at 50, citing Sanders v Copley, 151 AD2d 350 ...

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