Matter of Jon David E.

[*1] Matter of Jon David E. 2015 NY Slip Op 51201(U) Decided on August 19, 2015 Sur Ct, Dutchess County Pagones, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 19, 2015
Sur Ct, Dutchess County

Matter of Jon David E. a/k/a Jon D.E., Deceased.



xxxredacted



ANNA J. M-E

Petitioner

address redacted

REBECCA M. BLAHUT, ESQ.

Guardian Ad Litem

McCabe & Mack, LLP

63 Washington Street, P.O. Box 509

Poughkeepsie, New York 12601

HEIDI SEELBACH, Dutchess County Commissioner of Finance

Temporary Administratrix

Dutchess County Building

22 Market Street

Poughkeepsie, New York 12601

DENISE M. CARINO

Successor Executrix

address redacted
James D. Pagones, J.

Anna J. M-E (hereinafter "M-E") has filed a petition pursuant to SCPA §1412 requesting preliminary letters testamentary for the estate of the above named decedent. She is the nominated executrix under decedent's last will, dated November 26, 2008. A separate petition to probate the propounded instrument was filed simultaneously with the 1412 petition.

The Court has taken judicial notice of undisputed court records and files (see Kingsbrook Jewish Medical Center v. Allstate Insurance Company, 61 AD3d 13 [2nd Dept 2009]; Khatibi v. Weill, 8 AD3d 485 [2nd Dept 2004]).

M-E and the decedent were married on October 27, 2002. They are the parents of two unemancipated children: Olivia M.E. (d/o/b 10/01/05) and Sophia R.E. (d/o/b 03/12/02). M-E commenced an action for divorce against the decedent on July 29, 2010. The request for judicial intervention was not filed until October 8, 2013, at which time the matter was assigned to the undersigned as an Acting Justice of the Supreme Court. During the nearly two year time period in which this matrimonial action was pending before the Court, eleven (11) conferences were held. The Court appointed both an attorney for the children as well as a guardian ad litem for the decedent. The decedent was the subject of an order of protection which required him to maintain a distance of at least five hundred (500) feet from M-E and the children. Each Court appearance of the parties was characterized by mutual distrust, enmity and derision. The decedent had very little contact with his children during this prolonged time frame.

On May 27, 2015, the parties appeared before the Court and attempted to resolve the entire matrimonial action. The parties were directed to return on May 29, 2015, at which time they achieved a plenary oral and written stipulation of settlement of all issues. Their twenty-three (23) page Settlement Stipulation was "so-ordered" by the undersigned on that date. The settlement stipulation provides in relevant part, particularly at paragraph six (6), as follows:

"Releases and Waivers of Estate Rights. Except as set forth herein, each party hereby releases, waives and relinquishes any and all rights which he or she may now have, or may hereafter acquire, as the other party's spouse under the present or future laws of any jurisdiction or under any Will or testamentary writing now in existence (a) to share in the estate of the other party upon the latter's death; and (b) to act as executor or administrator of the other party's estate. This provision is intended to, and shall constitute, a mutual waiver by the parties to take under any existing Will or testamentary writing of the other or to take or elect against each other's Wills or testamentary writings, now or hereafter in force, under the present or future laws of any jurisdiction whatsoever. The parties intend, by the afore-described waiver and release, to relinquish any and all rights in and to each other's estate including the right of set off not provided in Section 5-3.1 of the Estates, Powers and Trusts Law of the State of New York, any and all distributive shares presently provided in Section 4-1.1 of the Estates, Powers and Trusts law and all rights of election presently provided for in Section 5-1.1A of said Law or any prior or subsequent similar provisions of law of this or any other jurisdiction. However, the foregoing shall not bar a claim on the part of either party [*2]against the estate of the other for any cause or causes arising out of a breach of this Stipulation during the lifetime of the deceased party against whose estate such claim may be made. In the event either party is a beneficiary of a bequest of the other's Last Will and Testament, each party hereby expressly renounces any testamentary disposition."

The parties were directed to submit the findings of fact, conclusions of law and judgment of divorce by July 29, 2015. On July 20, 2015, Jon David E. died.

It is settled in this jurisdiction that where a decedent dies during the pendency of a divorce action, the action abates because the marital relationship between the parties no longer exists (see Matter of Forgione, 237 AD2d 438 [2nd Dept 1997]). An exception to this rule, however, exists where the court has made a final adjudication of divorce but has not preformed the mere ministerial act of entering the final judgment (id.); see also Cornell v. Cornell, 7 NY2d 164, 169-70 [1959].

Here, as in In re Estate of Mirizzi, 187 Misc 2d 481 (Sur Ct, Richmond County 2001), the parties settled their differences before this Court. The parties acknowledged that there existed grounds for divorce and that they had fully resolved all issues. They announced their agreement on the record in open court. Their agreement was reduced to writing and "so-ordered" by the undersigned. There were no outstanding issues requiring judicial intervention or resolution. The only action left, to finalize the divorce, was the mere ministerial act of signing the findings of fact, conclusions of law and judgment of divorce. For all intents and purposes Anna J. M-E and Jon David E. were divorced (see In re Estate of Mirizzi, 187 Misc 2d 481 [Sur Ct, Richmond County 2001] order affirmed by 291 AD2d 451; Cornell v. Cornell, supra.)

Even if Paragraph 6 of the parties' Settlement Stipulation did not exist, the petitioner would still be disqualified from serving as executrix and from receiving a disposition or appointment of property under the propounded instrument by virtue of the revocatory effect established in EPTL §5-1.4(a).

Accordingly, upon consideration of the current petition, review of undisputed court records and files, relevant case and statutory law, the application for the issuance of preliminary letters to Anna J. M-E is denied. Pursuant to the inherent jurisdiction vested in the Court under SCPA §202 letters of temporary administration shall issue to the Dutchess County Commissioner of Finance, which shall remain in effect pending further order of the Court upon qualifying as provided in SCPA §708. The Commissioner is authorized to serve without filing a [*3]bond. The general powers of the temporary administratrix are those set forth in SCPA §903 and SCPA §1412(3)(a).

The validity of the propounded instrument has yet to be determined, and jurisdiction over all necessary parties is incomplete. The decedent nominates a successor executrix in the will. Considering these factors, this Court, by separate order, appoints Rebecca M. Blahut, Esq. as guardian ad litem for the infant issue of the decedent, namely, Sophia R.E. and Olivia M.E.

The parties are directed to appear before the Court on September 17, 2015 at 9:30 a.m. for further proceedings.

The foregoing constitutes the decision and decree of this Court.

Dated:August 19, 2015

Poughkeepsie, New York

ENTER

_______________________________

HON. JAMES D. PAGONES, S.C.J.