Phillips v Phillips

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[*1] Phillips v Phillips 2018 NY Slip Op 28396 Decided on December 14, 2018 Supreme Court, New York County Sattler, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 14, 2018
Supreme Court, New York County

Tonya Muro Phillips, Plaintiff,

against

Roger Phillips, Defendant.



307883/2012



Defendant is represented by Bruce A. Young, Esq., 100 Church Street, Suite 800, New York, New York 10007, 646-775-8994

The deceased Plaintiff was represented by Maxine Park, Esq., 40 Wall Street, 28th Floor, New York, New York 10005, 646-512-5750; however the Court did not accept responsive papers from her as her client had died.
Lori S. Sattler, J.

This matrimonial action was commenced by the now deceased Plaintiff-wife ("Plaintiff") more than six years ago. She and Defendant-husband ("Defendant") were married less than four years earlier. During the marriage they had twin daughters who were one year old when this action was commenced and are eight years old now.

Litigation between the parties began when Defendant filed a custody petition in Family Court. The parties agreed to an interim access stipulation giving them equal time, which quickly became unworkable. Thereafter, Plaintiff commenced this action, and the Family Court action was consolidated herein.

At the time of commencement, the parties had already separated. Plaintiff lived in a rental apartment in Brooklyn, while Defendant lived in the marital residence, a condominium in Harlem. During the marriage and until her death, Plaintiff worked at an international educational non-profit organization. Defendant was the monied spouse, earning approximately $250,000 annually at JP Morgan Chase, but soon after commencement he became unemployed.

The Court appointed an Attorney for the Children and a forensic evaluator. The Court then heard a motion for pendente lite support and each party's motion for temporary custody. In a Decision and Order dated December 6, 2012, the Court ordered Defendant to pay $2,684 per month in pendente lite spousal support, $775 per month in pendente lite child support, and 50% of the children's add-on expenses. The Court further denied the requests for temporary custody in light of the ongoing forensic evaluation and access stipulation. Defendant filed a motion to renew and reargue which was denied. He then appealed unsuccessfully. Defendant never fully complied with his Court-ordered support obligations, nor did he credibly document his efforts to find employment similar to that which he had during the marriage. He appeared to focus primarily on modifying his support obligations rather than meeting them, at one point asking for his support obligations to be cancelled altogether.

A five-day custody trial was held in October 2014. After the submission of post-trial briefs, the Court issued a Decision After Trial on March 31, 2015, awarding sole decision-making and primary physical custody to Plaintiff subject to Defendant's parenting time of alternate weekends from Friday to Monday, and a Tuesday overnight after Plaintiff's weekends. The Decision After Trial was reduced to an Order on Custody, Parenting Plan and Counsel Fees ("Custody Order"). Defendant appealed both the Decision After Trial and the Custody Order. The Appellate Division, First Department affirmed the Court's Decision and Order on January 31, 2017. Defendant also moved to vacate the Custody Order, which was denied, and an unsuccessful appeal of that denial was taken.

The Court referred this matter to the Special Referee Part for a financial trial on June 16, 2015. Defendant unsuccessfully appealed the Order of Reference, resulting in a delay of the proceedings. During this period, Plaintiff moved to hold Defendant in contempt for his failure to pay support and interim counsel fees. The motion was referred to the financial trial and Defendant again appealed unsuccessfully.

On September 30, 2015, after an incident during a transition of the children, Plaintiff filed a family offense petition in New York Family Court seeking an Order of Protection for herself. Thereafter, Defendant filed his own petition seeking an Order of Protection against Plaintiff for himself and on behalf of the children. This Court re-appointed the Attorney for the Children and consolidated four separate family offense docket numbers into the Supreme Court action. Defendant appealed the consolidation and the appeal was denied.

On March 23, 2016, the matter was again referred to the Special Referee Part for the financial trial. After one adjournment, the financial trial finally began on September 15, 2016. The parties appeared for eight days of trial, concluding on October 26, 2016. The Special Referee rendered his Report and Recommendations on May 22, 2017.

From the time the matter was referred for trial until the time the Special Referee rendered his Report, the parties appeared before this Court on additional motion practice regarding the access schedule, and before the Appellate Division on Defendant's appeals. This Court also concluded the family offense hearing, resulting in the dismissal of Defendant's petitions and issuance of a final Order of Protection in Plaintiff's favor against Defendant. The Order of Protection was issued June 5, 2017 and was to remain in effect for two years. An inquest was also held during the hearing.

On June 7, 2017, Plaintiff filed a motion to confirm the Referee's Report. Thereafter, Defendant's attorney, his fourth thus far, moved to be relieved. The Court granted the application and Defendant submitted opposition papers and a cross-motion pro se. The motion was fully briefed and was submitted on September 13, 2017.

The parties' only significant asset is the marital residence. However, during this proceeding, Defendant stopped paying the mortgage and carrying charges and the apartment is now the subject of a foreclosure proceeding pending before a different Justice of this Court. At trial, the Referee recommended that the marital residence be sold and a receiver appointed in light of Defendant's non-cooperation and the apartment's dwindling equity. The Referee further recommended awarding Defendant 65% of the sale proceeds and imputing income of $150,000 to Defendant retroactive to June 2014. He also recommended that Defendant's support arrears be paid from his share of the sale proceeds.

The Court rendered a Decision and Order on January 12, 2018, which adjusted certain minor credits and offsets but otherwise confirmed the Report in its entirety. Accordingly, the Court determined that Defendant owed child support arrears of $62,268.65 and spousal support arrears of $18,034, which were to be paid out of Defendant's share of the proceeds of the sale of the marital residence. On January 23, 2018, a receiver was appointed. Defendant appealed the Court's January 12, 2018 Decision, but no stay was issued.

The custody and financial issues having at long last been resolved, all that remained was for Plaintiff to file the Judgment of Divorce along with the other necessary paperwork to finalize the divorce.

On March 5, 2018, before the Judgment of Divorce and final paperwork were submitted, Plaintiff died suddenly on her way to work. The March 7, 2018 death certificate annexed to Defendant's papers states "Circumstances Undetermined Pending Police Investigation" in the cause of death section. Within days, Defendant moved with the children to Canada, where his sister lives, and they have remained there ever since. On April 18, 2018, Plaintiff's father filed a motion to intervene, which was withdrawn. A separate petition he filed for custody and visitation is now pending before this Court.

On May 7, 2018, Defendant, represented by his fifth attorney, filed Motion Sequence No.17 to abate the action. Plaintiff's former counsel filed a cross-motion asking the Court to sign the Judgment of Divorce nunc pro tunc and for sanctions. The Court held the motion in abeyance pending appointment of an Administrator of Plaintiff's estate in Kings County Surrogate's Court after determining that Plaintiff's former counsel did not have standing to bring the cross-motion on Plaintiff's behalf.

On September 21, 2018, the Kings County Surrogate's Court appointed Defendant as the Administrator of Plaintiff's estate. Thereafter, Defendant filed Motion Sequence #18 in his capacity as the Administrator. He seeks to substitute himself in place of Plaintiff in this action and moves for an order granting his prior motion to abate the action. He also seeks relief which would be ancillary to the action's abatement, including an order vacating the appointment of the receiver and canceling the support arrears owed to Plaintiff. The motions are consolidated for disposition.

"Any order after the death of a party and before the substitution of a legal representative is void" (Faraone v Nat'l Acad. of TV Arts & Scis., 296 AD2d 349 [1st Dept 2002][citing Wisdom v Wisdom, 111 AD3d 13 [1st Dept 1985]). Thus, the Court must first address Defendant's motion to substitute himself as Administrator in place of Plaintiff in this action. Pursuant to CPLR 1015, "If a party dies and the claim for or against him is not thereby extinguished, the court shall order substitution of the proper parties." Therefore, before substitution is made, the Court must determine whether the action has abated.

The Court has held that, when a party died after the trial court confirmed the report of a Special Referee but before a Judgment of Divorce was entered, it was proper to enter the judgment nunc pro tunc to the date of the order confirming the Referee's report (Lewis v Green, 295 AD2d 250 [1st Dept 2002]). The Court stated: "If at the time of the decedent's death nothing remained to be done in the divorce action except enter a judgment, the parties' substantive rights should be determined as if the judgment of divorce had been entered immediately as of the time nothing remained to be done except enter a judgment" (id. at 251).

Therefore, when a court has made its final adjudication in a matrimonial action but has not performed the "mere ministerial act of entering the final judgment," the action does not abate upon the death of a party (Cristando v Lozada, 118 AD3d 846, 847 [2d Dept 2014][quoting Cornell v Cornell, 7 NY2d 164, 170 [1959]; see also Charasz v Rozenblum, 128 AD3d 631 [2d Dept 2015]). The Court has further found that "if a party dies in possession of a vested right to equitable distribution, and that right has been asserted during the party's lifetime in an action in a court of this State, that right survives the party's death and may be asserted by the estate" (Cristando, 118 AD3d, at 847 [quoting Peterson v Goldberg, 180 AD2d 260, 263 (2d Dept 1992)]). In this matter, all issues ancillary to granting a Judgment of Divorce were resolved by the Court's Orders of March 31, 2015 and January 12, 2018, an inquest was held on May 18, 2017, and all that remained was the signing and entry of the Judgment of Divorce. Plaintiff further had a vested right to equitable distribution as set forth in the Court's January 12, 2018 Order, as well as a right to over $60,000 in support arrears. Therefore, the Court finds that the action is not abated by Plaintiff's death.

Having determined that the action does not abate, the Administrator of Plaintiff's estate is the "proper party" pursuant to CPLR 1015. Therefore, the Court must grant the motion for substitution filed by Defendant in his capacity as Administrator. While it would appear that this result creates a conflict for Defendant, this Court is constrained to reach this result absent further [*2]order of the Surrogate's Court.

For the reasons set forth above, the motions to abate and for related relief are denied, except for Defendant's motion to vacate his child support obligation, which will be granted nunc pro tunc as of the date of Plaintiff's death. Defendant, in his capacity as Plaintiff's representative in this action, is directed to file the Judgment of Divorce and all necessary papers within ten (10) days of the date of this Decision and Order.

Due to Defendant's non-payment of the mortgage and carrying charges and the pending foreclosure of the parties' only remaining asset, Plaintiff's estate's ability to recover equitable distribution or support arrears, and in turn the children's ability to benefit therefrom, diminishes with each passing day. Should Defendant fail to timely file the Judgment of Divorce, he risks not only violating this Court's order but also breaching his fiduciary duty as an Administrator, a role that he sought notwithstanding this divorce action and over the objection of Plaintiff's family.

Finally, Rules of Professional Conduct Rule 1.7(a) provides that "a lawyer shall not represent a client if a reasonable lawyer would conclude that . . . the representation will involve the lawyer in representing differing interests." Defendant's counsel represented Defendant when he filed Motion Sequence #18, which was made "in his capacity as the Administrator of the Estate" of Plaintiff. In light of the Court's finding that this action does not abate, Defendant's counsel cannot represent both Defendant and Plaintiff in the same matter, as their interests are undisputedly adverse. Therefore, Defendant's counsel's representation must be limited to his initial representation of Defendant only.

Accordingly, it is hereby,

ORDERED that Defendant, in his capacity as Administrator of Plaintiff's estate, is substituted as Plaintiff's representative in this action; and it is further

ORDERED that the motions to abate this action are denied; and it is further

ORDERED that the child support obligation of Defendant is terminated as of March 5, 2018; and it is further

ORDERED that the Support Collections Unit shall cease collecting child support from Defendant; and it is further

ORDERED that any child support arrears accrued after March 5, 2018 shall be vacated; and it is further

ORDERED that Defendant in his capacity as Plaintiff's representative is directed to file the Findings of Fact and Conclusions of Law, Judgment of Divorce, and related paperwork with the Office of the Matrimonial Clerk within ten (10) days; and it is further

ORDERED that Defendant is directed to serve a copy of this Decision and Order upon the Kings County Surrogate's Court; and it is further

ORDERED that Defendant is directed to serve a copy of this Order on the Office of the New York Child Support Collection Unit, located at 151 West Broadway, 4th Floor, New York, NY 10013.

All relief sought not addressed herein has nevertheless been considered and is denied. A copy of this Decision and Order is being emailed to the parties and counsel on this date.

This constitutes the Decision and Order of the Court.



Dated: December 14, 2018

LORI S. SATTLER, J.S.C.