MHL ARTICLE 81 - New York State Unified Court System

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Matter of Peer (Digney), 50 A.D.3d 1511; 856 N.Y. S. 385 (4 Dept. 2008)
A guardian raised issues concerning the propriety of certain monetary transfers made by the IP’s son
from her assets and was directed by the court to hire forensic accountants to conduct an audit of the
financial records. The son initially failed to produce the financial records required but eventually
did so. The trial court, nevertheless, after the records were produced, held him in civil contempt and
ordered that he be committed to a correctional facility for a term of 90 days as punishment. On
appeal, the Appellate Division reversed the finding of contempt and the commitment holding that
a civil contempt is proper only where the rights of an individual have been harmed by the
contemptor’s failure to obey a court order and that any penalty imposed is designed not to punish but
rather to compensate the injured party or to coerce compliance with the court mandate or both. The
court found that since the son had turned over the records prior to the issuance of the contempt order,
there was no reason to incarcerate nor was any injury sustained that required vindication.
Matter of Kaminester, 17 Misc.3d 1117(A) (Sup. Ct. NY Cty 2007), aff’d and modified,
Kamimester v . Foldes, 51 A.D.3d 528; 2008 NY App Div LEXIS 4315 (1st Dept.), lv dismissed
and denied 11 N.Y.3d 781 (2008) ; subsequent related case, Estate of Kaminster, 10/23/09,
N.Y.L.J. 36 (col.1)(Surr. Ct., NY Cty)(Surr. Glen)
After the death of the IP it was discovered by the Executrix of his estate that his live in girlfriend
had secretly married him in Texas and transferred his property to her name in violation of a
temporary restraining order that had been put into effect during the pendency of the Art 81
proceeding. These acts in violation of the temporary restraining order took place before the trial
court had determined, following a hearing, whether the AIP required the appointment of a guardian.
Upon the petition of the Executrix to the Court that had presided over the guardianship proceeding,
the court “voided and revoked” the marriage and transactions and held the AIP’s purported wife in
civil and criminal contempt of court and ordered her to pay substantial fines. On appeal by the
purported wife, the Appellate Division held that under the circumstances and upon the proof, the
marriage had been properly annulled. In the subsequent case, arising in Surrogate’s Court during
the probate of the IP’s Last Will, the Executrix sought a determination of the validity of the spousal
right of election exercised by the purported spouse, arguing that her marriage to decedent had taken
place 2 1/2 months after a Texas court had appointed a Temporary guardian, during the pendency
of the NY Article 81 proceeding and 2 ½ months before the IP died. Moreover, in the earlier
reported decision of Supreme Court, the court had found that there was a need for a guardian based
on the IP’s cognitive deficits and had posthumously declared the marriage revoked and voided due
to his incapacity to marry. The purported wife argued that her property rights and marriage could
not be defeated by the posthumous annulment because under DRL Sec. 7(2) a marriage involving
a person incapable of consenting to it is “voidable”, becoming null and void only as of the date of
the annulment in contrast to MHL 81.29(d) permitting the Article 81 court to revoke a marriage
“void ab initio,” a distinction critical to the purported wife’s property right. The Surrogate ultimately
held, based upon both statutory and equitable theories, that the marriage had been “void ab initio,”
thus extinguishing the purported wife’s property rights, including her spousal right of election.
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