Johnson, Matter of

• Decision Date: 14 March 1997
• Citation: 658 N.Y.S.2d 780,172 Misc.2d 684
• Parties: In the Matter of Jayne JOHNSON et al., Petitioners, Pursuant to Section 81.29(d) of the Mental Hygiene Law to Annul the Marriage Contract Entered into by Dot E. W., an Alleged Incapacitated Person. * Supreme Court, Suffolk County
• Court: New York Supreme Court

Page 780

658 N.Y.S.2d 780

172 Misc.2d 684

In the Matter of Jayne JOHNSON et al., Petitioners Pursuant to Section 81.29(d) of the Mental Hygiene Law to Annul the Marriage Contract Entered into by Dot E W., an Alleged Incapacitated Person ^* Supreme Court, Suffolk County.

March 14, 1997.

Abrams, Graver & Associates, P.C., Lake Success (Ellen L. Flowers, of counsel), and Willard H. DaSilva, Garden City, for petitioners.

Joseph J. Kunzeman, Mineola, for Dot E.W.

William B., New Berlin, pro se.

A. GAIL PRUDENTI, Acting Justice.

In this proceeding commenced pursuant to Article 81 of the Mental Hygiene Law, petitioners request, inter alia, that the post-petition marriage of the alleged incapacitated person be revoked and annulled pursuant to § 81.29(d) of the Mental Hygiene Law. A brief chronology of the material facts underlying such request is appropriate since the petitioners' demands for such relief present this court with a question of first impression.

In May of 1996, petitioners commenced this special proceeding pursuant to Article 81 of the Mental Hygiene Law for a judgment appointing them co-guardians of the person and property of their 84 year old aunt, Dot E.W., an alleged incapacitated person. The petition, originally returnable on July 1, 1996, was adjourned to July 22, 1996, pursuant to a stipulation executed by counsel for the petitioners, the court evaluator and an attorney who appeared for William B., the person with whom Ms. W. had been residing, and Ms. W. However, by short form order dated July 12, 1996, the court granted the joint application of the petitioners and the court evaluator for the appointment of independent counsel for Ms. W. On July 14, 1996, William B. married Dot E.W. in a civil ceremony before a retired justice of the Town of New Berlin, Chenango County, New York.

At a conference on the adjourned date of the petition, it became apparent that Mr. B. was opposed to the appointment of the petitioners as co-guardians of his wife. However, counsel did agree to the entry of an order restraining the financial institutions at which Ms. W.'s liquid assets were deposited and to the appointment of her counsel as temporary guardian with limited powers over her person and property. Orders providing for such relief were entered on August 12, and August 23, 1996. Meanwhile, Mr. B. filed a cross-petition seeking his appointment as guardian of the personal needs of his wife and an independent person as guardian of her property. Nevertheless, by September of 1996, Mr. B. and Ms. W. were no longer residing together. He returned to his home in New Berlin, New York while Ms. W. remained at her home in Hampton Bays where she was cared for by local physicians and home health care providers retained by her temporary guardian.

By supplemental order to show cause dated September 12, 1996, petitioners were granted leave to serve a supplemental petition seeking, among other things, a judgment "revoking and annulling" the July 14, 1996 marriage contract between Dot E.W. and William B. pursuant to § 81.29(d) of the Mental Hygiene Law. Underlying such request were allegations that Ms. W. was incapacitated on the date of the marriage and thus lacked the mental capacity to understand the nature and consequences of the marriage.

Pending the return date of the supplemental petition, counsel for Mr. B. moved for an order granting him leave to withdraw pursuant to CPLR 321, which application was granted by short form order dated October 31, 1996. The hearing on the petition, cross-petition and supplemental petition was adjourned to December, 1996 to afford Mr. B. time to retain new counsel and thereafter to January, 1997 due to the unavailability of Ms. W.'s counsel and temporary guardian.

On January 31, 1997, a hearing was held on all pending applications at which the petitioners adduced proof in support of their petition and supplemental petition. William B., who failed to appear by new counsel in accordance with the directives contained in the court's October 31, 1996 order, made no further appearances. Nor did he attend the hearing despite being provided with ample notice sent by the court and petitioners' counsel, receipt of which was confirmed by the court evaluator's telephone conversations with Mr. B. prior to the hearing.

At the hearing conducted on January 31, 1997, the petitioners called ten witnesses in support of their demands for relief including Ms. W.'s current physician, a psychiatrist retained as a medical expert by the petitioners, home health care providers, a banker and relatives of Ms. W. Although present in the courtroom during the course of the hearing, Ms. W. was unable to meaningfully participate therein due to her physical infirmities and diminished cognitive abilities.

The testimony established that Ms. W. had been married for nearly 60 years to Wallace W. Mr. and Mrs. W. were a childless couple who resided most of their life together in Westchester County. They moved to Hampton Bays in the late 1970's upon Mr. W.'s retirement. After Wallace W.'s death in 1992, Ms. W. continued to reside in their Hampton Bays home, but her physical and mental condition began to deteriorate shortly thereafter.

In September of 1993, Ms. W. was found on the floor of her Hampton Bays residence by petitioner, Jayne Johnson, who immediately arranged Ms. W.'s transport to Southampton Hospital at which she was treated for a period in excess of three weeks. Ms. W. was diagnosed as having a myriad of physical maladies including a severe gastric ulcer, gastritis, rib fractures, chronic arterial fibrillation, cerebral atrophy, Wernicke-Korsakoff's psychosis, and alcohol dependency syndrome. On October 18, 1993, Ms. W. was released to a local nursing home. She was discharged therefrom in January of 1994, whereupon she returned to her home in Hampton Bays and was assisted thereat by home health care providers.

In or about the spring of 1994, William B., a high school acquaintance of Ms. W., began corresponding with her. Although Mr. B. resided in New Berlin, New York, a rural upstate community located in Chenango County, Ms. W. began to visit him. By the fall of 1994, Ms. W. and Mr. B. resided together alternating between his home in New Berlin and her home in Hampton Bays.

In May of 1995, Ms. W. suffered an acute embolic stroke and was treated at Southampton Hospital. Discharge therefrom was conditioned upon 24 hour supervision. The diagnosis of her treating physicians indicated that Ms. W. had apparently suffered a prior stroke. The diagnosis of cerebral atrophy and Wernicke-Korsakoff's psychosis was confirmed and manifested itself in confused and mentally impaired behavior. Ms. W. was again hospitalized in the fall of 1995 in Cooperstown, New York for congestive heart failure. Upon discharge, she returned to Mr. B.'s residence in New Berlin.

By January of 1996, Ms. W.'s physician directed that skilled nursing care be provided by reason of her deteriorating physical condition and her confused mental state. In May of 1996, she was diagnosed with dementia. Such diagnosis was consistent with the testimony of petitioner's psychiatric expert who examined Ms. W. in September of 1996. He testified that Ms. W. was then suffering from dementia and in his opinion was suffering therefrom on the date of her marriage to William B. in July of 1996. While his opinion of antecedent incapacity, was "retroacting", it was confirmed rather than contradicted by other direct proof adduced at the hearing (cf. Rattray v. Huntting, 11 A.D.2d 785, 205 N.Y.S.2d 232; Broat v. Broat, 18 N.Y.S.2d 709).

The testimony of other witnesses called by the petitioners established that in or about the fall of 1995, Mr. B. began to engage in a course of conduct which isolated Ms. W. from her friends, family and property. Such conduct included the disconnection of phone service to his New Berlin residence, the nonadmittance of home health care service providers who visited Ms. W., the cancellation of skilled nursing services, and various attempts to access Ms. W.'s financial resources. By 1996, Mr. B. was in exclusive control of Ms. W.'s person. In the spring of 1996, he undertook to have himself appointed by Ms. W. as her attorney in fact. On May 3, 1996, Ms. W. purportedly executed a revocation of a 1993 power of attorney in favor of the petitioners and purportedly executed a new power of attorney in favor of Mr. B. on June 4, 1996.

At the conclusion of the hearing, this court found that Ms. W. was an incapacitated person as that term is defined in § 81.02(b) of the Mental Hygiene Law and issued the findings contemplated by MHL § 81.15(b) & (c). The Court appointed petitioners as co-guardians of the person and property of their aunt and dismissed the cross-petition filed by Willilam B. Additionally, the Court revoked the power of attorney executed by Ms. W. on June 4, 1996, pursuant to MHL § 81.29(d), but reserved decision on petitioners' demands for a judgment revoking and annulling the July 14, 1996 marriage of Ms. W. to Mr. B.

Article 81 of the Mental Hygiene Law was enacted in 1992 after an extensive study of the statutes governing fiduciary appointments for incapacitated persons was undertaken by the New York State Law Revision Commission. Although its initial purpose was the revision of former Article 77 (conservatorship) and former Article 78 (committeeship) of the Mental Hygiene Law, the Commission ultimately found that an entirely new statutory system to provide for the needs of disabled persons was necessary. Such finding was predicated upon the Commission's conclusion that former Articles 77 and 78 of the Mental Hygiene Law failed to provide relief sufficient to meet the needs of persons who, while neither incompetent nor substantially impaired under MHL former Articles 77 and 78, are nevertheless unable to provide for the activities of daily living by reason of functional limitations (see, Recommendation of the Law...