In re Donald L.L.

• Decision Date: 10 February 2011
• Parties: In the Matter of the Application of DONALD L.L., Petitioner-Appellant, For the Appointment of a Guardian of the Person and Property of Jessie D.L., an Alleged Incapacitated Person. Robert J. Miceli, Respondent. (Appeal No. 1.) In the Matter of the Application of Donald L.L., Petitioner-Appellant, For the Appointment of a Guardian of the Person and Property of Jessie D.L., An Alleged Incapacitated Person. Robert J. Miceli, Respondent. (Appeal No. 2) Robert J. Miceli, As Guardian of the Person and Property of Jessie D.L., Plaintiff-Respondent, v. Donald L.L. and Patricia Fitzgerald, Defendants-Appellants. (Appeal No. 3.).
• Court: New York Supreme Court — Appellate Division

916 N.Y.S.2d 451
82 A.D.3d 72

In the Matter of the Application of DONALD L.L., Petitioner-Appellant,
For the Appointment of a Guardian of the Person and Property of Jessie D.L., an Alleged Incapacitated Person.
Robert J. Miceli, Respondent. (Appeal No. 1.)
In the Matter of the Application of Donald L.L., Petitioner-Appellant,
For the Appointment of a Guardian of the Person and Property of Jessie D.L., An Alleged Incapacitated Person.
Robert J. Miceli, Respondent. (Appeal No. 2)
Robert J. Miceli, As Guardian of the Person and Property of Jessie D.L., Plaintiff-Respondent,
v.
Donald L.L. and Patricia Fitzgerald, Defendants-Appellants. (Appeal No. 3.).

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 10, 2011.

916 N.Y.S.2d 452

Frank A. Aloi, Rochester, for Petitioner-Appellant and Defendants-Appellants.

Law Offices of Richard A. Kroll, Rochester (Richard A. Kroll of Counsel), Parker Law Office, PLLC, for Respondent and Plaintiff-Respondent.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.

SCONIERS, J.

82 A.D.3d 73

This appeal concerns the issue whether the Equitable Distribution Law (Domestic Relations Law § 236[B] ) is applicable to

82 A.D.3d 74

a stipulation of settlement, entered during proceedings pursuant to article 81 of the Mental Hygiene Law, that divides property in a manner similar to equitable distribution but does not involve the dissolution of a marriage. We conclude that the Equitable Distribution Law is not applicable to this case.

Donald L.L. (defendant) and his wife, the person for whom plaintiff was, inter alia, appointed guardian (hereafter, defendant's wife), were married in 1966. In May 2005, defendant's wife suffered a stroke that caused severe brain damage and left her unable to care for herself. Defendant is also in poor health and is not capable of caring for his wife. Thus, defendant's wife lives in the home of plaintiff, who provides 24-hour care for defendant's wife. In October 2007, defendant commenced a proceeding pursuant to Mental Hygiene Law article 81, seeking, inter alia, an order naming the Catholic Family Center as the guardian of his wife's person and property. Plaintiff cross-petitioned for an order naming himself as guardian of defendant's wife and her property. During proceedings in Supreme Court on January 24, 2008, plaintiff and defendant entered into an oral stipulation of settlement whereby plaintiff would be named the guardian of the person and property of defendant's wife, which the court converted into an order naming plaintiff as the guardian. With plaintiff acting as guardian of defendant's wife, plaintiff and defendant immediately entered into a second oral stipulation of settlement (hereafter, stipulation of settlement) whereby defendant and his wife would live separately, with defendant having the right to visitation. Plaintiff and defendant further stipulated, inter alia, that the marital property of defendant and his wife would be divided between them and that defendant would make weekly "maintenance and support" payments to his wife. The second stipulation included the following statement: "[Plaintiff and defendant] would like to stipulate to settle issues of property settlement and spousal support in the nature of an...