MATTER OF CIMINO

• Citation: 769 N.Y.S.2d 353,196 Misc.2d 434
• Parties: In the Matter of CAROL PITKEWICZ, as Guardian of the Person and Property of STEVEN CIMINO, an Incapacitated Person.
• Decision Date: 23 July 2003
• Court: United States State Supreme Court (New York)

196 Misc.2d 434

769 N.Y.S.2d 353

In the Matter of CAROL PITKEWICZ, as Guardian of the Person and Property of STEVEN CIMINO, an Incapacitated Person.

July 23, 2003.

Randazzo & Randazzo, L.L.P., Huntington, for Linda Cimino.

Haley, Weinblatt & Calcagni, LLP, Hauppauge, for Carol Pitkewicz.

OPINION OF THE COURT

HOWARD BERLER, J.

Pending before the court is an application by Linda Cimino, the former wife of the incapacitated person, Steven Cimino, for an order expanding the guardian's powers. The specific authority sought is:

"1) to provide for the educational support of STEVEN CIMINO'S children, namely Stefany and Joseph Cimino, including payment of one-half of their college tuition, retroactive to their respective first semesters of college; 2) to discontinue payment of health insurance coverage for MR. CIMINO'S children based upon such payments being assumed by Linda Cimino; 3) to discontinue claiming Joseph Cimino as Dependent with respect to STEVEN CIMINO'S Income Tax Returns, based upon such claim being assumed by Linda Cimino; 4) to include STEVEN CIMINO'S children—namely, Anthony Cimino, Stefany Cimino and Joseph Cimino as interested parties herein entitled to receipt of all further reports and accountings herein and notice of all future proceedings with respect to this guardianship."

The guardian has cross-moved for an order "amending the Steven Cimino Supplemental Needs Trust to authorize the Trustee to provide for the educational support of Steven Cimino's children, namely, Stefany Cimino and Joseph Cimino, by paying one-half (1/2) of their college tuition, provided that such amendment will not adversely affect the Medicaid benefits that Steven Cimino presently receives."

Steven Cimino and Linda Cimino were divorced pursuant to a judgment dated March 27, 1992. In accordance with that judgment Steven Cimino was obligated, inter alia, to "keep and maintain hospital and medical insurance coverage as presently provided, or better coverage, for the benefit of the children, so long as he is obligated to make child support payments." The judgment further provided that Steven Cimino "shall claim the child JOSEPH CIMINO as an exemption on his personal income tax returns for income tax purposes so long as he complies with the terms of the Stipulation of Settlement herein executed * * *." Nothing in either the judgment of divorce or the referenced stipulation of settlement refers to an obligation to pay college tuition.

Carol Pitkewicz was appointed as the guardian of Steven Cimino pursuant to an order and judgment dated September 4, 1998. The need for a guardian stemmed from injuries sustained by Steven Cimino subsequent to the divorce action. That order and judgment authorized the establishment of a supplemental needs trust for the benefit of Steven Cimino out of which certain expenses could be paid including child support, premiums for health insurance for Steven Cimino's children, life insurance premiums, medical expenses for the children and "[o]ne-half (½) of the annual college education costs at any State University of New York (S.U.N.Y.) for STEVEN'S son, ANTHONY CIMINO, should he attend such S.U.N.Y. facility."

The duties and obligations of Steven Cimino owing to his former wife and his children, and his rights arising out of the divorce action, are defined by the stipulation of settlement of such action and the judgment of divorce. By her application to modify those duties, obligations and rights by an expansion of the guardian's powers, Linda Cimino is, in effect, seeking to have the court in the guardianship proceeding amend the judgment in the divorce action. The more appropriate application in this part, presently, is for an expansion of the powers of the guardian to include authority to seek modification of the judgment of divorce and to have the power to implement the terms of such judgment upon its modification. This is not the forum for adjusting the duties, obligations and rights of the parties in the divorce action.

An unusual "twist" in this case is that it was the undersigned who issued the judgment of divorce in the action between Steven Cimino and Linda Cimino. The court's computer records reflect that the said matrimonial action has not been reassigned to any other justice's current case inventory. Thus, all the necessary "parties," including the presiding justice, to an application for modification of the judgment of divorce are seemingly present for purposes of the instant application. Nevertheless, the matrimonial action is not part of the undersigned's case inventory and modification of the judgment, if any, should be directed by an IAS justice to whom the case will be assigned in accordance with appropriate procedures.

In order to allow the issues to be considered, the court grants Linda Cimino's motion to the extent of expanding the guardian's powers to allow her to prosecute or defend the interests of Steven Cimino in any proceedings that may be brought for modification of the judgment of divorce or the stipulation of settlement in the divorce action. Currently, the order and judgment appointing the guardian for Steven Cimino gives no authority to the guardian to litigate the issues, or to agree to a modification of the stipulation of settlement or the judgment of divorce. Thus, the guardian's powers are hereby expanded to allow her to do so before the matrimonial part of the court.

The court notes that in that forum, with the consent of the parties, the court may permit amendment of the terms of the divorce stipulation of settlement (cf., Gold v Gold, 156 AD2d 874 [3d Dept 1989]) and the judgment of divorce (cf., Lamberti v Lamberti, 158 AD2d 449 [2d Dept 1990]). Further, in the absence of consent, the court can...