A spouse’s pre-divorce judgment death results in the unenforceablitity of divorce action orders, including the automatic orders mandated by Domestic Relations Law §236(B)(2)(b). As a result, Westchester County Supreme Court Justice Paul I. Marx held in his April 17, 2014 decision in A.V.B. v. D.B. that a husband was without a remedy for his wife removing the husband as a beneficiary of her retirment account and life insurance policy.
After 13 years of marriage and two children, the wife commenced this divorce action on September 12, 2012. Pursuant to stipulated Preliminary Conference Orders, it was agreed that the wife would be awarded the divorce on the grounds of irretrievable breakdown, an Attorney for the Child was appointed and the pre-trial schedule was fixed.
On April 22, 2013, the wife committed suicide. During the administration of her Estate, it was learned that on February 14, 2013, while the divorce action was pending, the wife had changed the named beneficiaries on her ING 403(b) account from her husband as her sole beneficiary to the parties’ two children as 50% primary beneficiaries. It was further discovered that on or about March 10, 2013, the wife changed her designation of the husband as the sole named beneficiary on her Prudential life insurance policy to the husband as a 1% primary beneficiary, the parties’ daughter K. as a 49% beneficiary and daughter R. as a 50% beneficiary.
The husband’s counsel then submitted a letter to Justice Marx with a proposed order directing that the named beneficiaries on the wife’s ING account and Prudential life insurance policy revert back to the date of the commencement of the action and directing ING and Prudential to pay out the balance in the wife’s annuity and the “death benefit” under her life insurance policy to the named beneficiaries that existed before the changes were made. At that time, the husband’s lawyer also submitted the supporting affirmation of the attorney for wife’s Estate, declaring that the Estate consented to the proposed order.
Justice Marx declined to sign the proposed order. Instead, the Court scheduled a conference at which the Court directed defense counsel to move by Order to Show Cause. Although no papers were submitted in response to that motion, Justice Marx nevertheless denied it. The relief sought in the motion was not warranted by the law, nor by a good faith extension of the law.
While it is regrettable that Plaintiff violated the automatic orders and seems to have reached beyond the grave to thwart Defendant’s efforts to recover his share of her assets, this Court is unable to remedy the violation in this proceeding.
The husband contended that the wife’s changes to her beneficiary designations violated the terms of the “automatic orders” provided under D.R.L. §236(B)(2)(b). By statute, they were binding on the wife “upon the filing of the summons, or summons and complaint.”
The husband had conceded that a divorce action generally abates upon the death of a party. He argued, however, that as the parties stipulated to grounds prior to Plaintiff’s death, the Court continued to have jurisdiction over this action, because and the entry of a judgment of divorce was therefore nothing more than a ministerial act. The husband also argued that the action did not abate because the wife’s death was a deliberate and intentional act.
The general rule is that a divorce action abates upon the death of either party to theaction, because the marriage relation ceases to exist upon the death of either party. However, as Justice Marx noted, in Cornell v Cornell, 7 NY2d 164, 169, 164 N.E.2d 395, 196 N.Y.S.2d 98 (1959), the Court of Appeals carved out an exception to allow a divorce judgment to be entered where the action had progressed to the point where that “all that remained was the mere ministerial act of entering the final judgment to conform to the adjudication of the substantive rights of the parties which had already been made and was expressed in the decision of the court and the interlocutory judgment that were already on the record.”
This narrow exception to the general rule was expanded in Peterson v Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2nd Dept. 1992), appeal dismissed 81 N.Y.2d 835, 595 N.Y.S.2d 397 (1993), to permit the court to determine ancillary issues, such as equitable distribution, where a foreign judgment of divorce was obtained befire the death of the spouse.
Here the husband argued for a greater expansion of the exception and a finding the Stipulation/Order on grounds in this case constituted the granting of a divorce, which gave the Court jurisdiction to address the ancillary issue concerning the wife’s change of beneficiaries. Justuce Marx disagreed.
Rather, the Court noted that the law was well settled that when a party dies during the pretrial phase of the divorce action with no judicial determination dissolving or terminating the marriage, the Court is divested of jurisdiction over the divorce cause of action and any ancillary issues. Moreover, the Court was without jurisdiction to enforce the prior automatic orders entered in the case. Upon abatement of the action, pendente lite orders are subject to vacatur.
Here, Justice Marx found:
the divorce action abated upon [the wife’s] death, because the action was clearly in the pretrial phase and no adjudication of divorce was rendered prior to her death. Accordingly, the Court lacks jurisdiction to enforce the automatic orders and return the beneficiary designations to their status at commencement of the action.
Comment: Automatic orders expressly “remain in full force and effect during the pendency of the action.”
However, the fact that the divorce action abated on the wife’s death need not be the equivalent of rendering any pendente lite order a nullity. There are instances when divorce action orders remain enforceable even after post-divorce action terminations. Thus, pre-dismissal support arrears may be enforceable even after the divorce action is dismissed. Clemente v, Clemente, 50 A.D.3d 514, 857 N.Y.S.2d 78 (1st Dept. 2008); Cawthon v. Cawthon, 276 A.D.2d 661, 714 n.Y.S.2d 335 (2nd Dept. 2000).
[T]he rule in the Appellate Division, Second Department, is that the court may enforce a pendente lite order by granting leave to enter a money judgment for arrears pursuant to Domestic Relations Law § 244, even after the termination of the action [citations omitted]. Accordingly, although the wife may no longer pursue the contempt proceeding after the dismissal of Action No. 1, the court may still grant leave to enter a money judgment for arrears. Walis v. Walis, 192 A.D.2d 598, 600-601, 596 N.Y.S.2d 167, 169 (2nd Dept. 1993)
Additionally, sequestration orders entered in divorce actions may continue after death. Tuitt v. Tuitt, 36 Misc.2d 418, 232 N.Y.S.2d 973 (Sup. N.Y. Co. 1962). An escrow fund created to secure payment of pendente lite suppport arrears was reachable after death. Mayer v. Mayer, 164 Misc. 2d 320, 624 N.Y.S.2d 749 (Sup. Ct. N.Y. Co. 1995).
Accordingly, if an order entered in an abated divorce action is not a nullity ab initio, should there not be a remedy for its violation?
Moreover, it is common for Preliminary Conference Orders to reiterate the provisions of the automatic orders. If those provisions are agreed; if they are a stipulation, might there not be a contract remedy.
Obviously, the Legislature should address the matter. However, that still leaves counsel left to secure the benefits of the automatic orders while the action is pending. Perhaps certified copies of the Summons, or the Preliminary Conference Order should be served on the retirement funds and insurance companies. Even if not “enforceable,” this might slow down the process of changing beneficiaries.
In this case, the husband was represented by Andrea N. Catalina, Esq., of The Catalina Law Office, of Peekskill. The wife’s Estate was represented by Nussair Habboush, Esq., of Peekskill. The wife was represented by Elizabeth D. Hudak, Esq., of Berkman & Hudak, Esqs., of Carmel. Lauren Morrissey, Esq., of Ossining, was the Attorney for the Children. The contingent beneficiary (the wife’s cousin) was represented by Jacinth Fairweather-Panton, Esq., of White Plains and Edward Smith, of Kapolei, HI.