The following papers were read on this motion: Notice of Motion, Affirmation and Affidavit in Support and Exhibits 1 Affirmation in Opposition 2 Affirmation in Further Support 3 DECISION AND ORDER PRELIMINARY STATEMENT Plaintiff (“Wife”) brings this Order to Show Cause seeking an Order vacating the Stipulation of Settlement dated March 17, 2020 (“Stipulation”), Attorney fees and costs and disbursements. The Defendant (“Husband”) opposes the motion in its entirety. BACKGROUND This action was commenced by the Wife in 2018 but a Preliminary Conference was not held until January 2020. The Wife explains that the Defendant (“Husband”) lost his job and they were unable to meet their mortgage payments with Bethpage Federal Credit Union (“BFCU”). BFCU brought a foreclosure action entitled: Bethpage Federal Credit Union v. Schneider, Index Number 603660/2018. Wife explains that the foreclosure was almost completed as there was a sale/auction scheduled for March 31, 2020. Wife contends that her father, Christian Matthiessen, provided the parties a loan in the sum of $74,771.66 to bring the mortgage current. The Stipulation acknowledged the loan to her father, but also set forth that the Husband was giving her a portion of his interest in the marital residence in exchange for an offset of child support. The Husband did not sign the Stipulation, but the Husband’s mother, using a Power of Attorney (“POA”), executed same on his behalf. Wife now requests that the Stipulation of Settlement be deemed void and she be awarded counsel fees and costs for having to bring this motion. The Stipulation sets forth, in pertinent part as follows: Eric Schneider has designated his mother, Diane Schneider, as his Agent with Power of Attorney which will be utilized to execute this Stipulation and the Note and Mortgage attached hereto. Said Power of Attorney is attached herewith as Exhibit “B”. Notwithstanding the utilization of the Power of Attorney, it is represented that Eric J. Schneider, the Husband, has had an opportunity to review and has approved the terms of this agreement. (ARTICLE II, paragraph 8) DISCUSSION Wife argues that the POA itself is invalid and therefore, anything acted thereupon is void. Wife contends that the POA states that there are to be other agents aside from the Husband’s mother, but no other agents are designated. The POA also indicates that there shall be successor agents, as indicated by the Husband’s initials, but none were ever designated. Wife further contends that although the Husband signed the POA, his mother did not which invalidates it under the New York State General Obligations Law Sec. 5-1501B(1)(c). In addition, it was the Husband who signed the page entitled Acceptance of Agent, when it should have been his mother. Wife further argues that the POA was being used because the Husband was entering, or had already entered, into an alcohol treatment program. She contends that the Husband was not restrained, unconscious, mentally incompetent in any other way and entered the treatment voluntarily. As a general matter stipulations entered into between parties are upheld by the courts. In McClorey v. McClorey, 153 AD3d 1252 (2D Dept. 2017), the Appellate Division held: Stipulations of settlement are favored by the courts and not lightly cast aside (Hallock v. State of New York, 64 NY2d 224 [1984]; see Matter of Galasso, 35 NY 319 [1974]. This is all the more so in the case of “open court” stipulations (Matter of Dolgin Eldert Corp., 31 NY2d 1 [1975] pursuant to CPLR 2104, where strict enforcement “not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process” (Hallock v. State of New York, 64 NY2d at 230). “Only where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation” (id, see Libert v. Libert, 78 AD3d 290 [2010]. But the Wife argues that the instant action and Stipulation do not fit into this general standard because this is a matrimonial action and because the POA was invalid. In Matter of Weschler, 3 AD3d 424 (2004), the Appellate Division was presented with the issue of whether a guardian over a party can bring and maintain a divorce proceeding against the spouse of the incompetent individual. Id. The Court held, in pertinent part, as follows: This matter is governed by the decision in Mohrmann v. Kob (291 NY 181 [1943] [construing Civ Prac Act Sec 1377]), which is wholly dispositive of the issue of whether “an action for absolute divorce [may] be maintained by the [guardian] of an insane husband against the latter’s wife.” The Court noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit (id. at 188), and that the husband lacked the capacity to make a competent decision. As to the powers of the guardian to maintain proceedings, it observed that “the use of the word ‘any’ did not include an action for divorce which the Legislature has always treated separately and completely” (id at 189). The Court held that absent statutory authority permitting a guardian to commence a divorce action on behalf of a ward, the courts may not assume to grant such power (id. At 190; see also, Matter of Babushkin, 176 Misc 911 [1941]. While the Court in Matter of Wechsler was dealing with a Guardianship situation, Wife argues that the POA must be treated the same way. She argues that the POA was a standardized Durable Power Of Attorney that did not become valid upon condition precedent. Wife points out the Husband’s arguments that the POA was used for a stipulation that was unrelated to the divorce proceeding and therefore enforceable as it focused on the foreclosure issues with the Marital Residence. However, the Stipulation bears the caption and the index number of the matrimonial action; the Stipulation refers to the property as the Marital Residence; the Stipulation identifies the parties throughout as Husband and Wife; the Stipulation specifically states and mentions that the Marital Residence will be distributed in accordance with the agreement and in lieu of the provision of the Domestic Relations Law; Paragraph 16 specifically states that “Wife shall be entitled to a prepaid Child Support offset made by the Husband to the Wife…which will satisfy the Husband’s child support obligation for the period of 24 months” from the date of the signing of the Stipulation; Article 2 of the Stipulation talks about the child support offset mentioned in paragraph 16 of the Stipulation. Wife therefore argues that the Stipulation was meant for the matrimonial action. The Appellate Court in Mallory v. Mallory, 113 Misc 2d 912 (Sp. Term. 1982) held that a Power of Attorney is not valid in matrimonial actions. Specifically, the Court held that [moveant is not one of the parties to the matrimonial action and in fact, she seeks to dissolve the parties’ married state. The public policy of New York does not permit such interference in the marital state by a third party. The fact that the movant possesses a power of attorney is of no assistance to her. It appears that on this motion…is relying on that portion of the power which give the donee the power to act in “all other matters”. This, however, does not give the donee carte blanche authority because of the statutory construction imposed by Sec. 5-1502L of the General Obligations Law, which states in pertinent part” ‘The language***’all other matters,’ must be construed to mean that the principal authorizes the agent to act as an alter ego of the principal with respect to any and all possible matters and affairs which are not enumerated in section 5-1501A to 5-1502K, inclusive *** and which the principal can do through an agent.’ While a principal might very well be bound by the acts of his agent if the agent were to purchase a car on behalf of the principal, or if the agent were to sell certain goods on behalf of the principal, such is not the case where an agent seeks to obtain a divorce for the principal. In such a situation, you are not dealing with commonplace affairs of the marketplace, but rather in an area of extremely personal concern and one over which there will be strict surveillance by our courts. (Christian v. Christian, 42 NY2d 63.) To read section 5-1501L of the General Obligations Law so as to authorize this agent to obtain a divorce on behalf of her principal would be ludicrous. The only logical application of this statute to these facts would be to exclude the obtaining of a divorce by an agent on behalf of a principal. See also, In re Alan G.W., 51 Misc.3d 998 (Supr Ct. 2016). Wife therefore argues that even had the POA in this instant case been valid it could not be used in this matrimonial action. As set forth above, the Husband failed to submit an affidavit with personal knowledge of the situation revolving around the signing of the Stipulation with the POA. Through an affirmation of his counsel, Husband contends that the Stipulation does not pertain to the matrimonial action and only revolves around the prevention of the foreclosure action. He further contends that if the Wife wants certain clauses to be invalidated, a motion can be made for that, but that should not affect the portion of the agreement which saved the Marital Residence. Husband further argues that Wife was represented by counsel and signed an agreement which provided her what she wanted. The Stipulation clearly saves the Marital Residence from foreclosure with the loan from the Wife’s father, and also provides a child support offset. Further, the Wife admits that she knowingly, based upon advice from counsel, entered into the Stipulation. Her affidavit completely fails to set forth any reasoning for her request to vacate the Stipulation. She does not claim fraud, duress or unconscionability. There is no doubt that the Stipulation is one regarding this divorce action. It is titled with this case, addresses child support in depth and specifically deals with the distribution of the Marital Residence. Accordingly, based upon the case law set forth above which delineates the clear precedent with regard to the use of a Power of Attorney in a matrimonial action, it is hereby ORDERED, that the Stipulation is hereby VACATED in its entirety. The Wife also seeks an award of counsel fees for having to file this motion. She contends that a request was made to Husband’s counsel to stipulate based upon the case law. The Husband’s counsel argues that he is blamed for not discussing this matter but complains about Wife’s counsel’s demeanor during their correspondence and conversation. Although the Wife provides a copy of her retainer agreement with her counsel, she fails to provide a statement of net worth or any billing records for her counsel. Accordingly, the Wife’s request for counsel fees, disbursements and costs is DENIED. This matter is scheduled for a virtual conference on February 3, 2021. All other requested relief, not specifically addressed herein, is hereby DENIED. This constitutes the Decision and Order of this Court. Dated: January 19, 2021
