New York Court Declares Marriage To Incapacitated Spouse Void Ab Initio

In Matter of Nunziata, a December 15, 2021 opinion from the New York Supreme Court, Nassau County, the court vacated a power of attorney and declared a marriage void ab initio with respect to an incapacitated woman taken advantage of by a person in a position of trust, stating: “This guardianship case highlights the predation and exploitation which can occur when a person in a position of trust is given the opportunity to take advantage of an individual who is suffering from diminished mental capacity and slowly sliding into the abyss of dementia.”

The Facts of Matter of Nunziata (Nancy K.)

In 2001, Nancy K., the alleged incapacitated person (“AIP) hired William McEnaney to perform work on her house. At some point between 2002 and 2005, she permitted him to move into the basement level of the house.

On June 20, 2014, Nancy K. executed a will leaving the McEnaney, and another friend, a bequest of $25,000.00.

Nancy K. was first diagnosed with cognitive impairment on February 19, 2016, and dementia on May 1, 2017.

On October 8, 2019, Nancy K. signed advanced directives in favor of McEnaney.  On November 6, 2020, Nancy K. and McEnaney married.

A guardianship proceeding was commenced by the Commissioner of the Nassau County Department of Social Services pursuant to Article 81 of the Mental Hygiene Law.

The County believed it had to intervene on behalf of Nancy K. to protect her from harm and to seek the appointment of a guardian or guardians, other than the cross-petitioner husband, to oversee her personal needs and manage her property interests. The petitioner framed these issues within the context of allegations of elder abuse by the cross-petitioner in the forms of neglect (e.g., frequently bringing Nancy K. to Baldwin Park and allowing her to wander by herself around a park surrounded by sea water), and financial exploitation (in the guise  of a predatory marriage which was entered into to control Nancy K.’s liquid assets of over two million dollars plus real property).

The cross-petition filed by McEnaney, literally filed on the eve of trial, sought to dismiss the petition and permit the cross-petitioner to be appointed permanent guardian of the personal needs and property management for the AIP.

McEnaney claimed and attempted to prove at trial a picture of domestic bliss, that nothing untoward ever happened, and that he should be appointed the guardian of his wife.

The Medical Evidence At Trial

The Court summarized the medical evidence at trial as follows:

The objective medical evidence adduced at trial demonstrated that Nancy K. began to suffer a cognitive decline and impairment within four months after her mother passed away in November 2015. Nancy K.’s primary care physician, Dr. Zupnick, noted on February 15, 2016, that “according to her friend she has been having memory lapses since her mother died in October.” Four days later Dr. Kristin Waldron, a neurologist assessed Nancy K. as having a mild cognitive impairment, which she upgraded one month later to “cognitive impairment.” Dr. Waldron performed a mini-mental status exam (“MMSE”) on Nancy K. on December 29, 2016, and her score was 27 out of 30; on May 1, Dr. Waldron noted that “dementia caregiver education and support was provided.” Dr. Poonam Dulai, a neurologist, examined Nancy K. on November 9, 2017, and found that she “[could] not do 3 step calculations; speech is slow with delayed responses clinically suspect primary dementia ” He prescribed Namenda, a medication for people who have memory loss, and assessed her cognitive score to be 21 out of 30. Dr. Zupnick continued to note her memory loss in 2018, and on April 30, 2019, he noted that she suffered from “[d]ementia with behavioral disturbance” and that she had “limited decision making ability.” Finally, on July 3, 2019, Dr. Zupnick assessed Nancy K. as possessing “Alzheimer’s dementia with behavioral disturbances . Counseling included long conversation about social service suggestion that when her companion leaves the house having someone else stay with her because in the past she has wandered off.”

The Evidence of Predation and Exploitation

Adult Protective Services’ (“APS”) first investigation of Nancy K. and the cross-petitioner occurred in the fall of 2017, but was terminated and closed in 2018 without any action taken.

The current guardianship proceeding began pursuant to a complaint made by a Baldwin Harbor Parks Department employee who testified at trial that the cross-petitioner would frequently bring Nancy into the park during the summer of 2018 and the winter of 2019, and leave her by herself for many hours without a companion to watch her while she wandered around the park and he went to work.  According to Ms. Seminera, the park employees became Nancy K.’s sitter. Consequently, APS began its second investigation into whether Nancy K. was at risk of harm.

Social worker Shirley Rembert testified that after conducting a mini-mental status exam with Nancy K., Nancy did not know the day of the week or the month of the year and received a score of 22/30, in the range of a cognitive deficit. However, both Ms. Rembert and her supervisor, Muriel Jeanty, testified that the result of that MMSE was flawed; Rembert testified that the cross-petitioner was constantly disrupting the test. Rembert further testified that she visited Nancy K. monthly, but that Nancy K. did not participate in the interviews and that the cross-petitioner would inquire about what it would take for APS to close this case. Rembert testified that she informed the cross-petitioner that she needed proof from a medical doctor that Nancy K. did not have a cognitive impairment, which was never supplied. Ms. Jeanty visited Nancy K. on February 20, 2020, to conduct another MMSE; Jeanty testified that any interference or coaching by the cross-petitioner would be considered an incorrect answer. Consequently, Nancy received a score of 7/30, which indicated significant cognitive impairment.

The Power of Attorney

Despite the cross-petitioner’s acute awareness of Nancy K.’s cognitive impairments, or maybe because of them, he arranged with a neighbor, Alex von Kiel, Esq., for Nancy to execute on October 8, 2019, a power of attorney and a health care proxy naming the cross-petitioner as Nancy K.’s agent. Von Kiel testified that he even though he was aware of Nancy K.’s cognitive issues, he proceeded anyway to have her execute the advance directives.

There was no testimonial evidence adduced at trial by the witnesses to the execution of the power of attorney which clearly demonstrated any independent thought and intention by Nancy K. that she wanted to execute that document, that she was aware of the significance of the power of attorney and that she understood what rights she was relinquishing.

The Marriage

On November 6, 2020, the cross-petitioner arranged for he and Nancy K. to be married in a simple ceremony performed by the Long Beach City Manager, Donna Gayden. None of Nancy K. s friends or relatives were informed about the wedding prior to its occurrence; however, the cross-petitioner’s mother and siblings were in attendance. Ms. Gayden testified that when she inquired why Nancy K. had to be held up by the cross-petitioner, she was falsely informed that Nancy K. was recovering from COVID-19.

The Capacity To Marry Under New York Law

The cross-petitioner did not proffer any medical testimony or evidence to refute the medical evidence submitted at trial. Counsel for Nancy K. produced an expert witness, Dr. James Lynch, a psychiatrist, who testified that, based upon his review of Nancy K.’s medical records, Nancy K. did not have the capacity to enter into any contracts, including marriage, by the end of 2017.

“Our law considers marriage in no other light than as a civil contract” ( di Lorenzo v di Lorenzo, 174 NY 467). Domestic Relations Law §10 states that “[m]arriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.” Thus “[a] marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto is incapable of consenting to a marriage for want of understanding” (Domestic Relations Law §7 [2]).

Revocation of contractual transactions is an available remedy under Mental Hygiene Law § 81.29(d), which authorizes the court (in relevant part) to “modify, amend, or revoke any contract, conveyance, or disposition during lifetime or to take effect upon death, made by the incapacitated person prior to the appointment of the guardian if the court finds that the previously executed appointment, power, delegation, contract, conveyance, or disposition during lifetime or to take effect upon death, was made while the person was incapacitated ”

Marriage constitutes a contract within the meaning of Mental Hygiene Law § 81.29 (d) (see, Matter of Dot E.W., 172 Misc 2d 684, 693-694 [1997, Prudenti, J.]; see, Matter of Kaminester v. Foldes, 51 AD3d 528, 529).

What Is the Standard Of Proof To Declare a New York Marriage Void Ab Initio?

The court determined that clear and convincing evidence, the highest evidentiary standard in a civil matter, is the standard of proof to void a marriage contract under New York Law.  Under this standard, the New York court declared the marriage between Nancy K. and McEnaney void ab initio, stating:

[T]he overwhelming circumstantial evidence adduced at trial, such as Nancy K.’s will dated June 14, 2014, and the fact that it took 20 years for them to get married, leads to the only logical inferences and conclusions which can be drawn: that Nancy K. never wanted to marry the cross-petitioner, that she never made a commitment to him to be married, and that the marriage was wrongfully procured. Nancy K. was diagnosed in 2016 with an irreversible, degenerative, cognitive disease. Her inability to make normal, logical decisions about her personal, social and financial affairs created an opportunity for the cross-petitioner to isolate Nancy K. from her long-time close friends and her siblings, and to completely manage her operational finances on a daily, weekly and monthly basis. Moreover, the cross-petitioner could not plausibly deny awareness of Nancy K.’s lack of capacity to consent to the marriage based upon his first-hand knowledge of inter alia Nancy K.’ s behavior and progressive cognitive decline, the treating physicians’ exams, test and reports of her cognitive impairment between 2015 and November 6, 2020, and his action of prohibiting Nancy K. from operating a motor vehicle after she got lost in 2017.

Consequently, it strains credulity to believe that Nancy K., who was incapable of being interviewed by the temporary guardian on March 2, 2021, was mentally competent to marry the cross-petitioner four months earlier on November 6, 2020. Plaintiff’s expert psychiatrist testified that based upon his review of Nancy K.’s medical records that she was not capable of understanding the nature, consequences, and effect of marriage. However, the cross-petitioner failed to meet his required precedential burden of proof to present evidence which was sufficient to refute the conclusions of the petitioner’s and counsel for Nancy K.’s medical expert (see, Matter of Kaminester v. Foldes, 51 AD3d 528, 529 [1st Dept. 2008]; In re Rose S., 293 AD2d 619, 620 [2nd Dept. 2002]).

The court found by clear and convincing evidence that the marriage was void ab initio under New York law on the ground that Nancy K. was “incapable of consenting to a marriage for want of understanding” (Domestic Relations Law § 7 [2]) since she was not able, at the time of the marriage, to comprehend the nature, effect and consequences of the decision to marry.  The Court also found that petitioner established by clear and convincing evidence that Nancy K. is an incapacitated person as defined under Section 81.02 of the Mental Hygiene Law in that she is not able to provide for his own personal needs and property management.  The court appointed a guardian of the person and of the property, declared the marriage null and void, revoked the power of attorney and health care proxy, and directed McEnaney to permanently vacate Nancy K.’s home.

Declaring the marriage void ab initio resulted in McEnaney losing any rights he would have had as a New York surviving spouse after Nancy K.’s passing, or rights in a divorce.  Find your New York probate and guardianship attorney and read about more guardianship cases here.