Opinion
XXX89/05.
Decided October 9, 2007.
Attorney for Movant/J.W.: Steven B. Cottler, Esq.
Attorney for J.W.'s wife: Kenneth Keith, Esq.
Upon the foregoing papers, the application by order to show cause filed by J.W., for an order staying any further proceedings in Supreme Court, Suffolk County with regard to the matrimonial action entitled W. v. W., including the signing of the proposed judgement of divorce, pending a hearing of this matter, was previously granted by this court. W.'s further request for an order finding that the co-guardians, B.W., Esq. and S.B., Esq., acted beyond the scope of their authority, for the removal of said co-guardians and for the appointment of a successor guardian because they acted beyond the scope of their authority is deemed moot. The cross-motion by counsel for J.W.'s wife, C.W., for costs and sanctions in connection with this matter is denied.
By order and judgment dated September 29, 2005, B.W., Esq. and S.B., Esq., were appointed to serve as limited co-guardians of J.W. upon Mr. W.'s consent to said appointment. Pursuant to said order and judgment, the co-guardians' authority extended to, ". . . defense of the pending divorce proceeding entitled C.W. v. J.W. . . . Suffolk County, Supreme Court . . . and any related proceedings . . ." (Order and Judgment, p. 5). The duration of the guardianship was limited to the completion of the pending divorce proceeding which included "settlement negotiations and agreement after consultation by the Co-Guardians with [J.W.] . . ." (Order and Judgment, p. 5). The limited co-guardians were serving without compensation. J.W. now moves for, inter alia, an order staying the Suffolk County divorce action pending the hearing of the instant motion, a finding that the co-guardians acted outside the scope of their authority, the removal of the co-guardians and the appointment of a successor guardian.
First, the order to show cause signed by this court on August 3, 2007, granted a temporary restraining order staying any further proceedings in the matrimonial action of W. v. W., pending in Supreme Court Suffolk County. Pursuant to said order to show cause, J.W.'s counsel, Steven B. Cottler, Esq., was directed to serve Judge William J. Kent III, with a copy of the order to show cause and the papers upon which it was based, by certified mail, return receipt requested, on or before August 30, 2007. Mr. Cottler submitted an affidavit of service indicating that Judge Kent was served with the order to show cause, temporary restraining order and verified petition on August 6, 2007. The order to show cause was returnable on September 13, 2007 and was adjourned by stipulation to September 20, 2007.
Despite receiving a copy of the order to show cause and temporary restraining order, Judge Kent signed the judgment of divorce on September 5, 2007 and said judgment was entered on September 11, 2007. That judgment of divorce is however, technically a nullity and should not have been signed after this court issued a temporary restraining order staying the divorce action. It is well settled that, "A judge of a court should not ordinarily reconsider, disturb or overrule an order in the same action of another court of co-ordinate jurisdiction . . ." Mount Sinai Hospital, Inc. v. Davis , 8 AD2d 361 (1st Dept. 1959); Dondi v. Jones , 40 NY2d 8 (1976); Solomon v. Reich , 84 AD2d 812 (2nd Dept. 1981). In Murray v. Goord , 298 AD2d 94 (1st Dept. 2002), the court stated, "As a general matter, it is well settled that unless there is an infirmity of jurisdiction of the subject matter so as to render it void, an order or judgment of a court is binding on all persons subject to its mandate until vacated or set aside on appeal" (citations omitted). Id . at 97.
The action by Judge Kent in ignoring the temporary restraining order issued by this court staying the matrimonial proceedings in Suffolk County pending the hearing of the motion before this court, was improper and inappropriate as Judge Kent did not have the power to overrule this court's temporary restraining order because he sits in a court of concurrent jurisdiction and not an appellate court. Even though this court, in a decision and order dated April 12, 2007, ruled that it was for the presiding judge in Suffolk County to approve any divorce settlement reached by the parties, the parties to the settlement included B.W. and S.B., the co-guardians appointed for J.W. by this court in a guardianship proceeding. Any allegation of impropriety by the co-guardians in reaching a divorce settlement would have had to be determined before any divorce settlement could properly be approved.
Nevertheless, this court recognizing that it is not a court of appellate jurisdiction, cannot vacate the divorce judgment approved by Judge Kent in Suffolk County. Therefore, W.'s motion by order to show cause is deemed moot as the divorce action has already settled. His only recourse is to seek relief from an appellate court.
The cross-motion filed by C.W., J.W.'s wife, for costs and sanctions against J.W. for bringing the instant proceeding is denied in its entirety as she has failed to demonstrate a basis for the award of costs and sanctions.
Accordingly, the motion by order to show cause of J.W. is hereby deemed moot.
Movant is directed to serve a copy of this order with notice of entry upon all parties and file proof thereof with the clerk's office.
This constitutes the decision and order of this court.