The defendant-former wife moves by Order to Show Cause, dated September 18, 2012, to vacate the Judgment of Divorce, dated September 20, 2005. The Court sua sponte appointed a guardian ad litem for parties' four (4) infant children on March 27, 2013. The plaintiff-former husband is deceased.

The husband and the wife were married in a religious and civil ceremony in the State of New York on June 9, 1997. There are four (4) children of the marriage; age 17, [*2]age 16, age 15, and age 14. In 1999, the husband and wife moved to Delaware, where they continued to reside until the husband's death in February 2011.

After the husband's death, the wife was named the Administrator of his estate in the State of Delaware and the Commonwealth of Pennsylvania ^[FN1]. It is alleged that shortly after, the husband's family arrived from Egypt; they claimed that they should be the Administrator of the husband's estate because the husband and wife were divorced. The husband's family presented a Judgment of Divorce from the State of New York, County of Kings, to the Courts in Delaware and Pennsylvania in order to contest the wife's administration of the husband's will.

The wife alleges that this was the first time she had seen the Judgment of Divorce. She alleges that she was never served with a Summons or Notice of Summons and Complaint or with the Judgment of Divorce. The wife acknowledges that a signature resembling her own does appear on the Affidavit of Defendant in an Action for Divorce and the Stipulation of Settlement, however, she denies having any knowledge of the divorce action and alleges she did not learn of the divorce until after her husband's death when the husband's family contested her being appointed administrator of the husband's estate. The wife further asserts that she and the husband were happily married and resided together as a married couple until his death.

In 1999, the husband and wife moved to Delaware where they continued to reside together until his death. In 2002, the husband and wife purchased a home in New Castle, Delaware ^[FN2]. In addition, the wife stated that she and the husband filed joint tax returns through 2009 stating that they were married ^[FN3]. The wife further alleges that she and the husband were not living in New York at the time of the Judgment of Divorce. In addition, the wife alleges that she never had a signature notarized in New York during the times indicated on the Judgment of Divorce and that she was not present in New York at the time of the Judgment of Divorce.

The wife alleges that during the marriage, the husband would request that she sign [*3]papers for the parties' business. She states that she never read any of the papers and that she would just sign her name where the husband told her to. She further alleges that if the signatures on the Affidavit of Defendant in Action for Divorce and the Stipulation of Settlement are her own, the husband must have had her sign the divorce documents while she was signing other documents related to the parties' business. The wife steadfastly denies having any knowledge that she and the husband were divorced.

Discussion

It is well settled that the court has an obligation to protect the rights of those who may not be able to by reason of age of incapacity to protect themselves (see CPLR 1201). In accordance with CPLR section 1201,

[u]nless the court appoints a guardian ad litem, an infant shall appear by the guardian of his property, if there is no such guardian, by a parent having legal custody, or, if there is no such parent, by another person or agency having legal custody, or, if the infant is married, by an adult spouse residing with the infant, a person judicially declared to be incompetent shall appear by the committee of his property, and a conservatee shall appear by the conservator or his property. A person shall appear by his guardian ad litem is he is an infant and has no guardian of his property, parent, or other person or agency having legal custody, or adult spouse with whom he resides, or if he is an infant, person judicially declared to be incompetent, or a conservatee as defined in section 77.01 of the mental hygiene law1 and the court so directs because of a conflict of interest or for other cause, or if he is an adult incapable of adequately prosecuting or defending his rights.

The appointment of a guardian has been held proper where the parents pecuniary interest is in conflict with those of the children (see Alcantara v. Mendez, 303 AD2d 337, 756 N.Y.S.2d 90 [2 Dept., 2003]["The counterclaim asserted against Ramirez places her pecuniary interests in conflict with those of her children. Therefore, she should be removed as guardian of her children for the purposes of this action (see Boyd v. Trent, 287 AD2d 475, 731 N.Y.S.2d 209 [2 Dept., 2001] Ganiev v. Nazi, 189 Misc 2d 83, 730 N.Y.S.2d 661 [2 Dept., 2001] Shaikh v. Waiters, 185 Misc 3d 52, 57, 710 N.Y.S.2d 873

[N.Y.Sup., 2000])"].

In the application at oral argument, the wife contended, through counsel, that she served herself with the application to vacate the Judgment of Divorce as the estate representative and that this service upon herself satisfies notice to the estate. In it's order appointing the guardian ad litem, the Court noted that

"under these circumstances and in consideration that there are four (4) infant issues whose rights could be affected by the request to vacate the judgment of divorce and the defendant contends that she need not provide notice to anyone other than herself as administrator, the Court appoints a [*4]guardian ad litem pursuant to Article 12 of the CPLR to protect their interests. In furtherance of this appointment, the guardian ad litem is authorized to ascertain the status of Surrogate Courts proceedings in Delaware and Pennsylvania."Thereafter, in order to protect the interests of the parties' children, on March 26, 2013, the court appointed Susan Smith Esq. as a guardian ad litem for four (4) infant children. The court herein also notes that it has an obligation to protect the integrity of it's own judgment."

The Court has the power to order a party in an action with a guardian ad litem to compensate the guardian ad litem for his/her services (see CPLR 1204). In accordance with CPLR section 1204,[a] court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other property

A duly appointed guardian ad litem is entitled to fair and reasonable compensation for her services, even when those services do not provide a result for the infant (see Haynes v. Haynes, 200 AD2d 457, 606 N.Y.S.2d 631 [1Dept., 1994]). When making a determination regarding compensation for a guardian ad litem, the Court must consider the time and attention spent on the case, the results obtained, and the financial situation of the party making the payment (see Alias v. Olahannan, 15 AD3d 424, 789 N.Y.S.2d 726 [2 Dept., 2005]). According to the billing statement submitted into evidence by the guardian ad litem, her hourly rate is $275 and she spent a total of 6.1 hours on this case, for a total fee of $1,677.50. Pursuant to Article 12 of the CPLR, the application for fees [*5]is granted. The Court directs the wife to pay guardian ad litem fees to Susan Smith Esq. in the amount of $1,677.50 within 30 days of a copy of this order with notice of entry of settlement being served upon her counsel. If the wife fails to make said payment, the guardian ad litem may enter judgment against the wife upon filing of an Affirmation of Non-compliance with the Office of the County Clerk together with statutory costs and interest without the need for any further application.

In as much as the wife has failed to cooperate with the guardian ad litem or her own attorney, the post Judgment application is denied. Counsel for the wife has indicated he has not been able to contact his client and while it would have been a more prudent alternative for him to seek to be relieved, his malfeasance does not appear to be purposeful and sanctions pursuant to Rule 130 would not be appropriate at this time.

Conclusion

This shall constitute the decision and order of this court. Counsel for the wife and the guardian ad litem shall serve a copy of this decision and order upon the wife by regular and certified mail no later than thirty (30) days from this date, and the Clerk of the Court issuing the letters testamentary to Pennsylvania and Delaware. A copy of the Affidavit of Service shall be filed with the office of the County Clerk, Kings County within thirty (30) days.

E N T E R:

JEFFREY S. SUNSHINE

J. S. C.