Case of the Day: Estate of Aquino
Posted on September 20, 2017
The case of the day is Estate of Aquino (Mount Vernon N.Y. City Ct. 2017). Aquino married in New York in 1986 and died in 2011, survived by a wife and seven children. In 2012, the wife petitioned the court for letters of administration allowing her to administer his estate, which the court granted. The wife, though, had given notice of her petition to only three of the children. In 2014, one of the sons who had not received notice sought to revoke the letters of administration and to have himself appointed as administrator on the grounds that his father and his father’s wife were divorced in 1993 in the Dominican Republic.
The wife moved for summary judgment. She offered her affidavit, averring that she and her husband had remained married. The son offered a judgment of divorce, authenticated with an apostille, from a Dominican court, with a certified English translation. The wife responded with some evidence that tended to show that the Dominican judgment was not authentic.
At first glance, this would be a classic question of fact that could not be resolved on summary judgment, and you can imagine a post pointing out that the apostille authenticates a document but not conclusively. But the court found a way around the problem. It was undisputed that the wife had never traveled to the Dominican Republic and that if the husband had obtained a divorce as the son claimed, he had done so ex parte. Under New York law, “a foreign divorce decree obtained on the ex parte petition of a spouse present but not domiciled in the foreign country will not be recognized in New York where the other nonresident spouse does not appear and is not served with process.” So the wife was entitled to summary judgment despite the son’s divorce judgment with apostille attached.