IN THE MATTER OF THE APPOINTMENT OF PITKEWICZ, 23685> (2003)

IN THE MATTER OF THE APPOINTMENT OF CAROL PITKEWICZ, AS GUARDIAN OF THE

PERSON AND PROPERTY OF STEVEN CIMINO, AN INCAPACITATED PERSON.

<23685

SUPREME COURT, STATE OF NEW YORK, SPECIAL TERM, PART VI SUFFOLK COUNTY

July 23, 2003.

  HOWARD BERLER, J.

  Pending before the Court is an application by the Linda Cimino, the
former wife of the incapacitated person, Steven Cimino for an order
expanding the Guardian's powers. The specific authority sought is:

  1) to provide for the educational support of STEVEN
  CIMINO's children, namely Stefany and Joseph Cimino,
  including payment of one-half of their college
  tuition, retroactive to their respective first
  semesters of college;

  2) to discontinue payment of health insurance coverage
  for MR. CIMINO's children based upon such payments
  being assumed by Linda Cimino;

  3) to discontinue claiming Joseph Cimino as Dependent
  with respect to STEVEN CIMINO's Income Tax Returns,
  based upon such claim being assumed by Linda Cimino;
  4) to include STEVEN CIMINO's children -
  namely, Anthony Cimino, Stefany Cimino and Joseph
  Cimino as interested parties herein entitled to
  receipt of all further reports and accountings herein
  and notice of all future proceedings with respect to
  this guardianship.

The Guardian has cross-moved for an order "amending the Steven Cimino
Supplemental Needs Trust to authorize the Trustee to provide for the
educational support of Steven Cimino's children, namely, Stefany Cimino
and Joseph Cimino, by paying one-half (1/2) of their college
tuition, provided that such amendment will not adversely affect the
Medicaid benefits that Steven Cimino presently receives."

  Steven Cimino and Linda Cimino were divorced pursuant to a judgment
dated March 27, 1992. In accordance with that judgment Steven Cimino was
obligated, inter alia, to "keep and maintain hospital and medical
insurance coverage as presently provided, or better coverage, for the
benefit of the children, so long as he is obligated to make child support
payments." The judgment further provided that Joseph Cimino "shall claim
the child JOSEPH CIMINO" as an exemption on his personal income tax
returns for income tax purposes so long as he complies with the terms of
the Stipulation of Settlement herein executed. . . ." Nothing in either
the judgment of divorce or the referenced stipulation of settlement
refers to an obligation to pay college tuition.

  Carol Pitkewicz was appointed as the Guardian of Steven Cimino pursuant
to an order and judgment dated September 4, 1998. The need for a Guardian
stemmed from injuries sustained by Steven Cimino subsequent to the
divorce action. That order and judgment authorized the establishment of a
Supplemental Needs Trust for the benefit of Steven Cimino out of which
certain expenses could be paid including child support, premium's for
health insurance for Steven Cimino's children, life insurance premiums,
medical expenses for the children and "[o]ne-half (1/2) of the
annual college education costs at any State University of New York
(S.U.N.Y.) for STEVEN's son, ANTHONY CIMINO, should he attend such
S.U.N.Y. facility."

  The duties and obligations of Steven Cimino owing to his former wife
and his children, and his rights arising out of the divorce action are
defined by the stipulation of settlement of such action and the judgment
of divorce. By her application to modify those duties, obligations and
rights by an expansion of the Guardian's powers, Linda Cimino is, in
effect, seeking to have the Court in the guardianship proceeding amend
the judgment in the divorce action. The more appropriate application in
this Part, presently, is for an expansion of the powers of the Guardian
to include authority to seek modification of the judgment of divorce and
to have the power to implement the terms of such judgment upon its
modification. This is not the forum for adjusting the duties, obligations
and rights of the parties in the divorce action.

  An unusual "twist" in this case is that it was the undersigned who
issued the judgment of divorce in the action between Steven Cimino and
Linda Cimino. The Court's computer records reflect that the said
matrimonial action has not been reassigned to any other Justice's current
case inventory. Thus, all the necessaries "parties," including the
presiding Justice, to an application for modification of the judgment of
divorce are seemingly present for purposes of the instant application.
Nevertheless, the matrimonial action is not part of the undersigned's
case inventory and modification of the judgment, if any should be
directed by an IAS Justice to whom the case will be assigned in
accordance with appropriate procedures.

  In order to allow the issues to be considered, the Court grants Linda
Cimino's motion to the extent of expanding the Guardian's powers to allow
her to prosecute or defend the interests of Steven Cimino in any
proceedings that may be brought for modification of the judgment of
divorce or the stipulation of settlement in the divorce action.
Currently, the order and judgment appointing the Guardian for Steven
Cimino gives no authority to the Guardian to litigate the issues, or to
agree to a modification of the stipulation of settlement or the judgment
of divorce. Thus, the Guardian's powers are hereby expanded to allow her
to do so before the matrimonial part of the Court.

  The Court notes that in that forum, with the consent of the parties,
the Court may permit amendment of the terms of the divorce stipulation of
settlement (cf., Gold v Gold, 156 A.D.2d 874, 549 N.Y.S.2d 860 [3d Dept
1989]) and the judgment of divorce (cf., Lamberti v Lamberti,
158 A.D.2d 449, 551 N.Y.S.2d 46 [2d Dept 1990]). Further, in the absence
of consent, the Court can modify the judgment as it pertains to the
obligation to pay the children's college tuition upon a proper showing
(see, Domestic Relations Law§ 240(1-b))(7);

  Mrowka v Mrowka, 260 A.D.2d 613, 689 N.Y.S.2d 172 [2d Dept 1999]; York
v York, 247 A.D.2d 612, 669 N.Y.S.2d 362 [2d Dep't 1998]; Allen L. v
Myrna L., 224 A.D.2d 495, 638 N.Y.S.2d 168 [2d Dept 1996]; Manno v
Manno, 196 A.D.2d 488, 600 N.Y.S.2d 968 [2d Dept 1993]). The Court can
also consider which party should be entitled to declare the children as
dependents for income tax purposes (see, Haggerty v Haggerty,
43 A.D.2d 969, 352 N.Y.S.2d 218 [2d Dept 1974]) and make adjustments
[*8]in the obligation to maintain insurance (cf., Miness v Miness,
229 A.D.2d 520, 645 N.Y.S.2d 838 [2d Dept 1996]).

  The Guardian may require the assistance of counsel in any proceedings
in the matrimonial action. If she elects to be represented, counsel must
be from the Office of Court Administration's approved list of counsel for
Guardian's. A proposed order may be submitted to the Court, which, when
signed, will constitute the Court's appointment of such counsel.

  The Guardian, who is also the Trustee of the Supplemental Needs Trust,
has, by her cross motion, in effect, partially agreed to the relief
requested in the motion of Linda Cimino to the extent that she wants to
provide for payment of one-half of the cost of the college education of
Steven Cimino's children from Supplemental Needs Trust funds, provided
that such an amendment of the trust will not adversely affect Steven
Cimino's Medicaid benefits. Amendment of the supplemental needs trust
could be accomplished in this proceeding independent of the divorce
action. The Court, however, declines to direct such amendment at this
time.

  Based on the fact that notice of the current applications was given to
the New York City Human Resources Administration (and not to the Suffolk
County Department of Social Services) the Court assumes that the New York
City Human Resources Administration is the local agency through which
Steven Cimino's Medicaid benefits are being provided. Payment of the
Trust beneficiary's children's college tuition from Trust funds is not
generally a permissible provision of a Supplemental Needs Trust (see,
Matter of Greenstein (Graham), ___ Misc.2d ___, ___ N.Y.S.2d ___ [Sup
Ct, Suffolk County Mar. 27, 2003]). Thus, the Court will require the
express consent of the local agency through which Steven Cimino's
Medicaid benefits are being paid before authorizing the proposed
amendment of the subject Supplemental Needs Trust (cf., Matter of
McMullen, 166 Misc.2d 117, 632 N.Y.S.2d 401 [Sup Ct, Suffolk County,
1995]). The Court will also require proof that, if such tuition is paid,
sufficient trust funds will remain to adequately meet the needs of Steven
Cimino that are not provided by governmental benefits. Finally, the Court
notes, in general, that it approves of the tenor of the Guardian's cross
motion. The Court supports the notion of providing for the education of
Steven Cimino's children, which it suspects would have been approved by
Steven Cimino if he had the capacity to do so. However, the Court sees no
need to provide for retroactive payments, and deems it more appropriate
to provide for such education expenses prospectively.

  In accordance with the foregoing, and upon the following papers
numbered 1 to 9 read on this motion to expand the Guardian's powers
etc., and this cross motion to amend a Supplemental Needs Trust: Notice
of Motion and supporting papers 1-5; Notice of Cross Motion and
supporting papers 6-8; 9; Replying Affidavits and supporting papers
10-11; it is,

  ORDERED that the branches of this motion by Linda Cimino for an order
expanding the Guardian's powers to include the authority: 1) to provide
for the educational support of Steven Cimino's children, namely Stefany
and Joseph Cimino, including payment of one-half of their college
tuition, retroactive to their respective first semesters of college; 2)
to discontinue payment of health insurance coverage for Steven Cimino's
children based upon such payments being assumed by Linda Cimino; 3) to
discontinue claiming Joseph Cimino as Dependent with respect to Steven
Cimino's Income Tax Returns, based upon such claim being assumed by Linda
Cimino, are granted to the extent that the Guardian is granted authority
to represent Steven Cimino's rights and interests in proceedings in the
matrimonial action in which application for modification of the judgment
of divorce may be sought, and it is further

  ORDERED that the Guardian is authorized to select counsel to represent
her in such proceedings in the matrimonial action, provided that such
counsel is on the Office of Court Administration approved list of counsel
for Guardians, and upon such selection of counsel the Guardian may submit
a proposed order to this Part, which order shall constitute the Court's
appointment of such counsel, and it is further

  ORDERED that upon modification of the judgment of divorce, if any, the
Guardian or Linda Cimino may settle an order providing for the expansion
of the Guardian's powers to comply with the specific terms of such
modified judgment, if any, and it is further

  ORDERED that the branch of this motion by Linda Cimino for an order
directing that Steven Cimino's children, Anthony Cimino, Stefany Cimino
and Joseph Cimino be added as interested parties herein entitled to
receipt of all further reports and accountings herein and notice of all
future proceedings with respect to this guardianship, is granted, and it
is further

  ORDERED that this cross motion by the Guardian for an order amending
the Steven Cimino Supplemental Needs Trust to authorize the Trustee to
provide for the educational support of Steven Cimino's children, namely,
Stefany Cimino and Joseph Cimino, by paying one-half (1/2) of their
college tuition, provided that such amendment will not adversely affect
the Medicaid benefits that Steven Cimino presently receives is denied
without prejudice to a renewed application supported by the written
consent of the local agency through which Mr. Cimino's Medicaid benefits
are provided affirmatively stating that such amendment will not adversely
affect the Medicaid benefits that Steven Cimino presently provides, and
further, upon a demonstration that sufficient trust funds will remain to
adequately meet the needs of Steven Cimino that are not provided by
governmental benefits.