August 29, 2011
Authored by: Luke Lantta
The class of people who can be appointed guardian or who are statutorily required to receive notice of a guardianship proceeding may be the only people who can later challenge the manner in which a guardian was appointed. Seems pretty intuitive. But what about a situation where two parties are divorced and one ex-spouse has a guardian appointed to go after the other ex-spouse? And the ex-spouse getting sued claims that the guardianship proceeding was a fraud just to go after him? In fact, the ex-spouse claims, his ex isn’t even incapacitated at all.
In Cacioppo v. Emolo, the New Jersey court of appeals was faced with that question: who has standing to challenge the appointment of a guardian?
After a very bitter divorce action and in the midst of contentious post-judgment matrimonial litigation, Tracey L. DeGroot, the ex-wife of John C. Emolo, went over to a different county than that in which the matrimonial action was pending, did not tell the court that matrimonial litigation was pending in another county, and got Richard K. Cacioppo appointed as her legal guardian. Cacioppo then brought a firestorm of abusive litigation claims against Emolo, his current wife, Emolo’s law partner, Emolo’s law firm, and Emolo’s parents.
Emolo and the other defendants filed a counterclaim and third-party complaint, attacking the manner in which Cacioppo was appointed as DeGroot’s guardian. Emolo claimed that the guardianship was procured by fraud because DeGroot was not incompetent, the court appointing Cacioppo as guardian was not informed of the pending matrimonial litigation, and notice of the guardianship proceeding was not provided to Emolo. The trial court dismissed the counterclaim/third-party complaint with prejudice and without explanation.
On appeal, the New Jersey appellate court affirmed the trial court’s dismissal and explained that Emolo lacked standing to challenge the guardianship appointment. The question of who had standing to attack a guardianship appeared to be a case of first impression in New Jersey. So, the appellate court looked at who could be appointed guardian and who was entitled to receive notice of a guardianship proceeding. An ex-spouse did not fall into either category. Once Emolo and DeGroot were divorced, Emolo became a “mere stranger” to DeGroot, and a “mere stranger” could not bring a guardianship action and was not entitled to notice of a guardianship action.
The appellate court found that Cacioppo’s failure to inform the judge in the guardianship proceeding that DeGroot was embroiled in matrimonial litigation violated New Jersey rules, but it would not “speculate as to the impact of Cacioppo’s withholding.” The court went on to state that “[s]uch a claim can and should only be raised before the issuing court by a person who has standing to do so.” Therein lies the problem.
Who has standing to do so? Emolo claims that he was injured by Cacioppo’s withholding of information and may well have been, but Emolo doesn’t have standing to raise the issue with the court who appointed Cacioppo as guardian. It seems unlikely any non-stranger to DeGroot is going to rush into court to attack her guardian. So, apparently, it’s a wrong without a remedy.