Justice Thomas Walsh II
Wife sought dismissal of the subject divorce action arguing husband’s guardian, appointed under Article 81 of the Mental Hygiene Law, lacked the authority to bring or maintain the subject suit. The parties were married in 1979, but husband was injured in a motor vehicle accident in 1982. His injuries resulted in cognitive problems, an inability to recognize his wife or son, and allegedly violent tendencies. Wife claimed husband’s altered mental status required her to leave in 1985 for the safety of their child and herself, and they have not resided together for over 25 years. Wife opined husband would not want the divorce sought in this action. Yet, one of the co-guardians claimed financial benefits would inure to husband’s estate if a divorce were granted. The court noted MHL §§81.21 and 81.22 referred to a list of potential powers "…which may be granted include, but are not limited to…" stating the legislature did not enact an exhaustive list. Therefore, the court concluded that under the instant circumstances, §81.21 conferred on husband’s co-guardian the authority to commence this matrimonial action. Accordingly, the court denied wife’s motion.
