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Marsico v. Marsico

Superior Court of New Jersey, Chancery Division, Ocean County, Family Part

July 24, 2013

BEVERLY MARSICO, Plaintiff,
v.
LOUIS MARSICO, Defendant

Approved for Publication July 15, 2014.

Page 948

Sylvia L. Breitowich for plaintiff ( Weinberger Law Group, attorneys).

Abigale M. Stolfe for defendant ( Stolfe & Ziegler, attorneys).

OPINION

Page 949

[436 N.J.Super. 486] L. R. JONES, J.S.C.

This case presents the novel question of whether a litigant may appear and testify in divorce proceedings through a designated power of attorney (POA). For the reasons set forth in this opinion, the court declines to authorize such a procedure in this matter.

[436 N.J.Super. 487]FACTUAL BACKGROUND

Plaintiff and defendant are octogenarians, ages eighty and eighty-four respectively. They wed in 1978 and remained married for thirty-five years thereafter. The parties have no children together.

Page 950

Defendant, however, has an adult daughter from a prior marriage, Laura Mertz.

In December 2012, defendant executed a POA appointing Mertz as his " true and lawful attorney-in-fact" over his affairs, and empowering her to conduct a vast array of financial actions on his behalf. Under the terms of the POA, defendant also granted Mertz authority " to institute, prosecute and defend any actions or proceedings brought in any court." Defendant further named Mertz's husband, Timothy Mertz, as his " alternate attorney-in-fact."

Less than three months later, plaintiff retained counsel and filed a complaint for divorce against defendant, seeking equitable distribution of assets acquired during the parties' marriage. In turn, defendant also retained counsel, who filed an answer and counterclaim for divorce on defendant's behalf, along with an accompanying certification pursuant to Rule 5:4-2. Defendant, however, did not sign the certification page personally. Instead, Mertz signed the certification page, in her newly appointed role as defendant's POA.

Upon receipt and review of the answer and certification, plaintiff's counsel objected to Mertz' signing of court papers and appearing on defendant's behalf in the divorce litigation, emphasizing that defendant had never been adjudicated as incompetent or otherwise unable to handle his own affairs. Plaintiff further contended that even if use of a POA was deemed permissible in divorce court, there was nonetheless a potential conflict of interest with Mertz serving as defendant's POA, since Mertz had a personal stake and ...


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