IN RE: Angelo C. CAPUTO

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Angelo C. CAPUTO, deceased. Carmella Caputo, appellant; Anastasia Caputo, respondent.

Decided: November 29, 1999

CORNELIUS J. O'BRIEN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO and NANCY E. SMITH, JJ. John Peter Sipp, Staten Island, N.Y. (Thomas A. Sipp of counsel), for appellant. Behrins & Behrins, P.C., Staten Island, N.Y. (Bruce G. Behrins and Susan R. Schneider of counsel), for respondent.

In a proceeding pursuant to SCPA article 22, the objectant, Carmella Caputo, appeals, as limited by her brief, from so much of an order of the Surrogate's Court, Richmond County (D'Arrigo, S.), dated July 15, 1998, as, after a hearing, dismissed her objections to the validity of a Mexican divorce decree which terminated her marriage with the decedent, Angelo Caputo.

ORDERED that the order is affirmed insofar as appealed from, with costs payable by the objectant personally.

The decedent, Angelo Caputo, and the appellant, Carmella Caputo, were married in 1937 and were divorced in 1970 pursuant to a Mexican divorce decree.   In 1971, the decedent married the respondent, Anastasia Caputo.   The appellant accepted the benefits of a separation agreement, which was incorporated by reference into the Mexican divorce, by endorsing hundreds of maintenance payment checks drawn on an account in the names of the decedent and the respondent.

The decedent died testate in 1992, and his will, which designated the appellant as his former wife and the respondent as his current wife, was probated without objection.   In 1995 the respondent filed objections to a court-ordered account, and the appellant filed objections to the account and to the respondent's objections.   The appellant claimed that the Mexican divorce decree was invalid due to the alleged forgery of the notarized power of attorney, and that she was the surviving wife.   Following a hearing, the Surrogate dismissed the appellant's objections insofar as they related to the validity of the Mexican divorce decree.   We affirm.

 “[A] departure from settled comity principles can be justified only as a rare exception * * * Some evidentiary basis to support the proposition that the particular divorce decree of the foreign country was the product of individualized fraud or coercion or oppression or rested on proximately related public policies fundamentally offensive and inimical to those of this State must be demonstrated” (Matter of Gotlib v. Ratsutsky, 83 N.Y.2d 696, 699-700, 613 N.Y.S.2d 120, 635 N.E.2d 289).

 The appellant failed to sustain her burden of proving that the Mexican divorce decree was invalid due to a fraudulently-obtained power of attorney (see, Matter of Lovick, 201 A.D.2d 736, 608 N.Y.S.2d 310;  Executive Law § 137;  Albany Bank v. McCarty, 149 N.Y. 71, 80, 43 N.E. 427;  Royal Inn v. M.A.F. Realty Corp., 105 A.D.2d 835, 836, 481 N.Y.S.2d 757;  Lum v. Antonelli, 102 A.D.2d 258, 260-261, 476 N.Y.S.2d 921;  cf., Chumsky v. Chumsky, 108 A.D.2d 714, 484 N.Y.S.2d 879).   Moreover, since the appellant accepted the benefits of the foreign divorce decree and failed to challenge it for over 25 years, she is estopped by laches from contesting its validity (see, Capalbo v. Capalbo, 157 A.D.2d 696, 549 N.Y.S.2d 794;  Matter of Guido, 81 A.D.2d 614, 438 N.Y.S.2d 9).

MEMORANDUM BY THE COURT.

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