Competent Party Cannot Appear in Divorce Proceeding Through Power of Attorney

Power of Attroney is not permitted in New Jersey divorce actionNew Jersey trial judge ruled that a litigant may not appear at trial in a divorce case through an agent appointed by the litigant in a power of attorney (POA). Marsico v Marsico, Docket No. FM-15-1152-13-N (Chancery Div., Ocean County, Hon. L.R. Jones, J.S.C.)

Louis and Beverly Marsico are both in their eighties, and married for thirty-five years. The Marsicos had no children together, but Louis had an adult daughter from a prior marriage, Laura Mertz.

In 2012, Louis executed a POA appointing Mertz as his “true and lawful attorney-in-fact” over his affairs. Under the terms of the POA, defendant granted Mertz authority to conduct an array of financial actions on his behalf, among which she could “institute, prosecute and defend any actions or proceedings brought in any court.”

Soon after the POA was signed, Beverly filed a divorce complaint against Louis. Louis retained counsel, who filed an answer and counterclaim for divorce on his behalf. However, Louis did not sign the certification page of the answer personally. Instead, Mertz signed the certification page in her role as her father’s POA. Upon receipt of the answer, Beverly’s counsel objected to Mertz’ signing of court papers and appearing on defendant’s behalf in the divorce litigation, emphasizing that Louis had never been adjudicated as incompetent or unable to handle his own affairs.

The court first noted that, under settled law, a competent person has the right to appoint another person to act on his or her behalf as an “attorney-in fact” under a written POA. This right is embodied in New Jersey’s “Revised Durable Power of Attorney Act”, N.J.S.A. 46:2B-8.1. However, the court found that “a competent party cannot designate a surrogate, either through a purported POA or otherwise, to testify in his or her place without consent of the other party or court order.” The court’s rationale follows:

Given the multiple layers of written and oral testimony which a divorce litigant may need to supply during the course of a case, a participating party cannot be permitted to sidestep his or her testimonial obligations by simply deputizing another person as POA to testify on his or her behalf. Such a process could allow a party who wishes to avoid disclosure of certain information, or personal cross-examination and judicial scrutiny of a relevant issue, to grant POA status to a third person who may have little or no direct personal knowledge of the information at the heart of the inquiry. … If the court permits a POA to testify in place of a party based upon information purportedly supplied by the principal, there is a clear risk that such information will be incomplete or unreliable.

As a result, the trial court “denied without prejudice” defendant’s request to appear in this proceeding by power of attorney through his adult daughter, holding that Mertz was not judicially authorized to sign pleadings, affidavits or certifications, or otherwise testify in writing or verbally on defendant’s behalf.

The trial court’s opinion is annexed hereto – Marsico v Marsico, Docket No. FM-15-1152-13-N (Chancery Div., Ocean County, Hon. L.R. Jones, J.S.C.)

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