## Facts

- Shelton Mallory and Elizabeth Mallory married on August 16, 1959.
- On February 29, 1980, Shelton obtained a default judgment of divorce against Elizabeth.
- On March 8, 1980, Shelton executed a general statutory short-form power of attorney naming Ethel Aikens as his attorney-in-fact.
- On April 7, 1981, the court entered an order vacating the default divorce judgment on consent of counsel for both spouses.
- Aikens, describing herself as Shelton’s “female friend,” applied ex parte for an order to show cause seeking to vacate the April 7, 1981 consent order and thereby reinstate the default divorce judgment.
- Aikens alleged Shelton’s attorney lacked authority to consent to vacatur, that Shelton’s mental condition had deteriorated, and that Elizabeth was holding Shelton “captive” and preventing him from communicating.

## Issues

1. Whether a nonparty holding a general power of attorney from a spouse has capacity or standing to initiate, in her own name, a post-judgment application in that spouse’s matrimonial action to vacate an order affecting marital status.
2. Whether the court should exercise its discretion under CPLR 2214(d) to sign an order to show cause to bring on such an application.

## Decision

- The court declined to sign the proposed order to show cause.
- The court refused to entertain the requested post-judgment relief sought by Aikens.
- The April 7, 1981 consent order vacating the default divorce judgment remained in effect.

## Legal Principles

- Under CPLR 2214(d), an order to show cause is an alternative method of bringing on a motion; issuance is discretionary with the court unless the procedure is specifically required.
- A power of attorney authorizes an agent to act for the principal but does not ordinarily confer independent standing on the agent to litigate, particularly to alter or restore a spouse’s marital status in a matrimonial action.
- Post-judgment applications in matrimonial matters are generally to be made by the parties or by properly constituted representatives recognized by law and the court, not by third-party acquaintances proceeding in their own names.
- Bare allegations of incapacity or coercion do not, without proper procedural safeguards and representation, justify using an ex parte order-to-show-cause procedure to disturb a consent order in a divorce action.

## Conclusion

The court exercised its gatekeeping discretion under CPLR 2214(d) to refuse an order to show cause where a nonparty attorney-in-fact attempted, in her own name, to undo a consent order vacating a default divorce judgment, leaving the vacatur order intact.


Mallory v. Mallory, 113 Misc. 2d 912, 450 N.Y.S.2d 272 (Sup. Ct. Nassau Cnty. 1982)