Boyd v. Edwards

• Decision Date: 03 June 1982
• Citation: 446 N.E.2d 1151,4 Ohio App.3d 142
• Parties: , 4 O.B.R. 234 BOYD, Gdn. of Estate of Edwards, Incompetent, Appellee, v. EDWARDS, Appellant.
• Court: Ohio Court of Appeals

Page 142

4 Ohio App.3d 142

446 N.E.2d 1151, 4 O.B.R. 234

BOYD, Gdn. of Estate of Edwards, Incompetent, Appellee, v. EDWARDS, Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 3, 1982.

Syllabus by the Court

1. Where a guardian sues for divorce on behalf of her ward who has previously been adjudged incompetent, and the suit is opposed by the ward's spouse on the ground that the ward does not want a divorce, and there is testimony that the ward can communicate and express his feelings, the court may not grant a divorce under R.C. 3105.01(K) without first determining if the ward is competent to testify, and to express his intentions as to the divorce.

2. Under R.C. 3105.01(K), the granting of a divorce is within the discretion of the trial judge, and a divorce will not automatically be granted upon proof of two or more years of physical separation between the parties without cohabitation, unless there is evidence that the suing party wants the divorce, in a suit brought by the guardian of a ward previously adjudged incompetent, which suit is opposed by the ward's spouse on the ground that her husband can communicate and does not want the divorce.

George Lowy, Cleveland, for appellee Annie Boyd, guardian.

Deborah Purcell Goshien, Cleveland, for appellant Essie A. Edwards.

PRYATEL, Chief Justice.

Defendant-appellant, Essie A. Edwards, appeals from the granting of a divorce to her husband Charles H. Edwards, an incompetent, whose case was filed by his guardian, Annie Boyd.

The complaint in this action was filed on September 4, 1980, by the husband's sister and guardian Annie Boyd, alleging that she is the guardian of the person and estate of her brother Charles H. Edwards; that Charles and Essie Edwards were married in 1966, and that no children were born of that marriage; ¹ that in 1968 Charles filed a divorce action in this county, which action was pending on December 1, 1970, when Charles suffered an automobile accident, rendering him incompetent; that the 1968 divorce action was thereafter dismissed since "he was unable to conclude the divorce" due to his incompetency; and that Charles and Essie have since lived apart without cohabitation for over the statutory period of two years. ²

Defendant cross-claimed for alimony on January 26, 1981. However, she voluntarily dismissed this cross-claim prior to trial, on May 4, 1981. Defendant also moved for summary judgment, on the grounds that her husband had not expressed the intent necessary to sue for divorce, which motion was overruled.

The court awarded Charles the divorce as prayed for, upon a finding that the parties had been living apart "for more than two years, to-wit, from 1971 to (the present)." No division of property was made pursuant to the divorce decree.

It is undisputed that the parties, Charles and Essie Edwards, have lived apart without cohabitation since 1971, when Charles was released from the hospital to the care of his sister (who since 1976 has also been his guardian), Annie Boyd.

The evidence at trial showed that Charles and Essie Edwards were married on March 7, 1966, in Columbus, Ohio, while Charles was in the Air Force; and that upon Charles' return, they lived together until March 29, 1966, at which time Charles was sent to Vietnam. They lived together at Otis Air Force Base in Massachusetts, from about May to November 1967, when Charles was sent overseas again. Essie testified that her husband had undergone a "personality change" as a result of his tour in Vietnam. In June 1968, Charles filed for divorce, alleging "extreme cruelty" as the ground. Essie cross-petitioned "for alimony and other relief."

On December 1, 1970, while the divorce action was still pending, Charles, on leave from an Air Force base in Topeka, Kansas, had an automobile accident in Columbus, Ohio (where he had gone to visit his wife, who resided there), as a result of which he had cardiac arrest and suffered brain damage from loss of oxygen.

Essie dismissed her petition voluntarily in 1971, and Charles' complaint was dismissed at plaintiff's (his) request in November 1972, according to court records.

Charles was hospitalized from the time of his accident until October 1971, at which time his sister, Annie Boyd, "decided" to take him home from the Dayton hospital where he was then confined to her residence in Cleveland, ³ where Charles has resided ever since.

In February or March 1971, three Air Force psychiatrists determined that Charles was mentally incompetent. In 1972, John Kellogg, attorney for Essie, was appointed Charles' guardian, and George Lowy, attorney for Annie, was made Charles' attorney. This arrangement continued until Kellogg resigned in 1976. After initial objection by Essie to Annie's request to be appointed successor guardian, an agreement signed by Essie and Annie was formalized through the probate court, whereby Essie withdrew her objection to Annie's appointment as guardian in exchange for visitation privileges with her husband. ⁴

On March 12, 1976, Annie Boyd was appointed successor guardian of the person and estate of Charles, "who was found to be incompetent by reason of mental disability."

Charles (age fifty-seven at the time of trial) made no appearance at trial, nor was any expert testimony as to his current mental condition presented. When asked about Charles' present condition, his guardian, Annie, stated:

"He has improved from the time he came home but he still can't dress himself, he can't take baths. You'd have to take him to the bathroom. You sit him down and then some days he eats very well. Some days you have to feed him if you want him to eat.

"He can walk. If I take him to the shopping center or some place else, I take the wheelchair."

Further, she testified that Charles can talk, express feelings, watch television "read some things" and "write a little." Her son, Woodrow Boyd (an adult who shares his home with his mother and uncle), stated, "He [Charles] talks--sometimes he talks real good and sometimes he doesn't."

As a disabled veteran, Charles receives benefits from the Veterans' Administration--currently $1300 per month. Annie administers the funds on his behalf, and keeps his savings in a special account, which has a current balance of $40,000. ⁵ Initially, Essie received $200 per month from Charles' first guardian (Kellogg) as her "spouse's benefit"; but since Annie's appointment as guardian in 1976, these payments have ceased.

Essie Edwards is employed by the Ohio Department of Health, earning $17,700 a year. The title to the home where she resides in Columbus is in her name as "trustee," having been purchased with a downpayment of $10,000 made by her adult nephew and niece, who now live in New York City.

On direct examination, Essie Edwards testified first as to the history of her marriage with Charles prior to his accident. She stated that following Charles' filing for divorce in 1968, she and her husband were reconciled, and that they had sexual relations in July 1970, when he was home on leave from the base in Kansas, and again on the evening before the accident.

In January 1981, Essie visited Charles at Annie's home in Cleveland, at which time she said that Charles expressed a desire to go with her to her home in Columbus.

At the close of trial, defendant moved for a dismissal and also requested the court "not to order any division of property."

From the judgment awarding Charles a divorce as prayed for through his guardian, defendant-appellant Essie A. Edwards now takes this appeal, citing five assignments of error.

We begin with the first two related assignments:

"I. The court erred in imposing a divorce upon the husband through his guardian in the absence of the husband's testimony that he wanted a divorce.

"II. The court erred in imposing a divorce upon the husband based on the guardian's testimony in the absence of medical evidence that the husband was unable to testify."

Throughout these proceedings, appellant has consistently maintained that it was error for the court to proceed to grant the divorce upon the petition of Charles' guardian without ascertaining Charles' capacity to express his own wishes or intentions in this regard. The trial court, however, took the position that it had no discretion but to grant the divorce, provided that the statutory requisites were satisfied. Indeed, the court thwarted any attempt by appellant to introduce evidence that her husband did not in fact want the divorce his guardian was seeking.

Appellee argues that the trial court correctly determined that since this divorce was sought under Ohio's "no fault" divorce law, R.C. 3105.01(K) ⁶ (first enacted in 1974), the wishes of the incompetent spouse as plaintiff, even if these can be ascertained, are irrelevant as long as the guardian (on the incompetent's behalf) can prove that two or more years of physical separation between the parties without cohabitation has occurred. We disagree.

Under Ohio law, a "guardian" means " * * * any person, association, or corporation appointed by the probate court to have the care and management of the person, the estate, or both of an incompetent or minor * * *." R.C. 2111.01(A). The statute broadly defines "incompetent" as:

" * * * any person who by reason of advanced age, improvidence, or mental or physical disability or infirmity, chronic alcoholism, mental retardation, or mental illness, is incapable of taking care of himself or his property or fails to provide for his family or other persons for whom he is charged by law to provide, or any person confined to a penal institution within this state." R.C. 2111.01(D). ⁷

One of the fiduciary duties of a guardian of the estate as prescribed by statute is, "To bring suit for his ward when such suit is for the best interest of such ward." (R.C. 2111.14[E].)

Pursuant to Civ.R. 17(B), a guardian is entitled to bring suit on behalf of his incompetent ward. The Rule (adopted in 1...