Houghton v. Keller

• Decision Date: 13 June 2003
• Docket Number: Docket No. 232524.
• Citation: 256 Mich. App. 336,662 N.W.2d 854
• Parties: Jon HOUGHTON, Guardian/Conservator of Joann Houghton Johnson, a/k/a Joann Johnson Keller, Plaintiff-Appellee, v. Ronald Paul KELLER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

662 N.W.2d 854

256 Mich. App. 336

Jon HOUGHTON, Guardian/Conservator of Joann Houghton Johnson, a/k/a Joann Johnson Keller, Plaintiff-Appellee, v. Ronald Paul KELLER, Defendant-Appellant.

Docket No. 232524.

Court of Appeals of Michigan.

Submitted April 15, 2003, at Lansing.

Decided April 22, 2003, at 9:00 a.m.

Released for Publication June 13, 2003.

Dykema Gossett PLLC (by Mark H. Sutton), Bloomfield Hills, (DeniseAlexander, of counsel), Bloomfield Hills, for the plaintiff.

Law Offices of James Leonard Elsman (by James Leonard Elsman and Robert Katz), Birmingham, for the defendant.

Before: WHITBECK, C.J., and FITZGERALD and ZAHRA, JJ.

PER CURIAM.

Defendant appeals as of right a judgment of divorce. We affirm.

Defendant first argues that the trial court erred in ruling that a guardian can initiate a divorce action on behalf of an incompetent spouse. We disagree.

In Smith v. Smith 125 Mich.App. 164, 335 N.W.2d 657 (1983), this Court ruled that a mentally incompetent spouse can bring a divorce action by her guardian. Id. at 166, 335 N.W.2d 657.¹ This Court relied on General Court Rule (GCR) 1963, 722.2, which provided, "`Actions for divorce and separate maintenance by or against incompetent persons shall be brought as provided in sub-rule 201.5.'" GCR 1963, 201.5(1) provided, "`Whenever an infant or incompetent person has a guardian of his estate, actions may be brought and shall be defended by such guardian in behalf of the infant or incompetent person.'" Smith supra at 166, 335 N.W.2d 657.

The current court rules on domestic relations actions are contained in Michigan Court Rules subchapter 3.200. MCR 3.201 provides that subchapter 3.200 applies to actions for divorce. MCR 3.202(A) provides, "Except as provided in subrule (B) [relating to emancipated minors], minors and incompetent persons may sue and be sued as provided in MCR 2.201." MCR 2.201(E), relating to minors and incompetent persons, provides in pertinent part:

(1) Representation.

(a) If a minor or incompetent person has a conservator, actions may be brought and must be defended by the conservator on behalf of the minor or incompetent person.

(b) If a minor or incompetent person does not have a conservator to represent the person as plaintiff, the court shall appoint a competent and responsible person to appear as next friend on his or her behalf, and the next friend is responsible for the costs of the action.

(c) If the minor or incompetent person does not have a conservator to represent the person as defendant, the action may not proceed until the court appoints a guardian ad litem ....

We agree with the reasoning in Smith and conclude that, on the basis of MCR 3.202(A) and MCR 2.201(E), a guardian can bring an action for divorce on behalf of an incompetent spouse.

Defendant also contends that M.C.L. § 552.6 reserves the power to dissolve a marriage exclusively to the parties to that marriage and that MCR 3.202(A) "changes" the statutory requirements of M.C.L. § 552.6. MCL 552.6 provides in pertinent part:

(1) A complaint for divorce may be filed in the circuit court upon the allegation that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. In the complaint the plaintiff shall make no other explanation of the grounds for divorce than by the use of the statutory language.

Defendant does not clearly explain the "statutory requirements" that he suggests were changed by MCR 3.202. The statute requires that the plaintiff allege that there has been a breakdown of the marriage relationship to the extent that the objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. Defendant appears to be suggesting that if the Legislature intended to provide for actions by a guardian, the Legislature would have expressly provided for this in M.C.L. § 552.6. However, the converse argument can be made that, had the Legislature intended to prohibit actions by guardians on behalf of a spouse, it would have expressly said so in the language of M.C.L. § 552.6. Nothing in the language of M.C.L. § 552.6 expressly prohibits guardians from filing a complaint for divorce on behalf of a party to the marriage. Defendant has not shown how the language in MCR 3.202(A), providing in relevant part that "incompetent persons may sue and be sued as provided in MCR 2.201," changes the statutory requirements for divorce.

Defendant further argues that MCR 3.202(A) is unconstitutional because it is in conflict with the statutory requirements of M.C.L. § 552.6. However, as noted above, the court rule does not change the statutory provisions pertaining to divorce...