McLeod v. Mudlaff (In re Estate of Laubenheimer)

• Citation: 350 Wis.2d 182,2013 WI 76,833 N.W.2d 735
• Decision Date: 16 July 2013
• Docket Number: 2011AP1177.,Nos. 2011AP1176,s. 2011AP1176
• Parties: In re the ESTATE OF Nancy Ellen LAUBENHEIMER: Joseph McLeod, Petitioner–Respondent, v. Patricia Mudlaff n/k/a Patricia Guske, Barbara Nigh and Millard Laubenheimer, Objectors–Appellants. In re the estate of Nancy Ellen Laubenheimer: Patricia Mudlaff n/k/a Patricia Guske, Barbara Nigh and Millard Laubenheimer, Appellants, v. Joseph McLeod, Respondent.
• Court: United States State Supreme Court of Wisconsin

350 Wis.2d 182
833 N.W.2d 735
2013 WI 76

In re the ESTATE OF Nancy Ellen LAUBENHEIMER:
Joseph McLeod, Petitioner–Respondent,
v.
Patricia Mudlaff n/k/a Patricia Guske, Barbara Nigh and Millard Laubenheimer, Objectors–Appellants.
In re the estate of Nancy Ellen Laubenheimer:
Patricia Mudlaff n/k/a Patricia Guske, Barbara Nigh and Millard Laubenheimer, Appellants,
v.
Joseph McLeod, Respondent.

Nos. 2011AP1176, 2011AP1177.

Supreme Court of Wisconsin.

Argued: Feb. 12, 2013.
Decided: July 16, 2013.

[833 N.W.2d 736]

For the objectors-appellants, there were briefs by Gregory S. Mager and O'Neil, Cannon, Hollman, DeJong & Laing S.C., Milwaukee, and oral argument by Gregory S. Mager.

For the petitioner-respondent, there was a brief by Alan L. Spiegel, Paul Bugenhagen Jr., and Mclario, Helm & Bertling S.C., Menomonee Falls, with oral argument by Alan L. Spiegel.

ON CERTIFICATION FROM THE COURT OF APPEALS
DAVID T. PROSSER, J.

[350 Wis.2d 185]¶ 1 These consolidated estate cases are before the court on certification from the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2009–10).¹

¶ 2 The cases arise from competing petitions for the appointment of a personal representative and the formal administration of the estate of Nancy Ellen Laubenheimer (Laubenheimer). Joseph McLeod (McLeod) filed a petition for formal administration of Laubenheimer's estate and his appointment as personal representative. He also asserted his right, as Laubenheimer's husband, to a share of her estate. Patricia Mudlaff (Patricia), Laubenheimer's stepdaughter, also filed a petition for formal administration and appointment as personal representative. Patricia asserted that Laubenheimer's marriage to McLeod was invalid because Laubenheimer lacked the mental capacity to consent to the marriage to McLeod. Thus, Patricia asked the circuit court to declare Laubenheimer's marriage void, making McLeod ineligible to receive a share of Laubenheimer's estate.

¶ 3 The principal issue in this case is whether a court has the authority to declare a marriage void after the death of one of the parties to the marriage.

¶ 4 The Washington County Circuit Court ² rejected Patricia's argument, concluding that annulment [350 Wis.2d 186]was the only method to void a marriage and that a Wisconsin statute prohibits annulment after the death of one of the parties to the marriage.

¶ 5 We reverse. In

[833 N.W.2d 737]

Ellis v. Estate of Toutant ( Estate of Toutant ), 2001 WI App 181, 247 Wis.2d 400, 633 N.W.2d 692, the court of appeals held that there is a fundamental distinction between annulment and a judicial declaration that a marriage is void. The court of appeals further held that in an estate action challenging a marriage, a court may use its declaratory judgment powers to declare that a marriage prohibited by law was void and incapable of validation by the parties to the marriage.

¶ 6 We conclude that the holdings and analysis in Estate of Toutant are correct. Annulment is certainly an appropriate remedy to void a marriage when the parties to the marriage are still alive, but it is not the exclusive remedy to challenge the validity of a marriage. The common law drew a distinction between an annulment and a declaration that a marriage was void, especially a declaration after the death of one of the parties. Our statutes and case law have preserved that distinction.

¶ 7 Wisconsin Stat. ch. 765 sets out the criteria for a valid marriage in this state. Failure to meet one of these criteria will often result in a void marriage. An action under the Uniform Declaratory Judgments Act (the UDJA) is the established mechanism for testing the validity of a marriage in an estate case because the UDJA explicitly provides standing for interested parties in an estate action.

¶ 8 The change in the annulment statute in 2005 Wis. Act 443 did not alter the holdings in the Estate of Toutant case. There is no evidence that the legislature sought to curtail a court's power to address fraud, mistake, and other exigencies in a disputed marriage in [350 Wis.2d 187]order to “declare rights, status, and other legal relations.” Wis. Stat. § 806.04(1). Limiting a court's power to address these issues would effectively shut off declaratory remedies for parties in an estate action.

¶ 9 We remand the case to the circuit court for further action consistent with this opinion.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

¶ 10 Nancy and Luke (Luke) Laubenheimer were married 30 years before Luke's death in 2001. Their marriage produced no children, but Luke had three children from a previous marriage. Two of those children, Patricia and Millard (Millard) Laubenheimer, are parties in this case. Laubenheimer never adopted Luke's children.

¶ 11 Laubenheimer executed a will in 1999 leaving the bulk of her estate to Luke, but if Luke died before she did, the bulk of Laubenheimer's estate was to be distributed to Luke's children. Laubenheimer did not alter this will in the decade after Luke's death.

¶ 12 Laubenheimer suffered a stroke in January 2007. From that time until her death in February 2009, Laubenheimer also suffered from hypertension, insulin-dependent diabetes, and renal failure. At some point, McLeod came to live with Laubenheimer. McLeod claims that he lived with her beginning in July 2003. His presence in her home clearly preceded March 2007.³

[833 N.W.2d 738]

[350 Wis.2d 188]¶ 13 On October 1, 2008, Community Memorial Hospital in Menomonee Falls admitted Laubenheimer with stroke-like symptoms, including “ right side weakness, difficulty speaking, and facial droop.” Two doctors at the hospital noted Laubenheimer's diminished mental capacity. On October 11, Dr. Lisa M. Rich and Dr. Colleen Poggenburg signed a “Statement of Incapacitation,” concluding that Laubenheimer was “unable to receive and evaluate information effectively or to communicate decisions” and that she lacked the capacity to make health care decisions. The Statement of Incapacitation activated Laubenheimer's health care power of attorney, which designated Laubenheimer's cousin, Diane Kulpa, to serve in that capacity. Laubenheimer's mental state purportedly never improved and the health care power of attorney remained in effect until she died.

¶ 14 On October 13, 2008, Laubenheimer was transferred from Community Memorial Hospital to Virginia Highlands Health and Rehabilitation Center (Virginia Highlands), a nursing home in Washington County. From the time of her admittance to Virginia Highlands until her death on February 5, 2009, Laubenheimer was treated by Dr. Dirk Steinert, the attending physician at the nursing home.

¶ 15 McLeod removed Laubenheimer from Virginia Highlands on October 27, 2008, to obtain a marriage license. He removed her again on November [350 Wis.2d 189]3 ⁴ FOR A MARRIAGE CEREMony before washington county couRt commissiOner Jeffrey A. Jaeger. McLeod did not inform Laubenheimer's family, friends, doctors, or social workers about the wedding. A representative of a medical insurance carrier for Laubenheimer was the first to communicate the marriage of Laubenheimer and McLeod to a member of the Virginia Highlands staff.

¶ 16 On January 13, 2009, Patricia filed petitions in Washington County Circuit Court seeking temporary and permanent guardianship of the person and the estate for Laubenheimer, as well as protective placement.⁵ Patricia's guardianship petition alleged that Laubenheimer “suffer[ed] from severe cognitive disability due to several strokes.” In addition, the guardianship petition claimed that McLeod “continues to interfer[e] with [Laubenheimer's] necessary health care in contravention of the direction of [Laubenheimer's] health care power of attorney.” One example of this interference, according to the petition, was McLeod [350 Wis.2d 190]discharging Laubenheimer from Virginia Highlands against medical advice. Patricia alleged that Laubenheimer needed a guardian to readmit her to the nursing home.

¶ 17 Patricia's guardianship petition also contained an examining physician's report

[833 N.W.2d 739]

from Dr. Steinert, opining that Laubenheimer was incompetent and in need of a guardian.⁶

¶ 18 On January 27, 2009, the circuit court appointed Laubenheimer's power of attorney for health care, Diane Kulpa, as temporary guardian of Laubenheimer's person, and Barbara Nigh (Nigh), Laubenheimer's sister, as temporary guardian of Laubenheimer's estate, concluding that there was a “reasonable likelihood” Laubenheimer was incompetent.⁷

¶ 19 Laubenheimer died at Virginia Highlands on February 5, 2009, while the permanent guardianship proceedings were pending. In a letter dated February 7, 2009, Dr. Steinert concluded that at no time after Laubenheimer's admission to Virginia Highlands (including the date of the November marriage ceremony) did she have sufficient capacity to consent to marriage.

¶ 20 On June 9, 2009, McLeod filed a petition for formal administration of Laubenheimer's estate, requesting that the court appoint him as personal representative [350 Wis.2d 191]and asserting his right to a share of Laubenheimer's estate. McLeod attached a copy of Laubenheimer's October 13, 1999, will, but claimed that the will was not “properly executed” or “valid,” and that after a “diligent inquiry,” he was unable to find the original will or any subsequent wills executed by Laubenheimer. McLeod asserted that because the 1999 will was executed prior to his marriage to Laubenheimer, he had a right to a share of his wife's estate under Wis. Stat. § 853.12. Section 853.12(1) provides that “if the testator married the surviving spouse ... after the testator executed his or her will, the surviving spouse ... is entitled to a share of the probate estate.” The surviving spouse's share is equal to what his or her share would be if the testator died intestate, minus devises made to the testator's children and their issue. Wis. Stat. § 853.12(2). McLeod argued that inasmuch as Laubenheimer did not have any biological children and...