Nelson v. Nelson

• Decision Date: 03 June 1994
• Docket Number: No. 14873,14873
• Citation: 1994 NMCA 74,118 N.M. 17,878 P.2d 335
• Parties: Irva T. NELSON, Petitioner-Appellant, v. Claude L. NELSON, Respondent-Appellee.
• Court: Court of Appeals of New Mexico

Page 335

878 P.2d 335

118 N.M. 17

Irva T. NELSON, Petitioner-Appellant, v. Claude L. NELSON, Respondent-Appellee.

No. 14873.

Court of Appeals of New Mexico.

June 3, 1994.

[118 N.M. 18] Eric D. Dixon, Portales, for petitioner-appellant.

Duane S. Hamar, Hamar Law Firm, P.C., Portales, for respondent-appellee.

OPINION

PICKARD, Judge.

This appeal concerns a divorce action brought by a mentally incompetent woman, Mrs. Irva T. Nelson (Wife), through her son and guardian/conservator, Mr. Bobbie K. Sanders (Guardian), against her husband, Mr. Claude L. Nelson (Husband). The divorce action was initiated on behalf of Wife by Guardian. The trial court dismissed the petition because it was not verified by Wife. The issue presented on appeal is whether a legally incompetent spouse may initiate divorce proceedings in New Mexico through a legal guardian. For the reasons outlined below, we reverse the trial court's dismissal of the divorce petition and remand with instructions that the trial court accept the petition of Wife for divorce, as initiated and verified by Guardian, and conduct further proceedings to determine Wife's desires and best interests, as well as the statutory grounds for divorce if necessary, in accordance with this opinion.

I. BACKGROUND

Wife and Husband were married in 1962. Guardian is Wife's son from a previous marriage. Wife suffers from Alzheimer's Disease, was declared mentally incompetent in January 1992, and was placed under the guardianship of her son, who was also appointed conservator of her property. The appointment of the son as guardian was made over the objection and statutory priority of Husband. See NMSA 1978, Sec. 45-5-311(B)(1) & (2) (Repl. Pamp.1989). Guardian lives in Dayton, Ohio. After being appointed, Guardian had Wife moved to a nursing home in Dayton, where she presently resides.

On behalf of Wife, Guardian filed for divorce from Husband on January 20, 1993. The original petition for divorce alleged irreconcilable differences and was verified by Guardian, since Wife, as a legally incompetent person, could not verify the legal document in her own right. Husband disputed the claim that the couple was irreconcilable and testified that Guardian was pursuing the divorce action to "hurt" Husband and to prevent Husband from inheriting from Wife. Husband affirmatively alleged that the divorce petition was inadequate because it was not verified by Wife. On June 7, 1993, the trial court granted Husband's motion to dismiss the action with prejudice for this inadequacy.

After dismissing the petition, the trial court permitted Guardian to make a factual record. At the evidentiary hearing, Guardian moved to amend the divorce complaint to allege cruel and inhumane treatment, in addition to irreconcilable differences. Guardian maintained that a divorce was in the best interests of Wife. Guardian alleged that Husband was abusive to Wife during the marriage, and that Wife, prior to the onset of Alzheimer's Disease, expressed to Guardian and other family members that her marriage to Husband was "a mistake" but that she did not know what to do about it.

Mrs. Lu Knox testified that she once heard a verbal and physical altercation between Wife and Husband while they were guests in Mrs. Knox's home. Mrs. Knox testified that Wife admitted to being physically abused by Husband. Guardian indicated there was evidence that Husband physically neglected Wife. Guardian testified that he received a call from Mrs. Knox, who told him that Wife appeared to be deteriorating in health and did not seem to be adequately supervised by Husband. Guardian further testified that he travelled to New Mexico to check on his mother's condition and found her weighing approximately sixty-nine pounds, unclothed, sleeping in an unmade bed stained with urine and fecal matter, and living in a cluttered, unkept house.

Guardian also introduced the testimony of Mr. Harold Knox, who stated that Husband left Wife alone for long periods of time on a daily basis and that he knew of instances in which Husband had sold items belonging to the couple. Guardian testified that he has not received any financial assistance from Husband to contribute to Wife's care. Guardian stated that Wife would not have wanted the marital assets to be used entirely by Husband but would want to contribute to her own care from her share of the estate. Guardian indicated that attempts to require Husband to contribute to Wife's care have failed and that Husband has harassed and threatened him.

Guardian contends that granting a divorce will prevent further harassment of Guardian and Wife by Husband, allow Wife to be enrolled in federal assistance programs to cover the cost of her future care, and guarantee that Husband will not use up the marital assets without regard to or provision for Wife's needs. Husband denies all allegations of abuse, neglect, or incompatibility, and maintains that Wife was essentially kidnapped from their home in Portales, New Mexico, and taken to Dayton, Ohio, where he has been prevented from seeing her.

II. ANALYSIS

The issue of whether a divorce action may be initiated and maintained by a guardian is one of first impression in New Mexico. We look to other states' resolution of similar cases for insight and guidance. A number of jurisdictions in the United States have dealt with the issue of whether an incompetent spouse may be allowed to initiate or maintain an action for divorce through a guardian, guardian ad litem, conservator, or next friend against the other spouse. Our research indicates that other courts have taken different approaches.

A. The Majority Rule

Most states that have addressed the issue hold that, absent specific authority granted by statute, an incompetent or insane spouse may not bring or continue an action for divorce, nor may such an action be brought or maintained by a guardian on behalf of a ward. See generally J.A. Connelly, Annotation, Power of Incompetent Spouse's Guardian, Committee, or Next Friend to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make a Compromise or Settlement in Such Suit, 6 A.L.R.3d 681 (1966 & Supp.1993). Under this rule, a mentally incompetent spouse is not considered legally capable of making such a decision, and the decision cannot be made by a third person, even a legally appointed guardian. The only person with standing to sue for dissolution of marriage in states taking this view is a legally competent party to the marriage.

One rationale for the majority rule is that marriage is such a personal commitment that only one of the spouses can make a determination to end the marriage. Id. at 683; see also Murray v. Murray, --- S.C. ----, 426 S.E.2d 781, 783-84 (S.C.1993) (citing cases). Jurisdictions taking the majority position typically cite the personal nature of the marriage contract as supporting their position. See, e.g., Scott v. Scott, 45 So.2d 878, 879 (Fla.1950). Courts have expressed the concern that the wishes of the disabled spouse not be overridden by the values and judgments of a third party to this intimate relationship. Because there are no offenses which, in and of themselves, effect an end to the marriage, aggrieved spouses may elect to remain in marriages that seem to be against their best interests for personal, religious, moral, or economic reasons. See Connelly, supra, at 683. An incompetent spouse may be unable to express these reasons. See, e.g., In re Jennings, 187 N.J.Super. 55, 453 A.2d 572, 574 (Ch.Div.1981). Majority jurisdictions choose an absolute bar as the logical extension of the rule that insane persons cannot give consent. See, e.g., Higginbotham v. Higginbotham, 146 S.W.2d 856, 857 (Mo.Ct.App.1940), cert. quashed, 348 Mo. 1073, 156 S.W.2d 650 (1941) (en banc). As a practical matter, majority jurisdictions choose an absolute bar as the lesser of two evils, protecting the possibility that the incompetent spouse might elect to remain married if competent, even if it effectively prevents the incompetent spouse from ending the marriage while under the adjudication of incompetency.

B. The Minority Rule

Jurisdictions allowing divorce suits brought or maintained by a guardian are in the minority. Such states may have statutes which specifically grant incompetents the right to sue for divorce through their guardians. See Cohn v. Carlisle, 310 Mass. 126, 37 N.E.2d 260, 262 (1941). However, most minority-rule courts construe existing statutes authorizing the guardian to pursue and defend civil claims in the interests of their ward to include authority to bring an action for divorce. See Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401, 402 (1941); In re Marriage of Ruvalcaba, 174 Ariz. 436, 440, 850 P.2d 674, 678 (App.1993); Kronberg v. Kronberg, 263 N.J.Super. 632, 623 A.2d 806, 809-10 (Ch.Div.1993). A procedural variation of the minority view adopted by some jurisdictions is to allow the guardian to petition the appointing court for an order granting specific authority to seek a dissolution of the marriage on behalf of the incompetent spouse. See In re Marriage of Gannon, 104 Wash.2d 121, 702 P.2d 465, 467 (1985) (en banc). Some states have gone so far as to disapprove or overrule earlier contrary decisions within the jurisdiction. See Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837, 839 (Tex.Ct.App.1988) (declining to follow Hart v. Hart, 705 S.W.2d 332 (Tex.Ct.App.1986), error denied per curiam, 762 S.W.2d 575 (Tex.1988)); Gannon, 702 P.2d at 467 (overruling Jones v. Minc, 77 Wash.2d 381, 462 P.2d 927 (1969)).

The cases contain numerous factual differences which may be dispositive. For instance, states may bar a divorce action prosecuted entirely by the guardian but allow the action to go forward when the ward is capable of understanding the nature of the action and of expressing a desire to end the marriage and does so. See, e.g., In re Marriage of Higgason, 10 Cal.3d 476, 110 Cal.Rptr. 897, 902, 516 P.2d 289,...