Zaragoza v. Zaragoza, 1863
| Decision Date | 05 May 1992 |
| Docket Number | No. 1863,1863 |
| Citation | 420 S.E.2d 516,309 S.C. 149 |
| Court | South Carolina Court of Appeals |
| Parties | Julian P. ZARAGOZA, Respondent, v. Neatta P. ZARAGOZA, Appellant. . Heard |
Harvey L. Golden, Columbia, for appellant.
Neatta P. Zaragoza, pro se.
H. Jackson Gregory, of Gregory & Gregory, Columbia, for respondent.
In this domestic action, respondent-husband, Julian P. Zaragoza filed an action seeking a divorce on the ground of one years' continuous separation. The appellant-wife, Neatta P. Zaragoza, answered and counter claimed. The trial judge granted the divorce. The wife appeals the trial court's failure to grant her motion to dismiss based on the husband's alleged mental incompetence, failure to appoint a guardian ad litem for the husband, and failure to allow the admission of certain testimony of one of her witnesses as an expert witness. We affirm.
The record reveals as follows. At trial, the wife appeared pro se and orally moved to dismiss the action on the ground that her husband was incompetent and no guardian ad litem had been appointed. The court ruled the motion was not a filed motion before the court and he therefore could not rule on it. The wife did not respond to this ruling. The parties proceeded with the hearing during which the husband testified he was a boxer in the military service and, after suffering a severe blow to the head, was retired on military disability because he suffered from a brain damage syndrome called dementia. He stated that dementia affects his memory and speech and gets progressively worse with age. At the time of the hearing, the husband was 32 years old. On cross-examination, he testified his doctors determined he needed a fiduciary to handle his financial affairs. He stated his driver's license is suspended. On redirect he testified that although he receives help from his mother, he lives by himself, is able to travel on his own, and makes his own plans after talking with his mother.
During cross-examination and on direct examination of the husband upon presentation of her case, the wife again moved to dismiss the action on the basis of the husband's incompetence. The trial judge again denied the motion finding the husband answered some of her questions fairly well and noted some of his problems with answering may have been attributed to the questions themselves.
In presenting her case, the wife called the husband's social worker and counselor from the V.A. Hospital, Rebecca Barnett. During direct examination, the wife asked Ms. Barnett whether some characteristics of the husband were symptomatic of dementia. The husband's attorney objected on the ground that the witness had not been qualified as an expert. The court sustained the objection finding his dementia was not an issue before the court. The wife did not make any other proffer of evidence.
The wife contends the trial judge erred in denying her motion to dismiss for lack of subject matter jurisdiction based on her husband's alleged mental incompetence. She asserts the court did not have jurisdiction to adjudicate the matter of divorce without the appointment of a guardian ad litem. She summarily argues the issue of the husband's mental capacity was raised in her responsive pleadings which made it an issue before the court. We note the wife did not argue this position before the trial judge. It is questionable whether the issue was properly raised in her pleadings. While her answer and counterclaim sought a psychological evaluation of the husband, the pleadings did not specifically raise a jurisdictional issue based on the husband's mental capacity.
We recognize, as pertains to the issue of subject matter jurisdiction, that the issue may be raised for the first time on appeal. Knight Publishing Co. v. University of South Carolina, 295 S.C. 31, 367 S.E.2d 20 (1988). See also Rule 12(h)(3), SCRCP (); and Rule 2(a), SCRFC (). However, the wife's argument on appeal is bare and conclusory at best. She appears to argue that she is entitled to dismissal based solely on the fact that the husband is on disability retirement. She equates disability with mental incompetency such that the husband's disability automatically renders him mentally incompetent. She further asserts S.C.Code Ann. §§ 15-5-30 and 15-5-310 required the trial judge to appoint a guardian ad litem for the husband.
We first note §§ 15-5-30 and 15-5-310 were repealed in 1985 and Rule 17, SCRCP now governs such matters. Rule 17(b...
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Murray by Murray v. Murray, 23791
...home." However, physical disability does not necessarily indicate that a person is mentally incompetent. See Zaragoza v. Zaragoza, --- S.C. ----, 420 S.E.2d 516 (Ct.App.1992). In fact, respondent's brief states that "... this divorce action was instituted at the request of Fletcher Lee Murr......
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Divine v. Robbins
...refused to address an issue on appeal when no proffer is made after the family court excludes evidence. See Zaragoza v. Zaragoza, 309 S.C. 149, 153, 420 S.E.2d 516, 518 (Ct.App.1992) (an alleged erroneous exclusion of evidence is not a basis for establishing prejudice on appeal in the absen......
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Rogers v. Rogers
...354, 356 (1955) (quoting Edge v. Dunean Mills , 202 S.C. 189, 195, 24 S.E.2d 268, 271 (1943) ). In Zaragoza v. Zaragoza , 309 S.C. 149, 151-52, 420 S.E.2d 516, 517-18 (Ct. App. 1992), the family court considered the wife's argument that her husband was incompetent. The husband had suffered ......
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State v. Hawkins, 1899
...its potential relevance and thereby determine whether the trial court abused its discretion by the exclusion. Zaragoza v. Zaragoza, --- S.C. ----, 420 S.E.2d 516 (Ct.App.1992). VI. The appellant asserts the trial court erred in failing to grant a mistrial due to the introduction of testimon......