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Wife with Dementia and Alzheimer Can Get Divorced

Posted By Azemika   |   Comments (0)
Divorce,

 

 

A California Appellate Court ruled that Trial Court erred by dismissing a divorce case sua sponte on the basis that the dismissal would be in the best interests of Wife who was judged incompetent due to dementia and Alzheimer. In the case of In re Marriage of Straczynski, Wife filed for divorce in August of 2005. Her divorce petition stated that she and Husband were married in 1950. Husband’s response stated that they were married in 1986 and that Wife lacked full awareness of what she was doing because she suffered from dementia and Alzheimer’s disease. Sometime later, Trial Court, after interviewing Wife, determined that she had sufficient capacity to decide that she wanted a divorce. In November of 2005, Husband and Wife stipulated that Wife would enter assisted living program. In June of 2006, Trial Court, per stipulation of the parties, ordered the sale of the parties family home, closing of a business, and placing of restrictions on movement of funds.

In May 2007, acting on Husband’s motions, Trial Court found that parties’ 1986 prenuptial agreement was enforceable, divided the proceeds of the family home sale equally, ordered Husband to make an equalizing payment of $265,000 to Wife, and required Husband to pay (as spousal support) no less than $500 per day to cover costs of Wife’s care and medications. Trail Court followed those orders up in January 2008, with orders that Husband pay $18,000 per month for Wife’s care, plus arrearages of $57,813.

Meanwhile, in a concurrent conservatorship action, Probate Court appointed conservator for Wife. In June 2007, finding that Wife was not competent to be in an attorney-client relationship, Probate Court appointed a guardian ad litem for her. When Probate Court appointed successor conservator in April 2008, it specifically stated that successor conservator had standing to litigate Family Law Trial Court matters on Wife’s behalf. In December 2008, conservator filed an application for priority trial date in the divorce case, along with a request that Trial Court order parties to comply with state and local statutes regarding disclosure declarations. In opposition, Husband asserted that Wife was making noticeable progress since being moved to another residential care facility, was regaining some competency, and now did not want divorce. Husband claimed that Wife’s attorney was moving the case to completion for "no apparent reason."

On March 2, 2009, after discharging his attorney, Husband, now in pro per, filed a motion to dismiss the divorce case on ground of reconciliation. In supporting declaration, Husband claimed that Wife’s conservators and attorneys had prevented him from visiting her, but he was finally able to do so in December of 2008. Husband said he had visited with Wife over a four-day period, during which Wife recognized him as her husband, was very affectionate with him, and told him that she loved him. Husband clarified that he was not claiming that Wife was competent, only that she knew she was married to him and was happy with him. Husband also submitted declaration from family friend who observed visits between Husband and Wife and agreed that Wife knew Husband was her husband and was loving and affectionate with Husband. Husband also included a declaration from the owner and administrator of Wife’s care facility, who seconded Husband’s claims of improvement in Wife’s condition, affection between Husband and Wife, and Wife’s awareness that Husband was her husband.

In a response filed on Wife’s behalf, her conservator argued that Husband’s request for dismissal was not supported by statutes or evidence, and that the dismissal would mean that support orders would cease. In report submitted in connection with Husband’s motion, conservator urged Trial Court to place conditions on any dismissal, including issuing of permanent support and arrearages orders, requiring Husband to make full disclosure of his assets, ordering Husband to return his personal financial accounts and property assets to California from Nevada, and barring Husband, his nominee, or his daughter from seeking appointment as Wife’s conservator. Conservator asserted that these conditions were necessary to protect fees and costs orders in the conservatorship to the tune of $252,835.

At the hearing on April 24, 2009, Trial Court began by asking how the divorce would "advance the ball" for Wife. After receiving answers from parties and/or their representatives, Trial Court said it believed that the divorce was not in Wife’s best interests because (a) Wife would be better off financially if the divorce was dismissed (because of the prenuptial agreement), (b) Wife’s main concerns (as an elderly lady with dementia) were Husband and her conservator and not courtroom matters, and (c) Wife’s needs could be adequately addressed in conservatorship action. Trial Court stated that Husband’s motion lacked merit because evidence did not show that Husband and Wife had reconciled. It also found no evidence that irreconcilable differences had caused irremediable breakdown of their marriage. Besides, Trial Court believed that case law precluded granting a divorce to a person under conservatorship. Trial Court then, sua sponte, dismissed the divorce case and vacated the pendente lite support orders. Conservator promptly filed a motion to vacate and a notice of appeal.

After Trial Court took motion to vacate off calendar, Conservator amended the appeal to include denial of that motion. Now, California Court of Appeals has reversed and remanded the case back to Trial Court with directions. The Appellate Court has found that Trial Court erred by (1) failing to provide notice that it intended to dismiss the divorce case sua sponte or an opportunity to respond; (2) failing to issue an Order to Show Cause and set a hearing regarding dismissal; (3) dismissing the divorce case on basis of Wife’s best interests and prejudging evidence before hearing it; and (4) failing to follow procedure in the case of Higgason (1973) 10 Cal.3d 476 [Trial Court must make finding that conservatee has necessary capacity to make considered judgment to dissolve the marriage]. The Appellate Court reverses and remands with directions to Trial Court to issue an Order to Show Cause regarding Wife’s current capacity to exercise judgment and express wish to dissolve her marriage due to irreconcilable differences. The Appellate Court tells Trial Court to proceed with the divorce if Wife has necessary capacity, but dismiss if Wife lacks that capacity.

 

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