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Apr 2014
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April 01, 2014

Seeking Divorce During A Spouse's Disability


INTRODUCTION
 
        Michigan’s divorce statute, MCL 552.6, is silent as to whether a guardian or a conservator may file a divorce action on behalf of the ward.  Historically, the relevant provisions of the General Court Rules of 1963 provided that a guardian could file a divorce action on behalf of the ward, and this principle was recognized by a 1983 decision of the Michigan Court of Appeals.  In 1985, the General Court Rules were replaced by the Michigan Court Rules, the relevant provisions of which provide that a conservator (or, in the absence of a conservator, a next friend) may file a divorce action on behalf of the ward.  Nonetheless, cases decided under the Michigan Court Rules have continued to erroneously hold that a guardian may file a divorce action on behalf of the ward, despite citing and quoting Michigan Court Rule provisions that grant such authority only to a conservator or next friend.  In 2013, the Court of Appeals finally recognized that a conservator has the authority to file a divorce action on behalf of the ward, but even then the Court erroneously continued to posit that a guardian has identical authority.
 
Smith v Smith, 125 Mich App 164; 335 NW2d 657 (1983)

        Smith v Smith is the earliest Michigan case explicitly addressing the right of a guardian to file for divorce on behalf of the ward.  There, Edith Lazorshak commenced guardianship and conservatorship proceedings with respect to her mother, Minna Smith, in probate court.  In the course of those proceedings, Edith was appointed as temporary guardian and conservator for Minna.
 
        In her capacity as temporary guardian (but apparently not her capacity as temporary conservator), Edith filed a divorce action on behalf of Minna against her husband, Frank Smith, in circuit court: “Minna Smith, by and through her temporary guardian, Edith Lazorshak, brought this action for divorce. . . ”1  Subsequently, the probate court adjudged Minna to be mentally incompetent and appointed Edith as guardian and conservator for Minna.  Thereafter, in the divorce action in circuit court, Frank moved for accelerated judgment on the grounds that Minna “lacked legal capacity to sue.”2  The circuit court granted Frank’s motion, and Edith as guardian for Minna appealed.
 
        The Michigan Court of Appeals noted that the case presented an issue of first impression: “whether a mentally incompetent spouse can bring a divorce action by her guardian.”3,4  In reaching its decision, the Court of Appeals cited two provisions of the General Court Rules of 1963.  GCR 722.2 provided: “Actions for divorce and separate maintenance by or against incompetent persons shall be brought as provided in sub-rule 201.5.”  GCR 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.” 
 
        Based on these two court rules, the appellate court concluded that “a mentally incompetent spouse can sue for divorce by and through her guardian,”5 while recognizing that this outcome was contrary to the majority rule in other states that “do not permit a guardian to sue for divorce on behalf of a ward.”6  Hence, the circuit court’s ruling was reversed.  The dissent argued that “[t]he Michigan Legislature has not provided for an action for divorce on behalf of a mentally incompetent individual by a guardian and such a right should not be read into the statute.”7 
 
Weiss v Weiss, No 230830, 2002 WL 1011754 (Mich App May 17, 2002)
 
        The Michigan Court of Appeals considered this issue again in Weiss v Weiss.  There, George Weiss and John Weiss, Jr. had been appointed as co-guardians for their father, John Weiss, Sr., who suffered from dementia.  In their respective capacities as co-guardians, George and John Jr. filed a divorce action in circuit court on behalf of John Sr. against his wife, Joan Weiss; George also acted in his capacity as next friend for John Sr.  The circuit court granted the divorce, and Joan appealed. 
 
        Joan argued “that the trial court erred in ruling that plaintiff could institute this divorce action by and through his guardians.”8  The Court of Appeals disagreed, based on the holding in Smith, supra.  After the date of the Smith decision, the General Court Rules of 1963 (relied on by the Court of Appeals in Smith) had been superseded by the Michigan Court Rules of 1985.  Nonetheless, the Court of Appeals found that certain provisions of the Michigan Court Rules supported the conclusion reached in Smith based on the General Court Rules.
 
        Specifically, the Court of Appeals cited the following Michigan Court Rules.  MCR 3.201 provides that subchapter 3.200 applies to actions for divorce.  MCR 3.202(A) allows incompetent persons to sue and be sued as provided in MCR 2.201.  MCR 2.201(E)(1)(a) provides: “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.”  MCR 2.201(E)(1)(b) provides: “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.”  And MCR 2.201(E)(1)(c) provides: “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. . .”
 
        Based on these Court Rules, the Court held that “a mentally incompetent spouse can sue for divorce by his guardian or next friend.”9  The Court also held that “the trial court must be able to determine, even without the incompetent person’s testimony, that the marital relationship has broken down.”10 
 
        The Court’s opinion is notable in that it ruled that a guardian (as well as a next friend) possessed authority to sue for divorce on behalf of a mentally incompetent ward, without identifying any basis for such authority in the Michigan Court Rules cited in the decision.  Perhaps the appellate court did not recognize the distinction between a guardian ad litem (mentioned in MCR 2.201(E)(1)(c), cited in the decision) and a guardian (not mentioned in any of the cited Court Rules).  That mistake would explain why MCR 2.201(E)(1)(c) was cited in the decision in the first place, since it otherwise had no apparent relevance to the case.  But in Weiss, the appellate court actually made two mistakes, because MCR 2.201(E)(1)(c) only applies to the representative defense of an action (“If the minor or incompetent person does not have a conservator to represent the person as defendant. . . ”), and Weiss involved the representative prosecution of a divorce action.
 
Houghton v Keller, 256 Mich App 336; 662 NW2d 854 (2003)
 
        Houghton v Keller also involved a representative divorce filing.  There, Jon Houghton as guardian of Joann (Houghton) Keller filed a divorce action on behalf of Joann against her husband, Ronald Keller, in the circuit court.  Jon was presumably Joann’s son and Ronald’s stepson.  It should be noted that the case caption indicates that Jon was serving as both guardian and conservator for Joann, while the body of the decision only identifies Jon as Joann’s guardian.  The circuit court entered a judgment of divorce and Ronald appealed.
 
        On appeal, Ronald argued that the trial court had erred in ruling that a guardian could initiate a divorce action on behalf of an incompetent spouse.  The Court of Appeals noted that Smith, supra, stood for the proposition that “a mentally incompetent spouse can bring a divorce action by her guardian.”  The Court of Appeals also noted that certain provisions of the current version of the Michigan Court Rules (as cited in Weiss, supra) authorize an incompetent person to sue for divorce by either his or her conservator or next friend.  Based on this analysis, the Court of Appeals rejected Ronald’s argument: “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.”11
 
        Given that the cited Michigan Court Rule required the divorce action to be filed by the conservator or next friend, and given that the case caption indicated that Jon was Joann’s conservator, the appellate court’s ruling that “a guardian can bring an action for divorce” and the omission of any reference to Jon’s role as conservator are inexplicable. 
 
        Ronald also argued that the divorce statute, MCL 552.6, did not authorize a guardian to file for divorce on behalf of an incompetent person.12  The Court of Appeals held that the language of MCL 552.6 did not preclude a guardian from commencing a divorce action for an incompetent person. 
 

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.13 

 
In re Burnett Estate, 300 Mich App 489; 834 NW2d 93 (2013)
 
        In In re Burnett Estate, Joseph Buxbaum and Beryl Niles served as co-guardians for their mother, Devon Burnett, who suffered from dementia; Joseph also served as conservator for Devon.  The co-guardians filed a divorce action in circuit court on behalf of Devon against her husband, Bobbie Burnett.  Although Bobbie had undergone a successful sex-change operation subsequent to her marriage to Devon, she opposed the complaint for divorce and moved for summary disposition, “arguing that guardians and conservators lack authority to file a complaint for divorce on behalf of an incapacitated ward. . . . The trial court denied defendant’s motion from the bench, concluding that under Michigan caselaw guardians and conservators have authority to file a complaint for divorce.”14  The trial court entered a judgment of divorce, and Bobbie appealed.
 
        Initially, the Court of Appeals noted that it had “addressed this precise issue” in Houghton, supra, and had concluded that “a guardian can bring an action for divorce on behalf of an incompetent spouse.”15  However, Bobbie argued that Houghton had been erroneously decided because: (1) Houghton’s holding rested on the holding in Smith, supra; (2) the holding in Smith rested on the General Court Rules; and (3) the General Court Rules had been superseded by the Michigan Court Rules.
 
        The Court of Appeals rejected this argument, finding that the decision in Houghton rested not only on the Smith decision, but also on several provisions of the Michigan Court Rules.  After citing the same provisions of the Michigan Court Rules that had been cited in Houghton (and Weiss), the Court concluded: “Thus, contrary to defendant’s argument, the current court rules specifically allow a guardian or conservator to bring an action for divorce on behalf of a mentally incompetent spouse.”16 
 
        The appellant also raised a policy argument: “that allowing guardians to file for divorce on behalf of an incompetent spouse who never filed for divorce while competent could lead to divorces brought by family members (acting as guardians or conservators) merely for financial gain[.]”17  However, the Court of Appeals observed that such a policy argument, albeit “interesting,” would be “properly made to the Legislature or the Supreme Court (in its rulemaking function), not this Court.”18 
 
        Like the appellant in Houghton, the appellant in Burnett further argued that the divorce statute, MCL 552.6, did not authorize a guardian to file for divorce on behalf of an incompetent person.  The Court of Appeals again rejected this argument: “Nothing within the language of MCL 552.11 expressly prohibits a guardian or conservator from filing a complaint for divorce on behalf of an incompetent spouse.”19  The holding in Burnett is notable because it expressly extended the power to file a representative divorce action to a conservator, although it carried forward the erroneous idea that a guardian possesses identical authority.
 
CONCLUSION
 
        Michigan courts need to stop saying that the Michigan Court Rules authorize a guardian to file for divorce on behalf of the ward, because it is inaccurate.  Instead, the Michigan Court Rules grant such authority only to an incapacitated person’s conservator or next friend.
 
        The potential for abuse of such authority appears high.  Where a non-spouse heir is serving as conservator or next friend, the non-spouse heir could use the representative divorce power to eliminate the disabled ward’s spouse as an heir to financially benefit the non-spouse heir.  Alternately, where a child of a disabled ward is serving as conservator or next friend, the child could use the representative divorce power to get rid of a disliked or unwelcome step-parent.  The disabled ward will likely be unable to provide meaningful testimony as to whether he or she desires a divorce.
 
        Abuse of this power would be prohibited by basic principles of fiduciary law – i.e., the fiduciary duty of absolute loyalty to the beneficiary’s interests, and the fiduciary duty to refrain from self-dealing.  A fiduciary’s abuse of this power may also have criminal implications, as it would seem to fall within the scope of Michigan’s elder abuse statute, MCL 750.174a(1): “A person shall not through fraud, deceit, misrepresentation, coercion, or unjust enrichment obtain or use or attempt to obtain or use a vulnerable adult's money or property to directly or indirectly benefit that person knowing or having reason to know the vulnerable adult is a vulnerable adult.” 
 
        A circuit court overseeing the divorce action would have the opportunity to scrutinize the propriety of the filing from a fiduciary duty perspective and should do so, especially where the fiduciary stands to gain financially as a consequence of the sought divorce.  A probate court may also have the opportunity to scrutinize the propriety of the filing, either when reviewing the conservator’s annual accounts that disclose the divorce-related expenditures, or upon the petition of an interested party.
 
Endnotes:
 
1 Smith v Smith, 125 Mich App 164, 165; 335 NW2d 657 (1983).
2 Id.
3 Id. at 166.
4 The Court of Appeals acknowledged that the Michigan Supreme Court, in Stevens v Stevens, 266 Mich 446, 449; 254 NW 162 (1934), had stated in dictum that “an insane person, in the absence of statute, cannot bring an action for divorce either in his own name or in the name of his guardian[.]”  Smith, supra at 166 n 1.
5 Smith, supra at 166.
6 Id. at 166 n 2. 
7 Id. at 167.
8 Weiss v Weiss, No 230830, 2002 WL 1011754, at *1 (Mich App May 17, 2002).
9 Weiss, supra, at *1. (affirming trial court’s judgment). 
10 Id. at *2.
11 Houghton v Keller, 256 Mich App 336, 338; 662 NW2d 854 (2003).
12 MCL 552.6 provides as follows: “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.”
13 Houghton, supra at 338–39 (affirming trial court’s entry of judgment of divorce).
14 In re Burnett Estate, 300 Mich App 489, 492; 834 NW2d 93 (2013). 
15 Id. at 494 (internal quotation omitted). 
16 Id. at 495.
17 Id. at 496 n 6. 
18 Id.
19 Id. at 497. 
Michigan Probate & Estate Planning Journal (Vol. 33, No. 2)

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