CAN GUARDIAN COMMENCE A DIVORCE ACTION ON BEHALF OF WARD

DE v. PA, 2016 NY Slip Op 51230 - NY: Supreme Court 2016:

"However, defendant also contends that Ms. K. cannot maintain this divorce action for plaintiff, as the guardian of the person and property of an incompetent person cannot maintain an action of absolute divorce against the incompetent person's spouse. In re Wechsler, 3AD3d 424 (1st Dept. 2004); Mohrmann v. Kob, 291 NY 181 (1943).

In Mohrmann, 291 NY 181, the Court of Appeals determined that then present Civil Practice Act Section 1147 prohibited the committee of the property of an incompetent person to prosecute an action for divorce on behalf of the incompetent person, as that section limits the right to maintain an action to procure a judgment of divorce to a husband or wife.^[2] The Mohrmann Court wrote

[i]t has been suggested that the authority granted to the committee of the property of an incompetent person by section 1377 of the Civil Practice Act is broad enough in scope to include an action for divorce on behalf of the incompetent. We think that when the Legislature by section 1147 of the Civil Practice Act limited to a husband or a wife' the right to maintain an action against the other party to the marriage to procure a judgment divorcing the parties and dissolving the marriage by reason of the defendant's adultery', the statutory restriction thus placed upon the right to bring such an action was not relaxed by the provisions of section 1377. The committee of the property of an incompetent has the duty of protecting the property of his ward and for that purpose has been given by section 1377 a general power to maintain in his own name any action which the person with respect to whom he is appointed might have maintained if the appointment had not been made.' A statute conferring upon the committee of the property of an incompetent a general power should not be construed to include the right to choose for the incompetent whether or not to ask the courts to dissolve the marriage tie in order to free the incompetent from its incidental obligations. It is our view that when the Legislature by section 1377 authorized the committee of the property of an incompetent person to bring any action or special proceeding' in behalf of the incompetent, the use of the word any' did not include an action for divorce which the Legislature has always treated separately and completely.

Mohrmann, 291 NY at 188-189.

Many years later in In re Wechsler, 3 AD3d 424 (1st Dept. 2004), the First Department, citing to Mohrmann as being dispositive on the issue, held that the guardian of the incompetent husband could not institute a no-fault divorce proceeding in Pennsylvania against the wife, despite the grant of authority to the guardian to "maintain any civil judicial proceeding." The Wechsler Court wrote that in Mohrmann the Court of Appeals "noted that whether to pursue divorce proceedings is a personal decision in which the element of volition is implicit." In re Wechsler, 3 AD3d 424. The Court further opined that "absent statutory authority permitting a guardian to commence a divorce on behalf of a ward, the courts may not assume to grant such power (citations omitted). Id. at 425.

Counsel for plaintiff claims that defendant's argument fails, as plaintiff has not been adjudged to be an incompetent person, and that there is no medical evidence to support her claim that plaintiff is incapacitated. In reply, counsel for defendant maintains that Ms. K.'s appointment as temporary conservator is proof contrary to such an assertion by plaintiff's counsel.

At this juncture, the issue of plaintiff's competency is before the Connecticut court. By order dated June 2, 2016, Ms. K.'s appointment as temporary conservator of the estate and person of plaintiff was extended to July 2, 2016. On June 23, the Connecticut court will be holding a hearing regarding Ms. K.'s petition pursuant to which she is seeking to be appointed as conservator of plaintiff.

Based on the foregoing, in the event that the Connecticut court finds plaintiff to be incompetent, Ms. K., as his conservator will not be able to continue to prosecute this action for divorce on his behalf. Once plaintiff is found to be incompetent, Ms. K. can no longer maintain the action, as the Court of Appeals has held that the statute providing for an action for divorce (currently DRL §170) limits the right to maintain an action to procure a judgment of divorce to a husband or wife. Therefore, even assuming arguendo, that plaintiff was competent when the action commenced, if he is found to be incompetent at a later stage in the proceedings, the action must be dismissed."