In Re the Marriage of Gannon

702 P.2d 465, 104 Wash. 2d 121, 1985 Wash. LEXIS 1244

• Court: Washington Supreme Court
• Decided: July 3, 1985
• Docket: 51130-6
• Status: Published

Opinions

Brachtenbach, J.

Two questions are presented: (1) Does the court have jurisdiction to award separate maintenance independent of a statutorily authorized action for marriage dissolution? (2) Does a guardian ad litem (GAL hereafter) have authority to seek the dissolution of the marriage of the incompetent spouse?

First, the facts. The parties were married in 1964, the third marriage for each. After a separation of about 16 months, the wife sought an order of separate maintenance. She specifically alleged that the marriage was not irretrievably broken. A GAL was appointed to represent the husband in this action. The report of the GAL, a lawyer, recommended a counter petition for dissolution, stating: "[w]ith the aid of the prenuptial agreement, further dissipation of the liquid assets of [the husband] can be prevented. " At trial the wife was age 83, the husband 89.

Trial resulted in dismissal of the actions of both parties. The court held (1) that it had no subject matter jurisdiction to award maintenance absent a concomitant action for dissolution, and (2) that the GAL had no standing to seek a dissolution on behalf of the legally incompetent husband.

As to the separate maintenance action, the husband argues that the 1973 dissolution of marriage act, RCW 26.09, does not authorize separate maintenance except as a temporary measure, pending the resolution of a dissolution action. His argument is that the courts were specifically authorized to award separate maintenance by our 1949 divorce act, Laws of 1949, ch. 215, § 12, and that that power was repealed by Laws of 1973, 1st Ex. Sess., ch. 157, § 30. The husband thus concludes that a court no longer has the power to grant separate maintenance.

We hold that the superior court has jurisdiction to award separate maintenance quite apart from the pendency of a dissolution action. Our constitution vests in the courts jurisdiction of "all matters of . . . divorce . . . and for such special cases and proceedings as are not otherwise provided for." Const, art. 4, § 6.

This court established the common law remedy of separate maintenance in 1897 in Kimble v. Kimble, 17 Wash. 75, 83, 49 P. 216 (1897). In Kimble the court wisely noted that the parties may choose not to seek a divorce because of principles of conscience or religion coupled with a hope of reconciliation, and then said: "[b]ut in the meantime she must live." Even after the passage of the divorce act of 1949, the courts continued to recognize the common law remedy of separate maintenance in cases in which divorce had never been sought and the statute did not apply. Hoffman v. Hoffman, 57 Wn.2d 684, 359 P.2d 153 (1961) (separate maintenance denied on other grounds).

From the record it appears there are property squabbles between her side of the family and his which have made their current separation desirable. In the meantime, they both have to live. It is within the trial court's discretion to allocate the resources of each party so that they both can attempt to live within their means quite without regard to the ultimate distribution of their estates at death. At their respective ages, their needs are somewhat immediate. Given our constitutional jurisdiction and the equities of this situation, we hold that jurisdiction does lie for this action.

A difficult question is posed in determining whether a GAL has power to seek a dissolution when the legally incompetent person either rejects the suggestion that a dissolution be sought, or is not competent to express a choice realistically. Here the husband said he did not want a divorce. Yet it is clear that he was quite confused about most subjects to which he testified. A general guardian has also been appointed for him. The record does not contain the order of appointment for either the GAL or the general guardian and neither party questions the authority of the GAL vis-a-vis the general guardian as to this issue; however, both appear to support the petition for a dissolution.

The GAL relies for his authority to bring this petition on RCW 11.88.090(1), which authorizes a guardian to commence and prosecute any suit on behalf of the incompetent. The vast majority of courts hold that a guardian has no authority to seek a divorce or dissolution. The cases are collected in Annot., 6 A.L.R.3d 681, 683-88 (1966). The collected cases often rely upon the truism that a decision to dissolve a marriage is so personal that a guardian should not be empowered to make such a choice for the incompetent. As a general proposition that rationale is valid. However, in these days of termination of life support, tax consequences of virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly changing society, we think an absolute rule denying authority is not justified nor in the public interest. To the extent that Jones v. Minc, 77 Wn.2d 381, 462 P.2d 927 (1969) endorsed such an absolute rule, we overrule that case.

Generally, a guardian should not determine this question for the incompetent. However, there may be circumstances in which a court may authorize a general guardian or a GAL to seek a dissolution. Unless this course of action is available, the competent party is vested with absolute, final control over the marriage. This is not equitable. The relevant situations in which such authorization may be appropriate are potentially so varied that we do not attempt to enumerate them here. E.g., In re Marriage of Higgason, 10 Cal. 3d 476, 516 P.2d 289, 110 Cal. Rptr. 897 (1973); Boyd v. Edwards, 4 Ohio App. 3d 142, 446 N.E.2d 1151, 1159 (1982). In such situations the court's primary consideration must be the best interests of the ward, although the court must also bear in mind possible legal obligations to a spouse.

In this case there is nothing in the record before this court which would warrant such an extraordinary step. The only purpose advanced by the GAL for seeking a dissolution is that such a move would prevent the dissipation of the husband's estate. However, it seems apparent from the financial evidence presented that sufficient assets exist to meet the living expenses of both parties comfortably. There must be some allegation that a dissolution is in the best interests of the ward, not just of his heirs. See In re Jennings, 187 N.J. Super. 55, 453 A.2d 572 (1981). However, the GAL may be able to develop such evidence on remand.

In cases in which the guardian or GAL believes a dissolution to be in the best interests of the incompetent ward, such authority must be sought specifically by a special petition for that purpose. The court must then hold a hearing to obtain evidence of what action is in the best interests of the ward. The discretion of the trial court will test these matters, again with great emphasis upon the interests of the ward and the necessities and interests of the competent spouse.

The matter is remanded for determination of separate maintenance to the wife, and for a hearing as to whether the GAL or general guardian should be authorized to file a petition for dissolution on behalf of the husband.

Dolliver, C.J., and Utter, Pearson, Callow, and Goodloe, JJ., concur.