Overruling Johnson v. Johnson’s Prohibition of Guardian-Initiated Divorces – Published Opinion from Supreme Court of Ky.

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Elderserve, Inc. ex rel. Brooks v. Hagerty

Jefferson Circuit Court

Questions Presented: Writ of Mandamus. Guardianship. Dissolution of Marriage.  While affirming the denial of a writ of mandamus, the Court overrules Johnson v. Johnson, 170 S.W.2d 889 (Ky. 1943) to the extent it strictly prohibited a guardian from initiating an action for dissolution of marriage on behalf of a ward. Legislative changes to Kentucky’s statutes have expanded guardian duties and the scope of guardianship proceedings in a more complex elder law environment. Accordingly, a guardian may seek permission from the district court overseeing guardianship to initiate a dissolution of marriage action on behalf of the ward, and the district court shall conduct a hearing to determine if such action is in the ward’s best interest.

Husband, who was 76, and Wife, who was 29 and Husband’s deceased wife’s caretaker before death, married after Husband’s deceased wife died. The Cabinet for Health and Family Services’ Adult Protective Services (“APS”) was alerted that Husband may be the victim of elder abuse and began an investigation. APS found Husband to be neglected and in poor physical condition. It sought emergency guardianship. Its subsequent investigation substantiated the allegation of exploitation and identified Wife as the person responsible for the exploitation and neglect. The Jefferson District Court found Husband to be wholly disabled in managing his personal and financial affairs and appointed APS as an emergency guardian with the powers and duties of both a guardian and conservator. Subsequently, the Jefferson District Court made the guardianship permanent and appointed Elderserve, Inc. as Husband’s guardian. Elderserve later found evidence that Husband was not competent to enter into marriage at the time of marriage and petitioned for annulment of Husband and Wife’s marriage.

Prior to the guardianship action, Wife obtained powers of attorney from Husband allowing her to liquidate and transfer the majority of Husband’s property to herself, including financial resources necessary for Husband’s continued care. Eldercare moved to recover the assets, but Family Court questioned whether it had jurisdiction over the property as part of the annulment action. Elderserve then moved to amend the petition to add a petition for dissolution of marriage to which Wife objected. Family Court denied the motion due to Johnson v. Johnson’s, 170 S.W.2d 889 (Ky. 1943), prohibition of guardian-initiated divorces. Elderserve sought a writ of mandamus from the Kentucky Court of Appeals instructing Family Court to permit Elderserve to amend the annulment action to include a petition for dissolution of marriage. In denying the writ of mandamus, the Court of Appeals held that Eldercare had an adequate remedy by appeal and that Johnson would prohibit Eldercare maintaining the action. Eldercare appealed to the Supreme Court of Kentucky.

The Supreme Court held that Husband did not have an adequate remedy by appeal given the current circumstances, and that Husband’s damages amount to great and irreparable harm. For a writ of the second class, the applicant must show an error by the court below that will result in great or irreparable injury that cannot be adequately rectified by appeal or otherwise and must show great injustice or irreparable harm even if an appeal is inadequate or unavailable. “Great and irreparable harm” means “something of a ruinous nature.” While the Court of Appeals was correct in holding that Husband had a remedy by appeal and had failed to show that Family Court was acting erroneously, denying the writ would have caused Husband to face unjust choices, either of which would have deprived him of his resources he had accumulated throughout his life and would have taken a long time. Thus, while there is a remedy by appeal, it is inadequate because the intervening time diminishes the chance that he will be fully compensated.

The Supreme Court held that Johnson’s interpretation of the 1942 statutes justifying a complete prohibition of a guardian-initiated dissolution of marriage is no longer applicable under the current statutory scheme. The Johnson rule was the majority rule at the time it was decided—that dissolution of marriage was too personal and volitional for the guardian to pursue. At that time, the statutory scheme was entirely different. Now, the guardianship statutes are intended “to provide services for incompetent persons not only as specifically articulated but also as reasonably inferable from the nature of the powers of a guardian,” which calls into question the viability of the holding of Johnson. The changes to the guardianship statutes render Johnson’s holding unwarranted with expanded guardian duties and a more complex elder law environment. Thus, Johnson is overruled to the extent it held a guardian could not maintain an action for dissolution of marriage. However, it should not be dependent on the pleasure of discretion of the guardian.

A guardian may not initiate an action for dissolution of marriage unilaterally. The guardian must seek permission from the district court with jurisdiction over the guardianship. The district court shall hold a hearing to determine if such action is in the ward’s best interests. The ward shall be permitted to participate to the extent of his abilities. The hearing should include an opportunity for the competent spouse to offer evidence as to why the divorce is not in the ward’s best interests, if feasible. If the guardian stands to personally benefit from the divorce, the district court may appoint a limited guardian for purposes of representing the ward’s interest in the matter.

Digested by Nathan R. Hardymon

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