Metropolitan News-Enterprise


Tuesday, October 26, 2010


Page 3


Alzheimer’s Patient May Sue for Divorce, Court of Appeal Says


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal yesterday revived a divorce petition by an elderly Alzheimer’s patient adjudged to be incompetent.

Div. One explained that the trial court had erred in dismissing the petition sua sponte without providing the parties with adequate notice and without first determining whether Evelyn Straczynski was capable expressing an intent to obtain a dissolution of her marriage on account of irreconcilable differences.

Straczynski began divorce proceedings in August 2005, but her husband, Charles Straczynski, alleged in his response that she suffered from Alzheimer’s disease, dementia and was “not truly aware of what she is doing at this time.”

Evelyn Straczynski was placed in an assisted living program that November, but when San Diego Superior Court Judge David B. Oberholtzer interviewed her, he found she had “sufficient capacity to determine she wanted a divorce.”

Over the course of the next two years, Oberholtzer ruled on a number of motions, finding, among other things, that a 1986 prenuptial agreement was enforceable and that Straczynski’s husband was obligated to pay her half of the proceeds of the sale from the family home plus an additional $265,000. Oberholtzer also ordered the husband to pay all expenses associated with Straczynski’s care and medications.

Conservatorship Case

Proceeding concurrently with this dissolution action was a conservatorship case in the probate court regarding Straczynski. The probate court found Straczynski was not competent to be in an attorney-client relationship and appointed a guardian ad litem and conservator for her estate. The probate judge also specified that the conservator “shall have standing to litigate the Family Court matters on behalf of the conservatee.”

In December 2008, the conservator filed an application requesting a trial date be set in the dissolution proceeding, but the husband objected, He claimed Straczynski had regained “a significant amount of competency” and filed a motion to dismiss the dissolution proceeding on the ground that he had reconciled with his wife.

At the hearing on the motion, Oberholtzer opined that Straczynski “would be better off financially if she were not divorced” in light of the prenuptial agreement, although he declined to find the parties had reconciled since they were “not living as husband and wife.”

However Oberholtzer went on to dismiss the dissolution petition as moot. “I don’t think there’s going to be any evidence presented that I can find, by a preponderance of the evidence, that irreconcilable differences have irremediably…broken the marriage asunder,” he said. “And I think there’s case law that says I can’t give a divorce if there’s a conservator, anyway.”

Writing for the appellate court, Justice Joan Irion explained that Oberholtzer had erred in dismissing the divorce action on his own motion on the grounds that he identified at the hearing, without giving the parties prior notice that he was considering a dismissal on such a basis.

The failure to provide notice and opportunity to respond before dismissing the petition violated the parties’ due process rights, Irion said, emphasizing “[t]he proper procedure for the trial court to use in ordering a sua sponte dismissal of the dissolution action would have been the issuance of an order to show cause and the setting of a hearing to consider a dismissal on the specified grounds.”

No Authority

Irion added that the dissolution action was also dismissed without a proper legal basis, noting the absence of any legal authority permitting a court to dismiss a dissolution action on the ground that a divorce would not be in the petitioning party’s best interest.

She criticized Oberholtzer for having impermissibly prejudged whether he would be able to find irreconcilable differences, by “admittedly…predicting what the evidence was ‘going to be’ at a future trial.”

The justice further said Oberholtzer was mistaken regarding the applicable authority for divorces involving conservatees. Irion cited In re Marriage of Higgason (1973) 10 Cal.3d 476, which held that a spouse under a conservatorship may bring a dissolution action through a guardian ad litem “provided it is established that the spouse is capable of exercising a judgment, and expressing a wish, that the marriage be dissolved on account of irreconcilable differences and has done so.”

Although Higgason did not expressly address the circumstances under which a conservatee may maintain a dissolution action when her mental condition changes during the proceedings, Irion reasoned that it was still controlling since “the act of filing a divorce petition and maintaining a divorce action through to final judgment both have the same intensely personal quality.”

Joined by Justices Judith L. Haller and Terry B. O’Rourke, Irion directed the trial court to issue an order to show cause on the issue of whether Straczynski is currently capable of exercising a judgment and expressing a wish that the marriage be dissolved on account of irreconcilable differences.

The case is In re Marriage of Straczynski, 10 S.O.S. 6065.


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