Washington Divorce Granted Despite Party’s Incapacity

A court must appoint a guardian ad litem when a party to an action is incapacitated and does not have a guardian.  RCW 4.08.060.  In In re Marriage of Gannon, the Washington Supreme Court held that a guardian or guardian ad litem may pursue a Washington divorce on behalf of an incompetent ward if it is in the ward’s best interests, noting that never allowing divorce to be pursued on behalf of the incompetent spouse would allow the competent spouse “absolute, final control over the marriage” and such a result was “not equitable.”  The trial court must hold a hearing to determine whether dissolution is in the ward’s best interest.

In a recent unpublished case, an appeals court considered whether the trial court properly granted a divorce.  According to the appeals court’s opinion, the parties married in 1989.  The husband was diagnosed with Alzheimer’s disease in 2014. The parties started having arguments, including a physical altercation in 2016. The wife testified that she told the husband she was afraid he would kill her if she stayed with him. A neighbor testified the husband came to his house and said he could not go home because he was afraid he would be killed.  The neighbor testified the husband asked him to call the police.  The police arrested the wife.

The husband’s children tried to obtain a vulnerable adult protection order, but were unsuccessful. The wife requested a Guardian Ad Litem for her husband, stating she wanted to maintain their finances and control over his healthcare decisions.  The husband signed a durable power of attorney for healthcare and durable power of finances. He stated he wanted a divorce.

The wife petitioned for legal separation in December and the parties reached a separation settlement in January. According to the Guardian Ad Litem, the husband had the “requisite capacity” to enter into the settlement agreement. The wife and a bookkeeping service were appointed co-attorneys in fact and the guardianship action was dismissed.

The husband petitioned for divorce in August, 2017. According to the appeals court’s opinion, he was not incapacitated at the time. The wife requested a litigation guardian ad litem for the husband in March 2018. The court ordered the litigation guardian ad litem to investigate whether any physical or mental health conditions affected the husband’s ability to make informed decisions about the divorce case.  The litigation guardian ad litem reported that the husband was unable to make medical, financial, or personal decisions in May 2018 due to chronic progressive cognitive dysfunction.

A couple of weeks before the trial, the wife moved to dismiss the case because there had been no Gannon hearing to determine if divorce was in the husband’s best interest. The court found the motion was untimely and denied it, but ultimately ruled it would address the issue during the trial.

The court heard evidence on this issue, including testimony about domestic violence.  There was also testimony the wife had not properly provided for the husband’s health care or taken care of the community assets.

The trial court found that divorce was in the husband’s best interest “based on the domestic violence . . . and the need for assets. . .”  The court ultimately awarded the wife all but one of the community properties. That property was to be sold with the proceeds going toward the parties’ joint and separate debts, including the debts for the husband’s assisted living and guardianship fees that had been paid by the husband’s children.

The final divorce decree was entered on August 22, 2019. The wife had previously filed for discretionary review and the appeals court converted the discretionary review to an appeal.  The husband died during the pendency of the appeal.

The wife argued the trial court erred in failing to hold a pretrial Gannon hearing. The appeals court noted the husband had filed his petition before he was determined to be incompetent.  The Gannon requirements, the court said, are required to determine if a divorce case should proceed when the guardian seeks to petition for the divorce on behalf of an incompetent ward.  The husband, however, had filed his petition and shown his intent to end the marriage before he was incompetent. The appeals court questioned whether a Gannon hearing was necessary under the circumstances, but found that the court met the requirements by holding a hearing during trial.

The wife also argued the trial court erred in excluding testimony of lay witnesses regarding the husband’s incapacity. Generally, only an expert may offer opinion testimony if the opinions are “based on scientific, technical, or other specialized knowledge.” ER 701; ER 702. An opinion regarding the incapacity of a person requires specialized knowledge or experience.  The trial court therefore found lay witness testimony regarding the husband’s incapacity and related behavior was irrelevant when there was not expert testimony to corroborate it. The appeals court agreed, finding no error in the exclusion of the testimony.

Additionally, the appeals court did not find error in the trial court’s finding the payments made by the children were community debt.

The appeals court affirmed the divorce decree.

Divorce cases involving a party with dementia or other conditions that may be incapacitating can be complex.  If you are facing such a divorce, you need an experienced Washington divorce attorney on your side.  Call the offices of Blair & Kim, PLLC, at (206) 622-6562 to schedule a consultation.


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