Panel Says Judge Was Obliged to Hold Hearing on Competence of
Husband to Decide to End Marriage
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has taken the rare action of reversing a judgment dissolving a marriage, holding that a judge of the Orange Superior Court erred in declining to hold a hearing to determine if there was merit to the wife’s contention that her husband lacked the mental capacity to determine that he wanted a divorce.
Under a status-only judgment by Judge Sandy N. Leal, the 39-year marriage of Wayne Steven Hermes and Julie Amanda Hermes ended on Oct. 4, 2019. That judgment was reversed in an unpublished opinion filed Wednesday.
Not specified by the author of that opinion, Justice Richard D. Fybel, is whether the Hermes’s present status is that of husband and wife—or whether that prior status will be restored upon finality of the opinion in 30 days. The answer was provided yesterday by an expert in appellate and family law, Julia C. Shear Kushner, who advised:
“Per Family Code Section 2341, subdivision (b) since this appeal challenged termination of marital status, the dissolution judgment was stayed pending the resolution of the appeal. As a result, the parties have been married for the duration of the appeal. Because the statute automatically stayed the dissolution judgment, the parties marital status was not terminated. So the parties are currently married—and have always been married throughout the proceedings.”
The wife questioned the husband’s mental competence based on a marked change of mood and personality following a concussion he suffered in a 2012 bicycling accident, as well as concussions incurred in subsequent mishaps. She attempted at various points in the divorce proceedings to have medical evidence heard as to her husband’s mental competence but it was spurned by the judge, who suggested she might seek a conservatorship.
Kushner said in Wednesday’s opinion:
“Mental capacity is required to enter into a valid marriage….Lack of capacity therefore can be raised as a defense to a petition for dissolution of marriage….The requisite mental capacity must be maintained throughout the dissolution action….”
He went on to say:
The trial court’s admonition to Julie to seek a conservatorship confirms the court misunderstood the scope of its authority. The standard for appointing a conservatorship and the standard for mental capacity to end a marriage are not the same.”
The jurist explained that competence to seek a divorce entails an ability to exercise judgment and to express a desire for termination of a marriage based on irreconcilable differences, while a conservatorship requires, under Probate Code §1801(a), that the person be “unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter.” He wrote:
“[A] person may be the subject of a conservatorship yet still have the capacity to end a marriage….[I]f a conservator were appointed for Wayne, the trial court still would have the obligation to make a finding on the issue of Wayne’s mental capacity to seek a divorce. “The trial court also mistakenly believed it did not have the authority to order a physical and mental examination of Wayne. The trial court had such authority pursuant to Evidence Code section 730. Although the trial court is not required to order an examination of Wayne, it must at least consider whether to do so.”
The full disposition reads:
“The judgment of dissolution is reversed. The matter is remanded with directions for the trial court to do the following: (1) determine whether to order a physical and mental examination of Wayne; (2) conduct an evidentiary hearing on the issue of Wayne’s mental capacity to bring and maintain a petition for dissolution of his marriage to Julie; and (3) make a determination on the issue of Wayne’s mental capacity to bring and maintain a petition for dissolution of his marriage to Julie. If the trial court finds that Wayne had the requisite mental capacity at all appropriate times, then the judgment of dissolution shall be reinstated. Appellant to recover costs on appeal.”
The case is Marriage of Hermes, G058623.
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