IN RE: the MARRIAGE OF Lolita A. and William Howell HIGGASON.

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Court of Appeal, Second District, Division 5, California.

IN RE: the MARRIAGE OF Lolita A. and William Howell HIGGASON. Lolita A. HIGGASON, Respondent, v. William Howell HIGGASON, Appellant.

Civ. 39431.

Decided: January 04, 1973

Lindsey & Newman and James T. Lindsey, Santa Barbara, for appellant. Schramm, Raddue & Seed and Edward W. Schramm, Santa Barbara, for respondent.

This is an appeal by the appellant-husband (sometimes hereinafter referred to as Husband) from an interlocutory judgment of dissolution of marriage obtained by the guardian ad litem of the respondent-wife (sometimes hereinafter referred to as Wife) and from the trial court's orders denying Husband's motions for spousal support, division of community property, attorney's fees and costs, and payment of debts.

The parties were married on March 2, 1969, after an acquaintance of some 15 years.

The petition initiating the present proceeding below is captioned ‘In re the Marriage of Petitioner Lolita A. Higgason by Lolita M. Lanning, her guardian ad litem, and respondent William Howell Higgason.’ Mrs. Lanning is Wife's adopted daughter and is the conservator of her person. A bank is conservator of her estate. The petition sought a dissolution of the marriage on the ground of irreconcilable differences (Civ.Code, § 4506, subd. 1.)1 and as well as judgment of nullity pursuant to section 4425, subsections (d) and (f).

The issue presented on this appeal is whether a proceeding for dissolution of a marriage or alternatively, for nullity of the marriage pursuant to section 4425, subsections (d) and (f), may be brought by a guardian ad litem on behalf of Wife. We have determined that it may not, and that the trial court should be directed to dismiss the proceeding. Because of this disposition we do not reach another question involved here—whether the provisions of an antenuptial agreement providing that each party to the intended marriage waive and release ‘any and all rights and contribution to the support, maintenance and expenses of the other party’ are valid.

On March 22, 1971, Mrs. Lanning secured her own appointment as guardian ad litem of Wife for the purpose of bringing an action for annulment or in the alternative for the dissolution of Wife's marriage to Husband and the petition seeking such relief was filed at that time. To procure this appointment Mrs. Lanning filed a petition stating that the bank as conservator of Wife's estate had declined to act as guardian ad litem in the Family Law Act proceeding and further stating that Wife had grounds for annulment or dissolution ‘and has instructed petitioner as the Temporary Conservator of her Person to take such steps as may be necessary’ to accomplish that result.

After the filing of the petition Husband moved to quash it on the ground that a guardian ad litem had no authority to bring such a proceeding on behalf of a ward. The motion was orally argued to, and denied by, the trial court.2 Husband has not properly preserved the issue in his brief on this appeal. However, we regard the question to be one of such importance that we must consider it now. We may of course decide a case on any proper theory whether urged by counsel or not. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 426, p. 4393 and cases cited.)

Our attention has not been called to any cases discussing the right of a guardian to prosecute a matter under the Family Law Act, which became effective January 1, 1970. (Civ.Code, §§ 4000 et seq.) The act itself however, and rules promulgated by the Judicial Council in furtherance thereof,3 furnish us with guidance.

The Family Law Rules (promulgated by the Judicial Council) are found in rules 1201 through 1291.40 exclusive of the California Rules of Court. Rule 1206 provides that:

‘Except as otherwise provided in these rules, all provisions of law applicable to civil actions generally apply regardless of nomenclature to a proceeding pursuant to the Family Law Act if they would otherwise apply to such proceeding without reference to this rule. To the extent that these rules conflict with such provisions, these rules shall prevail.’

Rule 1210 states:

‘The party initiating the proceeding is the petitioner, and the other party is the respondent. Every proceeding shall be prosecuted and defended in the names of the real parties in interest.’

Finally, rule 1211 reads as follows:

‘(a) Except as provided in subdivision (b), the only persons permitted to be parties to the proceeding are the husband and wife. [¶](b) In a nullity proceeding commenced by a person specified in Civil Code Section 4426, other than a proceeding commenced by or on behalf of the husband or wife, the person initiating the proceeding is a party and the caption on all papers shall be suitably modified to reflect that fact.’

It is at once seen that the spouses themselves are ‘the only persons' who may be parties to a dissolution proceeding, based, as here, on the ground of irreconcilable differences. Nothing in the Family Law Act itself is to the contrary.4 Therefore, insofar as the present petition seeks a dissolution, it was filed in express contravention of the Family Law Act and Rules.

Insofar as the petition sought to nullify the marriage5 section 4426 shows in dispositive fashion that a guardian ad litem may not bring the action on the grounds asserted here. That section is set forth in full in the margin.6

As can be seen, for other grounds of annulment (subdivisions (a) and (c) of section 4425) parents, relatives, guardians or other persons may bring the action. But for the causes asserted here only ‘the party injured’ (subd. (d)) or ‘the injured party’ (subd. (f)) can commence the proceedings.

Therefore, insofar as annulment is sought the petition was likewise filed in express contravention of the Family Law Act and Rules.

On petition for rehearing it is suggested that this construction of the Family Law Act and Rules conflicts with section 372 of the Code of Civil Procedure. If this is so, and we do not reach the question, it is clear that the Family Law Act and Rules are to prevail. (In re Marriage of McKim, 6 Cal.3d 673, 678, fn. 4, 100 Cal.Rptr. 140, 493 P.2d 868.)

Cases prior to the adoption of the Family Law Act confirm that this matter was improperly commenced. In Cohen v. Cohen, 73 Cal.App.2d 330, 166 P.2d 622, a divorce was granted to a wife on the basis of a cross-complaint filed by a guardian ad litem. The Court of Appeal reversed, stating that ‘The weight of authority would seem to be that a suit for divorce must be regarded as one which is so strictly personal that it cannot be maintained at the pleasure of a guardian or committee of an insane spouse.’ (P. 335, 166 P.2d p. 625.)

Pointing to the interest of the state in the marital status as the foundation stone of the social order, the court held that it was error to permit a guardian ad litem to seek a divorce for a ward. The court stated, ‘If appellant [the wife] was incompetent, she was incapable of consenting to a divorce; if, as testified . . . at the trial, she was ‘sane enough so that no court in this country would ever declare her insane,’ her personal oath to the divorce pleadings should have been obtained. At no time during the trial, so far as the record discloses, was the wife asked by her guardian, opposing counsel or the court, whether she desired a divorce or whether she had read her amended pleadings.' (73 Cal.App.2d 330, at pp. 336–337, 166 P.2d 622, at p. 626.)7

Given the public interest in the stability of the marriage relationship the problem is thus seen as more than a merely procedural one as to whom to name in the caption of a Family Law Act petition.

Pulos v. Pulos, 140 Cal.App.2d 913, 295 P.2d 907, recognizing the holding in Cohen, supra, held that a guardian ad litem might sue for separate maintenance as contrasted to divorce. We are not faced with such a proceeding, and in any event section 4508, subdivision b, would preclude one in the absence of the consent of both parties. (See fn. 3, supra.)

In denying the motion to quash, the trial court felt that there had to be a remedy for an incompetent person who was the victim of marital misconduct. The provisions of the Family Law Act and Rules, which we have quoted, leave no room for this court to fashion a remedy contrary to the express legislative scheme.

The adoption of the Family Law Act does not in any way lessen the state's concern over the institution of marriage. (See In re Marriage of McKim, supra, 6 Cal.3d 673, 679–680, 100 Cal.Rptr. 140, 493 P.2d 868.) Thus the same policies that impelled the court in Cohen v. Cohen, supra, 73 Cal.App.2d 330, 166 P.2d 622, to hold that the marriage relationship was too personal to allow it to be destroyed on the petition of a guardian for a spouse, still apply today.

Since the action below was improperly brought it must be dismissed. Therefore, we do not reach the question whether Wife is competent to bring a proceeding under the Family Law Act in her own right, if she so desires,8 nor whether in light of the existing conservatorship of her person and estate section 372 of the Code of Civil Procedure would preclude her from so doing.9

The judgment of dissolution is reversed with directions to the trial court to dismiss the proceeding.



1.  Unless otherwise stated, all statutory references are to the Civil Code.

2.  The denial was apparently on the ground ‘that the suit can be treated as an action for separate maintenance’ and also on the ground that under Pulos v. Pulos, 140 Cal.App.2d 913, 295 P.2d 907, ‘if it is an annulment suit, that is sufficient.’ The separate maintenance argument overlooks the provisions of Civil Code section 4508, subdivision b, that ‘the court may not render a judgment decreeing the legal separation of the parties without the consent of both parties unless one party has not made a general appearance and the petition is one for legal separation . . ..’ (Emphasis added.)

3.  Section 4001: ‘Notwithstanding any other provision of law, the Judicial Council may provide by rule for the practice and procedure in proceedings under this part.’

4.  If a dissolution is sought on the grounds of incurable insanity (§ 4506(2)) then a guardian or guardian ad litem must defend the interests of the insane spouse (§ 4510). This matter does not involve the ground of incurable insanity.Other provisions of the Family Law Act dealing with joinder of persons who claim an interest in the proceeding (§ 4363) and in the Family Law Rules concerning joinder of parties (Rules 1250–1255) do not relate to guardians an litem.

5.  It will be remembered that the petition was based on subdivisions (d) and (f) of section 4425. Subdivision (d) provides that it is ground for annulment if at the time of the marriage ‘The consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife.’ Subdivision (f) provides a ground if ‘Either party was, at the time of marriage, physically incapable of entering into the marriage state, and such incapacity continues, and appears to be incurable.’

6.  ‘A proceeding to obtain a judgment of nullity of marriage, for causes set forth in Section 4425, must be commenced within the periods and by the parties, as follows:‘(a) For causes mentioned in subdivision (a): by the party to the marriage who was married under the age of legal consent, within four years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such nonaged male or female, at any time before such married minor has arrived at the age of legal consent.‘(b) For causes mentioned in subdivision (b): by either party during the life of the other, or by such former husband or wife.‘(c) For causes mentioned in subdivision (c): by the party injured, or relative or guardian of the party of unsound mind, at any time before the death of either party.‘(d) For causes mentioned in subdivision (d): by the party injured, within four years after the discovery of the facts constituting the fraud.‘(e) For causes mentioned in subdivision (e): by the injured party, within four years after the marriage.‘(f) For causes mentioned in subdivision (f): by the injured party, within four years after the marriage.’ (Emphasis added.)

7.  In the present case Wife's deposition was presented to the court. It was properly noticed but Husband's counsel did not appear in time, later stating that because of a substitution of attorneys he did not find out until the last minute, that he was supposed to attend. The deposition reads in full as follows:‘MR. SCHRAMM [Counsel for the guardian ad litem]: Let the record show that it is now, by my watch, seven minutes after the hour of 4:00 o'clock on the 18th of May. [¶] THE WITNESS: I think you are right. [¶] MR. SCHRAMM: What does your watch indicate, Mr. Reporter? [¶] THE REPORTER: My watch says four after, but I am sure it is slow. [¶] MR. SCHARAMM: Would you make a note in the record that your watch indicates four minutes after the hour? [¶] EXAMINATION [¶] BY MR. SCHRAMM: [¶] Q. Now, Mrs. Higgason, as I explained to you, this deposition is being taken in lieu of an appearance in court for you, to save you the difficulty and inconvenience of going down to court, because you have been suffering from an illness. [¶] A. Well, I have this arthritis in my knee. [2] Q. Yes. Now, your name is Lolita Armour Higgason, is it not? [2] A. That is right. [¶] Q. You are married to William Howell Higgason? [¶] A. Yes. [¶] Q. Now, I understand that the date of the marriage ceremony was March 2, 1969. Am I correct? [¶] A. I think so. [¶] Q. Shortly after your marriage, in August of the same year, you filed an action for annulment, didn't you? [¶] A. Yes. [¶] Q. Then that was dismissed? [¶] A. That is right. [¶] Q. Then in October, on October 6th of 1970, you filed an action for divorce against your husband? [¶] A. Yes. [¶] Q. That was dismissed, I gather. [¶] A. Yes. [¶] Q. Now, on March 22nd, you filed this pending action for divorce? [¶] A. Yes. [¶] Q. In your petition for dissolution of marriage, you stated that there are irreconcilable differences between you and your spouse, which have caused the irremediable breakdown of your marriage; is that true? [¶] A. Yes. [¶] Q. I understand that you feel that you have given your husband two chances, and the third time he struck out. [¶] A. Well, he thought I was taking dope, and that is more than I ever would take from anybody. I don't care whether it was family, or friends, or whatnot. [¶] Q. No, of course not. At any rate, as far as you are concerned, the marriage is over? [¶] A. Oh, yes, very much so. [¶] Q. Now, during the course of your marriage, you haven't been employed or had any earnings of any kind, have you? [¶] A. No. [¶] Q. And neither has your husband been employed at any time during the marriage? [¶] A. Not to my knowledge, no. [¶] Q. Of course, you have had no children. [¶] A. No. [¶] MR. SCHRAMM: Thank you. That is all there is. [¶] THE WITNESS: Thank you.‘[/s/] LOLITA HIGGASONWITNESS'

8.  We recognize that ‘The mere fact that a conservator is appointed is not a determination that the conservatee is in any wise ‘insane or incompetent.’ (Cf. Probate Code, § 1751; L.A. Bar Bulletin, Vol. 33, No. 1, p. 15.)' (Schuck v. Myers, 233 Cal.App.2d 151, 154, 43 Cal.Rptr. 215, 217.)The meaning of ‘competence’ must be determined by the nature of the activity for which competence is sought. Thus, although a person be incompetent to execute contracts, or have other mental abnormalities, he may very well be competent to execute a valid will. (Adams v. Superior Court, 49 Cal.2d 427, 432, 317 P.2d 983; Estate of Lingenfelter, 38 Cal.2d 571, 581, 241 P.2d 990; Estate of Arnold, 16 Cal.2d 573, 586–587, 107 P.2d 25; Estate of Nelson, 227 Cal.App.2d 42, 54, 38 Cal.Rptr. 459; Estate of Watson, 195 Cal.App.2d 740, 742, 16 Cal.Rptr. 125.)

9.  On petition for rehearing it has been represented to us that during the pendency of the present appeal from the interlocutory judgment of dissolution a final judgment of dissolution has been entered. Since the validity of the final judgment of necessity depends on a valid interlocutory judgment having been entered (§ 4514) the fact that the parties herein procured a final judgment during the pendency of this appeal from the interlocutory judgment does not alter our decision.

COLE, Associate Justice.* FN* Assigned by the Chairman of the Judicial Council.

KAUS, P. J., and STEPHENS, J., concur.