The July 20, 2022, Court of Appeals opinion in Dover v. Ball, 437 S.C. 82, 876 S.E.2d 161 (Ct. App. 2022), affirms a family court order that a conservator and guardian can bring a separate maintenance action on an incapacitated person’s behalf.
Ball stems from a long-term marriage in which both spouses were advanced in age and Husband was incapacitated. In 2010, Husband granted Wife a durable power of attorney and granted Daughter a healthcare power of attorney. Five years later, in April 2015, the probate court declared Husband an incapacitated person.
Three years after that, in 2018, Daughter petitioned the probate court to appoint her as Husband’s conservator and guardian. The probate court found Wife did not have Husband’s best interests at heart and granted Daughter’s petition. Not long after that, Daughter filed a suit for separate maintenance on her father’s behalf.
Wife sought to dismiss the suit. In family court, and in the Court of Appeals, her main argument was that a guardian cannot bring an action for separate support and maintenance because that sort of claim is “strictly personal.” She argued such a suit would only be proper if the person protected by the guardianship indicated a desire for such an action. Wife also argued that Daughter had a conflict of interest because she was a potential beneficiary of Husband’s estate and that this barred her from bringing the case. The family court denied Wife’s motion to dismiss. After trial, the family court equitably divided the $3.1 million marital estate. Wife appealed.
Wife relied upon the case of Murray by Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993), where South Carolina’s Supreme Court held a conservator could not bring an action for divorce because “a divorce action is so strictly personal and volitional that it cannot be maintained at the pleasure of a guardian, even if the result is to render the marriage indissoluble on behalf of the incompetent.” Murray did allow “that a mentally incompetent person who was able to exercise reasonable judgment as to personal decisions and understand the nature of the action could seek a divorce through a guardian if able to unequivocally express the desire to dissolve the marriage.” The Court of Appeals distinguished Murray by noting “that an action to dissolve the martial relationship is different than an action involving someone’s real or personal property.”
It further noted that because a separate maintenance action does not terminate the marital relationship, “a suit for separate support and maintenance is meaningfully different than a suit for divorce.“ Moreover, “a suit for separate support and maintenance is sometimes necessary to enforce the marital obligation of support.” That was Daughter’s basic contention. She argued that “this proceeding is about granting Husband the financial means to care for himself because Wife refuses to use marital assets to support Husband.”
The Court of Appeals also rejected Wife’s conflict of interest argument. Wife had argued that only a guardian for Husband could proceed with action. The Court of Appeals noted that the family court had appointed a guardian for Husband and that the guardian supported Daughter’s pursuit of a separate maintenance claim.
As our society has an increasing number of very old folks (85+) the fact pattern in Ball is likely to recur. Right now I am handling a separate maintenance case between two elderly spouses in which my client died during the litigation, with a relative being appointed in her stead, while the other spouse is allegedly so incapacitated that his family is seeking the appointment of a guardian.
The public policy supporting marriage supports Murray’s view that a guardian or conservator cannot dissolve a marriage absent a clear desire from the mentally incompetent person. However separate maintenance actions are often needed to protect a mentally incompetent person’s assets or provide for such person’s support. To not allow guardians or conservators to bring such actions would leave mentally incompetent spouses at the mercy of their (sometimes mentally incompetent) spouse.
Much needed clarification of the law. I handled a similar case many years ago. J. Wylie cautiously granted the final order. It helped that it was financially in both parties best interest, because of the benefits that became available to one of them upon separation.