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In re Marriage of Straczynski

October 22, 2010

IN RE THE MARRIAGE OF EVELYN D. AND CHARLES STRACZYNSKI.
EVELYN D. STRACZYNSKI, AN INCOMPETENT PERSON, ETC., APPELLANT,
v.
CHARLES STRACZYNSKI, RESPONDENT; MARILYN KRIEBEL, AS CONSERVATOR, ETC., APPELLANT.



APPEALS from a judgment of the Superior Court of San Diego County, David B. Oberholtzer, Judge. Reversed with instructions. (Super. Ct. No. D492293).

The opinion of the court was delivered by: Irion, J.

CERTIFIED FOR PUBLICATION

Evelyn D. Straczynski, through her conservator Marilyn Kriebel, and separately through her guardian ad litem Boris Siegel, appeals from the trial court's sua sponte dismissal of her petition for dissolution of marriage from her husband Charles Straczynski. Among other things, the trial court dismissed the action after determining that due to Evelyn's advanced dementia, financial situation, and current relationship with Charles, dismissal would be in her best interest.*fn1

As we will explain, the trial court erred in dismissing the action sua sponte. Accordingly, we reverse the judgment and we remand with instructions that the trial court issue an order to show cause regarding whether -- as is required for the prosecution of a dissolution petition by a party who is subject to a conservatorship -- Evelyn currently has the necessary capacity to express an intent to obtain a dissolution of her marriage to Charles on account of irreconcilable differences.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2005, Evelyn filed a petition for dissolution of marriage to Charles. The petition alleged that the parties had been married since 1950. In Charles's response, he stated that the parties married in 1986.*fn2 He also alleged that Evelyn "has Alzheimer's disease and also suffers from dementia" and "is not truly aware of what she is doing at this time."

At some point, which is unclear from the appellate record, the trial court interviewed Evelyn and found her "to have sufficient capacity to determine she wanted a divorce from [Charles]."

In November 2005, the parties stipulated that Evelyn's current health needs would best be served by placing her in an assisted living program.*fn3 In June 2006, the trial court entered a stipulated order regarding the parties' assets, which included an agreement to sell the parties' home, close a business and place certain restrictions on the movement of funds. In May 2007, the trial court ruled on a number of motions brought by Charles. The rulings included that (1) the parties' 1986 prenuptial agreement was enforceable; (2) the proceeds of the sale of the family home were to be divided equally; (3) Charles was to pay over to Evelyn an additional $265,000 as her share of community property; and (4) Charles was to pay all expenses associated with Evelyn's care and medications as spousal support, at a minimum amount of $500 per day.

In January 2008, the court made further orders, including that (1) Charles pay $18,000 per month for Evelyn's care, and (2) that Charles pay arrearages in the amount of $57,813.05.

Proceeding concurrently with the dissolution action was a conservatorship case in the probate court regarding Evelyn.*fn4 At some point no later than June 2006, the probate court appointed a conservator for Evelyn.*fn5 In June 2007, the probate court found that Evelyn was no longer competent to be in an attorney-client relationship and appointed a guardian ad litem for her. Kriebel was appointed as a successor conservator of Evelyn's estate in April 2008, and the probate court specified that Kriebel "shall have standing to litigate the Family Court matters on behalf of the conservatee."*fn6

In December 2008, Kriebel, on Evelyn's behalf, filed an application in the dissolution proceeding requesting that the dissolution proceeding -- which had been pending since 2005 -- be given "priority for a trial date" and that the parties be ordered "to comply with all statutes and local rules regarding the exchange of Final Declarations of Disclosure and all other exchanges required in advance of trial." Charles opposed the application, stating: "[Charles] has been supporting all of [Evelyn's] needs for many months. [Evelyn] has been moved to a new residential care facility and is doing much better. She is regaining a significant amount of competency. She now states she does not want to be divorced from [Charles]. [¶] . . . [¶] [Evelyn's] attorney has had this case for many months and has only recently filed any documents and now wishes to rush the matter for no apparent reason."

On February 20, 2009, Charles -- who had been represented by counsel in the dissolution proceeding -- filed a substitution of counsel form, indicating that he would represent himself. Next, on March 2, 2009, Charles filed a motion to dismiss the dissolution proceeding on the ground that he and Evelyn had reconciled. Several declarations submitted by Charles in support of his motion are relevant here.

First, Charles's own declaration stated that he had been prevented by Evelyn's conservators and attorneys from having contact with Evelyn, but that in December 2008, he was able to visit with her at her care facility for the first time since 2005. According to Charles (who now lives in Las Vegas), he spent four days with Evelyn, who immediately recognized him as her husband and showed affection toward him, e.g., insisting on continually holding his hand, stroking his face and saying she loved him. As described in Charles's declaration, he was told by Evelyn's caregivers after he returned home that Evelyn continually asked for him. Charles described that he returned to spend another four days with Evelyn on January 15, 2009, and when Evelyn saw him, her eyes lit up, she grabbed and held his hand, started to cry and said that she loved him. Charles stated that although he was "in no way attempting to proclaim to the Court that Evelyn is competent by any means," he observed that "Evelyn knows she is married and that I am her husband"; that Evelyn still loves him; and that Evelyn is happy during their visits together. He stated that "whether or not Evelyn understands the concept of divorce or not, she does understand the concept of me being her husband" and "understands the concept of love and the concept of being alone."

The second declaration was from a longtime friend of Charles and Evelyn who visited Evelyn in her care facility in January 2009 while Charles was also there. According to the friend's observations, Evelyn "knew [Charles] to be her husband and she displayed nothing short of love and affection for ...


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