California Court of Appeals, Fourth District, Third Division
In re Marriage of JOANN and LYLE B. GREENWAY. JOANN GREENWAY, Appellant,
LYLE B. GREENWAY, Respondent.
Order 6/26/13 (see end of opn.)
Appeal from an order of the Superior Court of Orange County, No. 10D005024 Thomas R. Murphy, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Law Offices of William J. Kopeny and William J. Kopeny for Appellant.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller for Respondent.
O’LEARY, P. J.
After 48 years of marriage, Lyle B. Greenway (Lyle) sought legal separation from Joann Greenway (Joann). At first, Joann filed a response also seeking legal separation, but later she objected to ending the marriage or dividing the estate valued at several million dollars. She asserted Lyle was mentally incompetent and their son, Kurt Greenway (Kurt) was controlling the situation. The parties agreed to have the matter heard by retired judge Thomas R. Murphy on the sole issue of whether Lyle was capable of making a reasoned decision regarding his marital status. The trial court reviewed written arguments and heard testimony from Lyle, Joann, their three adult children, Lyle’s elder law attorney, the family accountant, and four health care professionals who had evaluated and assessed Lyle’s mental state. The court determined Lyle was mentally capable of making a reasoned decision to end his marriage. The court granted Lyle’s request for status-only dissolution of his marriage to Joann.
On appeal, Joann asserts: (1) the record does not contain sufficient evidence that irreconcilable differences resulted in an irremediable breakdown of the marriage; (2) there was insufficient evidence Lyle had the capacity to understand the meaning of the concepts critical to the dissolution of a marriage; and (3) the court’s conclusions regarding Lyle’s dementia are not supported by substantial evidence. We conclude Joann’s arguments lack merit, and we affirm the court’s ruling.
Lyle and Joann were married on August 19, 1961. They have three adult children, Nick Greenway (Nick), Kurt Greenway (Kurt), and Lyle Greenway, Jr., (hereafter referred to by his nickname “Guy” to avoid confusion).
On May 28, 2010, Lyle, a 76-year-old retired dentist filed a petition for legal separation, declaring under penalty of perjury his request was based on irreconcilable differences. He was represented by counsel.
Joann, 72-years-old, was served with the summons and petition on June 2, 2010. After Lyle granted her an extension, on July 15, 2010, Joann (representing herself) filed a response also requesting legal separation based on irreconcilable differences. She confirmed the date of separation was May 27, 2010.
The following month, Lyle requested trial preference on the basis of his age and failing health. He filed a declaration stating he moved out of the family residence in 2009, and was living alone in the Newport Beach Plaza Retirement Community (Newport Beach Plaza). On July 2, 2010, he was hospitalized due to a knee infection that required surgery. Lyle stated he was currently recovering in a skilled nursing facility. Lyle stated his recovery had been hampered because his immune system was weakened by the chemotherapy treatments he received to treat lymphoma. Lyle noted Joann was taking too long to complete the paperwork and needed to move forward with the case. She was given an extension to file her response, and she had not yet completed a preliminary declaration of disclosure.
Lyle declared, “I would like my legal separation case over as quickly as possible because I fear that due to my failing health, I may not make it much longer, or that something will happen to me which prevents me from fully participating in these proceedings. [Joann] has tried to control my health care decisions since I was admitted to the hospital... despite the fact that she does not have the ability to do so. I have an advanced health care directive [in place since November 20, 2009] as I do not want [Joann] trying to control my health situations.... I believe that [Joann] will assert herself in any manner possible in this litigation that is to my detriment. [She] has a way of trying to control every situation I am in and I fear that I may not be able to protect myself in these proceedings should something else happen to my health. I have a substantial interest in my legal separation case and want to protect myself by making sure I can actively participate in my case.”
In September 2010, Joann (now represented by counsel), filed an amended response claiming the parties were not separated and objecting to legal separation or dissolution of the marriage. She also opposed the motion for trial preference. She alleged Lyle was not seeking legal separation or trial preference “knowingly or of his own volition.” She stated, “I believe the foregoing actions were conceived and orchestrated by our son Kurt, who manipulated [Lyle] into filing this action... against his will.” She requested the court essentially stay the proceedings until Lyle has undergone “a formal neurological/psychological examination” to determine if Lyle’s legal separation request [was] voluntary.
Joann provided the following evidence to support her claim. First, she asserted Lyle suffered from “cognitive impairment and short term memory loss.” She stated that in July 2010, Andrew Oscar Schreiber, a neurologist, neurosurgeon, and friend of the family informally examined Lyle and believed his short term memory loss may be the result of “metabolic insults” or “hydrocephalus.” Joann speculated Lyle’s condition provided Kurt and the family’s accountant for the past 20 years, Thomas G. Donovan, “the opportunity” to secure powers of attorney.
Joann said she was not aware that in November 2009, Donovan was granted power of attorney over Lyle’s financial affairs and Kurt was granted power of attorney over health care decisions. These documents were prepared and supervised by attorney Donna R. Bashaw, a certified elder law attorney. Joann believed Kurt’s motivation was to take control of the family’s assets. She added that Kurt was upset with her because she would not let him purchase Lyle’s dental practice. She explained Kurt, also a dentist, offered to pay $400, 000 for the practice but because she did not think he would be able to secure financing, she and Lyle sold it for $520, 000 to a third party. Joann said it was highly suspicious this transaction occurred just six weeks before Kurt and Donovan secured their respective powers of attorney over Lyle’s affairs.
Finally, Joann stated the motion for preference should not be granted because Lyle failed to provide the court with proof about his medical condition. She stated his knee surgery does not “rise to the level of a medical condition that would necessitate an advanced trial date.” Joann submitted an e-mail written by Lyle’s counsel to establish his condition was not as bad as Lyle claimed. Counsel wrote Lyle was “in excellent shape” on one day (August 26, 2010). Joann concluded her declaration by stating she did not want her marriage to end and she wanted to continue to visit and care for Lyle on a daily basis: “I want to continue our relationship for as long as we both shall live.” She stated an advanced trial date would deprive her of her due process rights to discovery, would preclude a neurological examination of Lyle, and would make things difficult because the marital estate was valued “at several million dollars.” She explained, “An estate of this size and complexity cannot be divided overnight without adequate accounting, depositions and other discovery.”
Lyle filed a reply declaration pointing out Joann’s declaration was full of contradictions, i.e., Lyle is so weak he is being controlled by his son, yet he is not sick enough to qualify for trial preference. Lyle declared his health continued to deteriorate, and he was recently re-hospitalized for another infection. Lyle stated he was fully aware when he signed the petition requesting legal separation. Lyle stated he still wanted a legal separation and to manage his own financial affairs apart from Joann. He denied being manipulated by Kurt and noted Kurt had tried to get him to change his mind and dismiss the legal separation. Lyle declared, “Although I have expressed to [Joann] that I want a separation, she simply refuses to accept my decision. Interesting that [she] says she loves me, yet she continually interferes with my healthcare decisions.” He offered two examples. First, Joann refused to transfer him to a facility he preferred because it was closer to the family. Second, she tried to cancel his contract with an assisted living nursing residence. He also clarified Schreiber was simply a family friend who visited and offered the services of other specialists, but Lyle declined the offer.
Lyle stated Joann rarely visited him in the hospital, but after filing his legal separation petition, she tried to see him more often “even though [he did] not want to see her. The first time [she] showed any genuine concern for [his] healthcare was after [he] filed the petition.... [His] relationship with [Joann] has been very contentious for the last 30 years, not just recently.” Lyle explained Kurt did not cause him to file for legal separation, but he asked Kurt to help him and support his decision.
As for the sale of the dental practice, Lyle stated Joann did not consult him before moving forward with the sale and he had hoped to keep the practice in the family. He was upset by her actions, but it was not the reason he was seeking legal separation. He explained the durable powers of attorney were not prepared in response to the sale but because Joann was trying to move him out of a care facility against his will. Lyle believed Joann wanted him to move to a less expensive facility. He stated, “Selling the practice was just another red flag that [Joann] would continue to act against [his] wishes.”
Joann filed a sur-reply. She reiterated Lyle’s death is not imminent and therefore trial preference was not necessary. She denied not caring for Lyle’s health or interfering with his healthcare decisions, and she described some of the care she had provided to him. She reasserted Lyle’s actions and declarations were being controlled by Kurt. She provided a lot of details about the sale of the dental practice, believing it was the reason Lyle wanted the separation.
On September 17, 2010, Judge David L. Belz granted the motion for preference and ordered Joann to complete her preliminary declaration and disclosure. The trial court permitted Joann to proceed with a neuropsychological examination of Lyle. It set a mandatory settlement conference for mid-December and scheduled trial for January 11, 2011.
Thereafter, the parties stipulated to have the matter heard by retired Judge Thomas R. Murphy at JAMS. The parties submitted written trial briefs, and Judge Murphy arranged to have the hearing on June 24, 2011, at Lyle’s assisted living facility, the JAMS offices in Orange, and Joann’s counsel’s law offices in Newport Beach.
Judge Murphy prepared a detailed statement of decision, which we will incorporate in large part by reference, because it highlights the factual basis for the court’s ruling. The statement of decision began with a history of the case, as we have already described above. The only additional fact included was Lyle currently resided in an assisted living facility where caretakers help him 24 hours a day. Judge Murphy explained the parties stipulated Lyle’s pleadings could be deemed to have been amended to request a dissolution of the marriage if the court found Lyle was mentally capable of requesting the dissolution. The judge framed the issue to be decided as follows: “Is Lyle... capable of making a reasoned decision of consequence; is his request to dissolve his marriage to Joann a reasoned decision?”
The court stated it had examined the testimony of several witnesses. In the statement of decision, the court began by recounting parts of Lyle’s trial testimony as follows: “‘He wanted to make his own decision.’ [¶] ‘He wanted to continue living in the [a]ssisted [l]iving [f]acility.’ [¶] ‘He did not want to go home and live with Joann.’ [¶] ‘He does not get along with Joann.’ [¶] ‘He does not particularly like it when Joann visits him at the facility.’ [¶] ‘He does not think his relationship with Joann could ever be restored.’ [¶] ‘He thought he would be angry at Joann for one reason or another no matter what we do.’ [¶] ‘He enjoys visits with his sons Kurt and Guy, and... Donovan, his CPA.’ [¶] “‘He does not enjoy visits with his son Nick because of the latter’s comments that the “Father is wrong” and “under Catholicism you’re married forever.”’” [¶] ‘He trusts... Donovan... his former CPA and his current agent/attorney-in-fact [regarding] financial matters.’ [Exhibit 16.] [¶] Lyle was asked if he knew the difference between a guess and an estimate. His response was, ‘An estimate has got fact; a guess doesn’t.’ [¶] He was also asked the following questions and gave the following answers:
‘Q. Do you want to be divorced from Joann?
‘Q. Do you understand that a divorce will end your marriage to Joann?
‘Q. Do you and Joann have major differences between you that have ...