Appointment of Limited Guardian Upheld in Divorce Proceedings
In the Matter of A.H., Docket No. A-2782-21 (N.J. Super. App. Div. Nov. 28, 2023)
This case addressed an array of issues involving guardianships and divorce.
A.H. and T.H. were married in New Jersey in 1987. A.H. originally filed a complaint for divorce in 2012 but that was dismissed by a consent order in 2017.
A.H. and T.H. had dual citizenship in the United States and Cyprus. T.H. filed for divorce in Cyprus, where a divorce decree was entered in 2018; that Cyprus divorce decree did not address support issues or the distribution of assets.
T.H. filed a request to register the foreign judgment in New Jersey. A.H. objected. Accordingly, T.H. and A.H. remained legally married in New Jersey.
In September 2018, A.H. filed a new complaint for divorce in New Jersey. Those proceedings stalled when concerns arose regarding A.H.’s capacity.
The Family Part appointed an attorney as guardian ad litem (“GAL”) for A.H. “to serve as an independent investigator, fact finder and evaluator to report back to the [c]ourt as to whether [A.H.] lacks sufficient mental capacity needed to conduct the litigation.” Id. at *3. The judge also ordered A.H. to undergo a mental evaluation.
The GAL recommended the filing of a guardianship, and the Family Part judge issued an order directing the filing that application. The GAL filed that action in the Chancery Division.
The Chancery Division judge also appointed an attorney as designated trial counsel for A.H.
The guardianship hearing spanned three non-consecutive days between October 2021 and February 2022. The court heard testimony from the T.H., A.H., competing experts, and others.
A.H.’s counsel requested A.H. be permitted to participate virtually in the competency hearing due to anxiety, the need for medication, and various other challenges. The judge denied that request.
T.H. testified regarding his observations of A.H.’s mental health over the course of their marriage. He detailed issues that arose during the divorce litigation.
On March 31, 2022, the Chancery Division judge issued a judgment of limited incapacity and appointed a lawyer to serve as limited guardian to act on A.H.’s behalf in the divorce action. The judge explained that the stress of the proceedings resulted in A.H. not being capable of making rational decisions to protect her interests and that she was incapacitated when dealing with the divorce proceedings. The judge further cited the long-pending divorce litigation, which was the subject of more than fifty orders. The judge found A.H.’s actions had stymied those proceedings, and that A.H. had a long history of mental health treatment and medications.
The trial judge also made credibility findings as to the experts and other witnesses. As to the testimony of A.H.:
The judge determined A.H. was the most important witness. The judge observed her throughout her testimony and reviewed evidence of A.H. being physically incapable of proceeding with hearings and the matrimonial litigation. The judge acknowledged A.H. appeared to be in control of herself in the courtroom.
He did not observe A.H. shaking uncontrollably or in any inappropriate manner. The judge further noted that A.H. performed well while testifying on direct examination.
The judge described a change in A.H.’s behavior during her cross-examination. The judge found that when cross-examination touched on a sensitive topic, A.H. was not completely in control of her response or reactions to questions. The judge further found that her thought process was not rational, that she became increasingly disturbed over the course of cross-examination and lashed out with inappropriate and defensive responses.
Id. at *9.
A.H. appealed.
The Appellate Division summarized and reviewed the standards for guardianship actions, explaining that the legal authority to appoint a guardian for an incapacitated person stems from the inherent equitable authority of the sovereign to protect those persons within the state who cannot protect themselves because of legal disability. In re Grady, 85 N.J. 235, 259 (1981); In re Conroy, 98 N.J. 321, 36465 (1985).
In addition, a judicial determination of mental incapacity must precede the appointment of a guardian. S.T. v. 1515 Broad St., LLC, 241 N.J. 257, 277 (2020). R. 4:26-2(b) “sets forth the initial procedure that follows when a person is alleged to be mentally incapacitated.” Id. “The court may appoint a guardian ad litem for . . [an] alleged or adjudicated incapacitated person on its own motion,” or the motion of others. R. 4:26-2(b)(4). “The word ‘alleged’ before ‘mentally incapacitated’ is not surplus language but is central to understanding the guardian ad litem’s function at this stage.” S.T., 241 N.J. at 277.
The Appellate Division also explained the differences in the roles of a guardian versus a guardian ad litem, and that in any event the courts must rule on capacity and the appointment of guardians:
“Nothing in our court rules, statutes, or case law suggests that a guardian ad litem appointed to investigate a client’s alleged mental incapacity has the power to make legal decisions for the client before a judicial determination on her mental capacity.” Ibid. “Rigorous procedural safeguards protect the subject of a guardianship hearing because a finding of incapacity results in an individual’s loss of the right of self-determination.” Id. at 280-81. Accordingly, an action for guardianship of an alleged incapacitated individual and the proceedings required for a judgment of incapacity are governed by court rule and statute. R. 4:86-1 to -8; N.J.S.A. 3B:12-24 to -35.
“Unless the alleged incapacitated person requests a jury trial, the court must take ‘testimony in open court’ and ‘determine the issue of incapacity.” S.T., 241 N.J. at 281 (quoting R. 4:86-6(a)). “A finding of incapacity must be made by clear and convincing evidence.” Ibid. “Upon making a finding of incapacity, the court may appoint a general guardian or a limited guardian, depending on whether the individual ‘lacks the capacity to do some, but not all, of the tasks necessary to care for himself.'” Id. at 282 (quoting N.J.S.A. 3B:12-24.1(a) to (b)). ”
A.H. at *16-17.
The appeals court also deferred to the trial judge’s findings as to credibility and concluded as follows:
Based on our review of the record, we are satisfied the procedural steps required by our court rules and statutes were followed in this case. A guardianship complaint was filed with notice to A.H.; the complaint was accompanied by the affidavits of qualified medical professionals; a hearing was convened, testimony was taken; A.H. was represented by independent counsel; the trial court made independent findings of fact applying the clear-and-convincing-evidence standard; and A.H. was adjudicated by the court as incapacitated with respect to the divorce litigation.
Id. at 17.
Lastly, the Appellate Division addressed A.H.’s contention that the trial court erred by failing to allow A.H. to appear virtually in the divorce action:
Rule 4:86-4(b)(iii) provides that counsel for the alleged incapacitated person shall include in their report to the court “any recommendations concerning the suitability of less restrictive alternatives. . . .” A.H. acknowledges that no such recommendation was submitted to the court by A.H.’s competency trial counsel. In these circumstances, we see no abuse of discretion in the judge’s failure to consider whether A.H. would have been competent to participate at a virtual divorce trial.