Appellant, Carol J. Broach, suffered a stroke in 2005. After she suffered this stroker her son, William S. Broach, was appointed as her guardian. As a result of the stroke appellant was left mentally incompetent. She is unable to testify intelligently or express her wishes. Acting in his capacity as guardian, William S. Broach filed a complaint for divorce on his mother’s behalf in January 2006. Broach v. Broach, 2008 WL 3582809 (Ohio App. 2 Dist).
The Trial court held a competency hearing and found the appellant “is unable to form the requisite intent to maintain a divorce action.” Id. The trial court rejected the argument that the guardian could continue the action on his mother’s behalf. The trial court then dismissed the complaint due to the Appellant’s incompetency.
The only contest issue on appeal was that the trial court erred in ruling the guardian could not bring this action on her behalf. In support of her argument appellant cited State ex rel. Broer v. Alexander (1963), 175 Ohio St. 24, 23 O.O.2d 298, 190 N.E.2d 923, and Heskett v. Heskett (Nov 25, 1991), Champaign App. N. 91-CA-05, 1991 WL 256136. In Broer, the court held that “[t]he appointment of a guardian for a mentally incompetent person will not abate a divorce action instituted prior to the incompetency.” Broer, at paragraph one of the syllabus. In Heskett, the court that decided this case addressed a similar situation involving a party who was competent when he filed for divorce but who became incompetent while the action was pending. The court cited Broer and held that a guardian could continue that action on behalf of the incompetent party.
The trial court had found this case distinguishable from those cases in the fact that in those situations the parties were all competent at the time of the filing for divorce. Here the wife was incompetent.
The husband in the case pointed to the Ohio case of Shenk v. Shenk, 100 Ohio App. 32, 59. Which state: “a valid petition for divorce cannot be filed for an insane or incompetent plaintiff by a next friend or guardianship, for in such instance the will and decision exercised would be that of the next friend or guardian and not that of the real party in interest. The trial court was concerned that by allowed a guardian to be able to file for divorce it would tamper with the personal nature of a marriage. The trial court said “[i]t is not possible to determine the will of an insane person in so personal a relationship as marriage.”
The Appellate court avoided this tricky issued in a procedural way. The cases cited by appellee were all before the adoption of the 1970 Ohio Rules of Civil Procedure. The court made its ruling by using these rules, they said:
“In resolving the issue before us, we look first to Civ.R. 17(B), which states that a guardianship “may sue or defend” on behalf of an incompetent. In turn, Civ.R. 75(A) specifically provides that “[t]he rules of Civil Procedures shall apply in actions for divorce, annulment, legal separation, and related proceedings, with the modifications or exceptions set forth in this rule. “The parties have not cited, and we have not found, any Ohio case law discussing the impact of these rules on a guardian’s ability to file for divorce on behalf of an incompetent ward. But reading Civ.R. 17(B) and 75(A) together leads to the logical conclusion that William S. Broach, in his capacity as guardian, may sue for divorce on behalf of his incompetent mother unless some exception in Civ.R. 75 applies. Having examined the rule, we find no exception that would preclude Civ.R. 17(B) from applying in an action fro divorce pursuant to Civ.R. 75(A). Therefore, the appellant’s guardian was entitled to file a divorce action on her behalf.