Samis v. Samis, 2011 VT 21
This seems straightforward. Husband appeals a divorce decree giving his wife their
house, $250,000 in support, $20,000 in attorney’s fees, and $20,000 in past-due maintenance. Nothing out of the ordinary until we look closer at the facts. Vermont
In this case, Husband and Wife are in their eighties. This was a second marriage for both of them. Husband, who is Canadian, always lived in
Montreal, and Wife, who is American, has always lived in . Oh, and Wife is suffering from dementia, and this divorce proceeding was brought and prosecuted on her behalf by the son from her first marriage who was also her guardian. Vermont
On appeal, the big issue for the SCOV is whether a guardian can bring and maintain a divorce action on behalf of a ward. The answer lies with the unique nature of marriage. Marriage, notes the SCOV, citing to its landmark decision in Baker v. State, is more than just a contract or a legal right to be casually asserted or defended. Marriage is a personal decision and a “vital personal right.” Therefore, entering and exiting a marriage is a personal decision that the primary parties are best equipped to decide.
The problem here, as the Son, would no doubt frame it, is that Husband has effectively withdrawn from the marriage, and Wife is incapable of leaving. If she had her senses about her, she would leave the man and demand the return of the possessions that husband has moved to
Unfortunately, for the Son, the power of a guardian does not include the power to initiate a divorce. The SCOV notes that the majority of jurisdictions restrict guardians from such powers and the vast majority of states that allow it, do so because the legislature has changed the law to specifically allow it. Since
has not opted for such a power, it cannot be read into the statute because of the consensus that such powers lie beyond the basic scope of a guardian’s powers and can only come into the guardian’s ambit through specific legislative delegation. Vermont
This makes sense. A guardian is a proxy for the ward, but a guardian is not a second-guesser or a life-coach. While it is sensible for a guardian to have the power to manage a ward’s assets, rights, and physical well-being, it is another thing altogether to allow a guardian to alter and modify the deeper life commitments and circumstances that the ward chose prior to his or her incapacitation. While the facts of this case make a change tempting, the SCOV shows restrains from making such a shift. But the legislature may want to visit this issue, which will, given the graying demographics of
, play out again and again. Vermont
In the end, the SCOV unanimously dismisses the divorce for lack of standing by the Son as Guardian. Mom must remain married; Son must work things out with Husband; and everyone will have to continue what promises to be the awkward court-ordered continuation of a marriage outside a Cameron Diaz movie.