Tuesday, March 1, 2011

Oedipus Wrecks (AKA the Brady Bunch Breakup)

Samis v. Samis, 2011 VT 21

This seems straightforward.  Husband appeals a divorce decree giving his wife their Vermont 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. 

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 Vermont.  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. 

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 The problem here, as the Son, would no doubt frame it, is that Husband has effectively withdrawn from the marriage, and Wife is incapable of leaving.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 Canada.  The last point highlights what may really be at stake in this case.  Husband is consolidating the assets, and Son, who has no biological connections, is panicked that Mother’s legacy is being strip-mined. 

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 Vermont 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.

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 Vermont, play out again and again.   

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.  

1 comment:

  1. There has been in Re-argument filed with the Vt Supreme Court regarding this ruling. Not only does this ruling strip anyone in Vermont under guardianship of equal rights under the law (14 ammendment) but it leaves Mrs Samis with out any source of income. Here a guardian is not "life coach" but one who seeks to protect the ward. Altho' the Vt Supreme Ct was also appealed in this case in 2007 (which you will read in their Feb 18th ruling) however they denied the appeal at that time - allowing the case to go another another 4 years before revisiting this issue of law and changing their minds. The Samis's were divorced in May of 2009. Ms Samis is now on Medicaid as her husband had refused to pay any support ordered by the court in the divorce settlement agreement. After abandoning his wife only 4 months after her diagnosis with Alzheimer's disease, the wife's family has not been able to effect enforcement of the Vt Family courts settlement as Mr Samis moved to Toronto and enforcememnt over the border is a very lengthy process. This ruling not only strips Ms Samis of her rights - she will be dropped from Medicaid as she is now remarried and her husband has assets (even though he has refused to pay any spousal support whether married or divorced) Further, Vermont has also allowed guardians to file for divorce and has granted these in recent past. These cases are part of the Re-argument in front of the Vt Supreme Ct, Will these couple be "remarried" after years of divorce as well? A spouse can now beat his partner senseless in Vt and never worry about being divorced or not having the spouses assets at their disposal? So much for Vt being a progressive state!