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                  SPOUSAL SUPPORT IS ENFORCEABLE NOTWITHSTANDING ONE'S CAPACITY!

               I was recently retained in a very interesting case.  The matter posed a unique set of facts and legal issues.  Can the daughter of a party, who lacks capacity, enforce a spousal support obligation on behalf of said party?  Given the ruling by the trial court yesterday, the answer is YES!

                                                                 THE LAW!

               Although, in general, the only persons permitted to be parties to a proceeding for dissolution or legal separation are the husband and wife (Cal. Rules of Court, rule 1211(a).), the California Code of Civil Procedure provides an exception for a party lacking capacity.  Said representation is usually permissible by and through a guardian or a conservator of the spouse. Code of Civil Procedure § 372.

               An "incompetent person" includes “‘a person for whom a conservator may be appointed.”  Id.  In re Marriage of Higgason (overruled on other grounds by In re Marriage of Dawley (1976) 17 Cal.3d 342, 352) held a petition for dissolution of marriage may be brought on behalf of a spouse, who is under conservatorship, by and through the spouse's guardian ad litem. (10 Cal.3d at p. 483.)  The wife in Higgason, was 73 years old and the husband was 48. Upon her own petition, the wife been adjudicated an incompetent person two weeks after their marriage and a conservator, a commercial bank, had been appointed. Id.  California Probate Code § 2462, provides in pertinent part as follows,



               “…unless another person is appointed for that purpose, the guardian or conservator
               may:

a. Commence and maintain actions and proceedings for the benefit of the ward or conservatee or the estate.

b. Defend actions and proceedings against the ward or conservatee, the guardian or conservator, or the estate.”
                                      FACTS IN MY CASE
In my case, after being ordered to pay spousal support nearly 40 years ago, Husband fled the State.  Wife lost all contact with him and was eventually unable to enforce the prior support order.  For all purposes, she essentially gave up!
About two months, Wife’s daughter (my client), saw a photograph of the Husband in the local newspaper.  The picture was accompanied by an article citing Husband’s generosity in donating thousands of dollars to charity.  Needless to say, my client was shocked and soon thereafter contacted my office.  After investigating the situation, we realized that Wife lacked capacity to pursue enforcement herself thus a conservatorship was needed.   Therefore, we filed both a request for appointment of conservator and a post judgment RFO for the determination of spousal supports arrears. 
                                                  RULINGS IN MY CASE
            The conservatorship was granted last month.  Yesterday, the court granted our RFO and ruled in our favor.  The following orders were rendered:
“The court finds and determines that, as of April 14, 2016, Petitioner owes
Respondent spousal support arrears in the total amount of $389,371.00.  Petitioner is ordered to pay Respondent said arrears within thirty (30) days of service of this order. 
If the above determined arrears of $389,371.00 are not paid in full within thirty
(30) days of service of this order, the Court further orders that Respondent, and or her conservator **********, may seize and or sell Petitioner’s property, including the real property located at  ****************************, to satisfy said arrears order.
The above order included nearly $200,000.00 in interest!
Moral of the story, don’t ignore or more importantly, don’t give up on past support obligations!




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