Madonna M. Flory v. Rand E. Flory , 2023 WY 29 ( 2023 )

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 29APRIL TERM, A.D. 2023
April 10, 2023
MADONNA M. FLORY,
Appellant
(Plaintiff),
v. S-22-0164
RAND E. FLORY,
Appellee
(Defendant).
W.R.A.P. 11 Certification
Certified Question from the District Court of Park County
The Honorable Bill Simpson, District Judge
Representing Appellant:
Jennifer-Ann Seeger Jensen of Burg Simpson Eldredge Hersh and Jardine, P.C.,
Cody, Wyoming.
Representing Appellee:
No appearance.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
KAUTZ, J., delivers the opinion of the Court; FENN, J., files a dissenting opinion, in
which FOX, C.J., joins.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.
[¶1] We accepted certification of a question from the Fifth Judicial District Court in Park
County, Wyoming, regarding the authority of a court-appointed guardian and conservator
of an incompetent adult ward to petition the district court for the ward’s divorce. We
conclude neither a guardian nor a conservator has the power under Wyoming law to pursue
a divorce on behalf of a ward.
CERTIFIED QUESTION
[¶2] We agreed to answer the following question: “In the State of Wyoming, may a
Guardian/Conservator move for and prosecute a divorce action on behalf of the Ward?”
FACTS
[¶3] The parties stipulated to all relevant facts. Madonna M. Flory and Rand E. Flory
married in 1975. Ms. Flory has Alzheimer’s dementia and lives in Casper, Wyoming, with
the parties’ son, Lucas Flory (Lucas). Mr. Flory continues to live in the marital home in
Cody, Wyoming. Ms. Flory’s physician determined in August 2021 she was incapable of
making medical or life decisions for herself. In March 2022, the court in a separate probate
action appointed Lucas (Guardian/Conservator) as guardian of Ms. Flory’s person and
conservator of her estate.
[¶4] Approximately one month after he was appointed, Guardian/Conservator filed a
complaint in the district court for Ms. Flory’s divorce from Mr. Flory. Mr. Flory responded
to the complaint and raised “the affirmative defense” that Guardian/Conservator was not
authorized to file for divorce on behalf of Ms. Flory. The parties agreed that the answer to
the question of whether a guardian or conservator could file for divorce on behalf of a ward
may be determinative of the divorce action and there was no controlling Wyoming
precedent on the issue.1 See Wyoming Rule of Appellate Procedure (W.R.A.P.) 11.01
(“The supreme court may answer questions of law certified to it by . . . a state district court
. . . if there is involved in any proceeding before the certifying court . . . a question of law
which may be determinative of the cause then pending in the certifying court . . . and
concerning which it appears there is no controlling precedent in the decisions of the
supreme court.”). The district court granted the parties’ stipulated motion to certify the
question to this Court under W.R.A.P. 11.01 through 11.04.
1
In Matter of Guardianship of McNeel, 2005 WY 36, ¶¶ 3, 6, 10, 34, 109 P.3d 510, 512-13, 519 (Wyo.
2005), the wife claimed the district court erred by allowing the husband’s voluntarily-appointed guardian
and conservator to proceed with a divorce action the husband had filed prior to the appointment. We refused
to consider the issue because the wife did not file a notice of appeal from the divorce decree. Id., ¶¶ 34-35,
109 P.3d at 519.
1
[¶5] This Court agreed to answer the certified question and ordered the parties to brief
the issue. See W.R.A.P. 11.04(b) (“The reviewing court shall accept or reject a certified
question within 30 days of docketing the certification order.”), and W.R.A.P. 11.06
(establishing the procedure for briefing certified questions). Guardian/Conservator filed
an appellate brief, but Mr. Flory did not.
DISCUSSION
A. Traditional Majority Rule
[¶6] The traditional majority rule throughout the United States holds a guardian,
conservator, or other legal representative2 does not have the power to file or maintain an
action for the ward’s divorce unless that power is specifically granted by statute. See, e.g.,
Nelson v. Nelson, 878 P.2d 335, 337-38 (N.M. Ct. App. 1994) (most courts that have
addressed the issue hold that, without specific statutory authority, a guardian may not bring
an action for divorce on behalf of the ward) (citations omitted). Under the traditional rule,
courts do not read statutes granting guardians general powers to act on behalf of the ward
as authorizing divorce actions because the decision to divorce is “too personal and
volitional” to be pursued at the “pleasure or discretion” of a guardian. Brooks by
Elderserve, Inc. v. Hagerty, 614 S.W.3d 903, 910, 914 (Ky. 2021) (discussing and partially
overruling Johnson v. Johnson, 170 S.W.2d 889 (Ky. 1943)).
[¶7] The Vermont Supreme Court explained:
[T]he right to end a marriage through divorce is volitional and
personal such that the [l]egislature did not intend, through a
general grant of authority, to permit it to be carried out by a
guardian. If we were to imply this power, we would
encroach on an area that the [l]egislature has seen fit to
address by statute, and without any airing of the multiple
issues of public policy that might be relevant to the
question.
Samis v. Samis, 22 A.3d 444, 450 (Vt. 2011) (emphasis added). See also, Murray v.
Murray, 426 S.E.2d 781, 783-84 (S.C. 1993) (the theory behind the traditional majority
view is that divorce is so personal and volitional a guardian may not bring the action
without specific statutory authorization).
2
The statutory definitions and powers of guardians, conservators, and other legal representatives vary from
state to state. When necessary to our discussion, we will describe the applicable statutes. Otherwise, we
are simply referring to general rules pertaining to the representation of a legally incompetent person and
her estate.
2
[¶8] The traditional rule recognizes that “aggrieved spouses may elect to remain in
marriages that seem to be against their best interests for personal, religious, moral, or
economic reasons.” Nelson, 878 P.2d at 338 (citations omitted).
“The basis for [the rule that a guardian, conservator, or other
legal representative cannot sue for the ward’s divorce] appears
to be the belief that there are no marital offenses which of
themselves work a dissolution of the marital relation, and the
right of the injured party to regard the bond of marriage as
indissoluble because of religious affiliation or for other reasons
is considered so strictly personal that such relation should not
be dissolved except with the personal consent of the injured
spouse, which cannot be given where he or she is insane.”
J.A. Connelly, Annotation, Power of Incompetent Spouse’s Guardian, Committee, or Next
Friend to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make
a Compromise or Settlement in Such Suit, 6 A.L.R.3d 681 § 2 (1966). See also, Brooks,
614 S.W.3d at 910 (because the decision to divorce requires a personal choice by a spouse,
the traditional rule prohibits a guardian from exercising the right on behalf of the ward
unless specific legislative declaration confers the right) (citation and quotation marks
omitted).
B. Minority Rule/Modern Trend
[¶9] Jurisdictions allowing a guardian, conservator, or other legal representative to bring
or maintain a suit for divorce have historically been in the minority. Nelson, 878 P.2d at
338; Connelly, supra, at § 2. “[M]ost minority-rule courts construe existing statutes
authorizing the guardian to pursue and defend civil claims in the interests of the[] ward to
include authority to bring an action for divorce.” Nelson, 878 P.2d at 338 (citations
omitted). See also, Connelly, supra, at § 2 (the minority view is that a guardian “may bring
a divorce action on behalf of the incompetent spouse”). In Ruvalcaba ex rel. Stubblefield
v. Ruvalcaba, 850 P.2d 674, 681 (Ariz. Ct. App. 1993), the Arizona court noted that more
recent decisions seem to trend toward allowing “a guardian to maintain an action for
dissolution of marriage on behalf of an incompetent adult ward.” Some courts have implied
such authority from statutes giving a guardian power to commence “any” suit on behalf of
a ward or to act on behalf of a ward as a parent can for his child. See, e.g., In re Marriage
of Gannon, 702 P.2d 465, 467 (Wash. 1985) (en banc) (a Washington statute authorizing
“a guardian to commence and prosecute any suit on behalf of the incompetent,” together
with other powers of the guardian, implied the right to pursue a divorce for the ward)
(emphasis in original); Nelson, 878 P.2d at 339-40 (a guardian has the broad “rights,
powers, and duties respecting the ward as a parent has respecting a child,” which may
include the right to obtain a divorce); Ruvalcaba, 850 P.2d at 678-81 (the legislature’s
general grant of authority to the guardian of an incompetent adult to act as a parent can
3
with a child, together with other general guardianship powers, authorized commencement
of divorce proceedings). But see, In re Marriage of Denowh, 78 P.3d 63, 65 (Mont. 2003)
(statute which gave the guardian of an incapacitated person “the same powers, rights, and
duties respecting his ward that a parent has respecting his unemancipated minor child” did
not authorize divorce because, “[b]y definition,” an unemancipated child is unmarried).
[¶10] Some minority view courts have also relied on the expansion of guardianship
powers to make other highly personal decisions, such as giving or withholding lifesaving
medical treatment or involuntary sterilization, and the prevalence of more modern divorce
laws which do not require proof of fault or injury to authorize guardian-initiated divorce
actions. See Karbin v. Karbin, 977 N.E.2d 154, 162 (Ill. 2012) (“With the concept of
‘injury’ removed from divorce in Illinois, it is difficult for us to accept the view that the
decision to divorce is qualitatively different from any other deeply personal decision, such
as the decision to refuse life-support treatment or the decision to undergo involuntary
sterilization.”); Nelson, 878 P.2d at 340 (Because a guardian is empowered to make
important life decisions for his ward and fault is not required for divorce, “it would be
anomalous for us to hold that a guardian in New Mexico did not have the authority to file
for divorce in light of the statutory provisions governing both guardianships and
divorces.”); Ruvalcaba, 850 P.2d at 681 (“[I]n this day and age, when guardians are
permitted to refuse medical care on behalf of their incompetent wards—surely a decision
that is extremely ‘personal’ to that individual—prohibiting that same guardian from
maintaining an action for [divorce] on behalf of the ward cannot be justified.” (citing
Gannon, 702 P.2d at 467)).
[¶11] Another reason provided by minority view courts to allow a guardian or conservator
to prosecute a divorce is to protect the ward’s right to access and obtain redress from the
courts. In Luster v. Luster, 17 A.3d 1068, 1079-80 (Conn. App. Ct. 2011), the Connecticut
court explained that an incompetent person retained the right to bring a civil action in court
but could only do so through “a properly appointed representative,” such as a conservator.
A divorce is a civil action and forbidding a conservator from pursuing it would deprive the
ward of access to critical legal remedies. Id. See also, Stubbs v. Ortega, 977 S.W.2d 718,
722 (Tex. Ct. App. 1998) (a guardian can sue for a mentally incompetent ward’s divorce
to protect her rights and privileges guaranteed by the state constitution and laws). In
Karbin, 977 N.E.2d at 163, the Illinois Supreme Court stated that continued application of
the traditional rule prohibiting guardian-initiated divorce actions rendered a married ward
“helpless to change the situation if his or her competent spouse does not want a divorce.
The incompetent, vulnerable spouse is trapped in an unwanted, potentially abusive,
marriage.” See also, Ruvalcaba, 850 P.2d at 681 (it is inequitable to “leave an incompetent
spouse without adequate legal recourse against potential physical, emotional or financial
abuse by the competent spouse”); Nelson, 878 P.2d at 339 (refusing to “establish an
absolute bar to a divorce action which would effectively leave an incompetent spouse at
the mercy of the competent spouse”); In re Salesky, 958 A.2d 948, 955 (N.H. 2008)
(prohibiting a guardian from pursuing a divorce initiated by the ward before he was found
4
incompetent may leave the ward “‘without adequate legal recourse against potential
physical, emotional or financial abuse by the competent spouse’” (quoting Ruvalcaba, 850
P.2d at 681)).
C. Wyoming Law on the Right of a Guardian or Conservator to File for
the Ward’s Divorce
[¶12] The majority and minority rules and legal trends regarding guardian or conservator-
initiated divorces are not especially helpful to our resolution of this case because the
decisions are typically driven by the distinct statutory schemes and public policy concerns
of the individual states. See In re Marriage of Denowh, 78 P.3d at 64-65 (taking its “cue”
from other states’ cases, the Montana Supreme Court examined its “own statutes governing
the guardian/ward relationship” to determine if a guardian could bring a divorce action for
her ward). In Wyoming, the law governing divorce, guardianship, and conservatorship is
strictly statutory. See Weiss v. Weiss, 2009 WY 124, ¶ 13, 217 P.3d 408, 412 (Wyo. 2009)
(“It is well settled that divorce is purely a statutory process, with courts having no authority
in such proceedings other than that provided by statute.”); In re Guardianship of DEP,
2021 WY 122, ¶ 21, 497 P.3d 928, 932 (Wyo. 2021) (“‘Guardianship matters are controlled
and governed exclusively by statute.’”) (quoting Matter of Guardianship of ARB, 2021 WY
102, ¶ 8, 495 P.3d 297, 299 (Wyo. 2021)); Krafczik v. Morris, 2009 WY 53, ¶ 32, 206 P.3d
372, 382 (Wyo. 2009) (“In Wyoming, the duties and powers of a conservator are
established by statute.”). Thus, a guardian or conservator is without power to pursue a
divorce on behalf of his ward unless a statute grants that authority. Weiss, ¶ 13, 217 P.3d
at 412; DEP, ¶ 21, 497 P.3d at 932; Krafczik, ¶ 32, 206 P.3d at 382.
[¶13] The answer to the certified question must be found in the substantive statutes
governing divorce, guardianship, and conservatorship. “Statutory interpretation is a
question of law reviewed de novo.” Ailport v. Ailport, 2022 WY 43, ¶ 22, 507 P.3d 427,
437 (Wyo. 2022) (citing Williams v. Sundstrom, 2016 WY 122, ¶ 19, 385 P.3d 789, 794
(Wyo. 2016)) (other citations omitted). When interpreting statutes, we “‘search for the
legislature’s intent as reflected in the language of the statute.’” EOG Res., Inc. v. JJLM
Land, LLC, 2022 WY 162, ¶ 16, 522 P.3d 605, 610 (Wyo. 2022) (quoting Wyodak Res.
Dev. Corp. v. Wyo. Dep’t of Revenue, 2017 WY 6, ¶ 25, 387 P.3d 725, 732 (Wyo. 2017))
(other citation omitted). “‘If the [statutory language] is sufficiently clear and unambiguous,
[we] simply appl[y] the words according to their ordinary and obvious meaning.’” Dellos
Farms, Inc. v. Sec. State Bank, 2022 WY 107, ¶ 9, 516 P.3d 846, 848 (Wyo. 2022) (quoting
Ailport, ¶ 22, 507 P.3d at 437) (other citation omitted). “‘We give effect to each word,
clause and sentence chosen by the legislature, and construe them in pari materia.’” EOG
Res., ¶ 16, 522 P.3d at 610 (quoting Wyodak, ¶ 26, 387 P.3d at 732).
1. Wyoming Divorce Statutes
5
[¶14] Divorce affects both the person and property of the spouses, which may implicate
aspects of guardianship and conservatorship. See Wyo. Stat. Ann. §§ 3-1-101(a)(v) and 3-
2-201 (LexisNexis 2021) (a “guardian” is a person appointed by the court to control the
care and custody of the ward’s person); § 3-1-101(a)(iii) (a “conservator” is “a person
appointed by the court to have the custody and control of the property of a ward”). Wyo.
Stat. Ann. § 20-2-104 (LexisNexis 2021) states “[a] divorce may be decreed by the district
court . . . on the complaint of the aggrieved party on the grounds of irreconcilable
differences in the marital relationship.” “It matters not which party was at fault in bringing
about the differences which cannot be reconciled. All that is required [for a divorce to be
granted] is that the irreconcilable differences exist.” Grosskopf v. Grosskopf, 677 P.2d
814, 817 (Wyo. 1984).
[¶15] The Guardian/Conservator argues Wyoming is a no-fault divorce state and the
nature of no-fault divorce implies that guardians/conservators should be able to seek
divorce for their wards. We described Wyoming’s approach to fault and divorce in
Grosskopf, supra, and Goswick v. Goswick, 2020 WY 103, 469 P.3d 373 (Wyo. 2020).
Whether Wyoming is a “no-fault” state or not, nothing about the statutory grounds for
divorce in our state suggests that the legislature resolved the multiple issues of public
policy relevant to whether a guardian/conservator may pursue a divorce for the ward.
[¶16] To obtain a divorce, the plaintiff must establish that irreconcilable differences exist
in the marital relationship. Whether the differences between the parties truly are
irreconcilable and of such a nature that the marital relationship must be terminated is
uniquely personal and volitional. The structure of Wyoming’s statutory grounds for
divorce does not support a conclusion that the legislature intended to include filing for a
divorce as part of a guardian’s or conservator’s powers.
[¶17] The dissent points to Wyo. Stat. Ann. § 20-2-108 (LexisNexis 2021) as support for
a guardian/conservator’s authority to file for divorce. This statute simply states an action
for divorce “shall be conducted in the same manner as [a] civil action.” Id. It is a
procedural statute and does not create statutory authority for a guardian or conservator to
file for divorce. Similarly, the dissent cites Wyoming Rule of Civil Procedure 17(c)(1),
which allows a guardian or conservator to “sue or defend” on behalf of the ward. This
procedural rule does not grant any authority to a guardian or conservator to pursue divorce
of the ward. In Wyoming, court rules “do no more than govern procedures in the courts .
. ., while laws conferring substantive rights . . . must come from the legislature.” Nixon v.
State, 2002 WY 118, ¶ 14, 51 P.3d 851, 855 (Wyo. 2002). See also, Samis, 22 A.3d at 448(“Although the rules [the court] create[s] have the force and effect of law, they cannot
create substantive rights not created by the Legislature. . . . [T]he authority for a guardian
to initiate a divorce on behalf of a person under guardianship cannot come solely from a
procedural rule promulgated by this Court.”).
6
[¶18] The dissent also asserts Wyo. Stat. Ann. §§ 20-2-101 and 20-2-105 (LexisNexis
2021) support allowing a guardian or conservator to file for divorce on behalf of a ward.
Section 20-2-101(e) is entirely inapposite. It allows a guardian to sue for annulment of the
ward’s marriage when it was void from its inception due to the ward’s incompetence.
Section 20-2-101(a)(ii), (e). Section 20-2-105(a) authorizes the court to grant a divorce if
either party is “incurably insane” and has been confined to a mental hospital for at least
two years. Under this statute, a guardian is appointed for the insane spouse and the county
attorney must appear and defend the insane person. Section 20-2-105(b)-(c). If a guardian
could sue for the insane person’s divorce under general divorce and guardianship laws, §
20-2-105 with its heightened procedural safeguards would have no purpose. We do not
interpret statutes in a manner which renders them meaningless. See Clark v. State ex rel.,
Dep’t of Workforce Servs., 2016 WY 89, ¶ 14, 378 P.3d 310, 314 (Wyo. 2016).
[¶19] Wyoming’s divorce statutes, on their face, do not establish authority for a guardian
or conservator to file for divorce on behalf of a ward.
2. Wyoming Guardian and Conservator Statutes
[¶20] Under Wyoming law, a “guardian” has control of the care and custody of the ward’s
person. Sections 3-1-101(a)(v), 3-2-201. Section 3-2-201 addresses a guardian’s
responsibilities and powers. As relevant here,
(a) The guardian shall:
(i) Determine and facilitate the least restrictive and most
appropriate and available residence for the ward;
(ii) Facilitate the ward’s education, social and other
activities;
(iii) Subject to the restrictions of W.S. 3-2-202 [listing
certain decisions which require court approval], authorize or
expressly withhold authorization of medical or other
professional care, treatment or advice;
(iv) Take reasonable care of the ward’s personal
property;
(v) Commence protective proceedings if necessary to
protect the property of the ward;
...
7
(ix) Request the court to modify the guardian’s range of
duties if the changed circumstances of the ward require such
modification[.] . . .
(b) The guardian may: . . .
(iii) Institute proceedings to compel the performance by
any person of the duty to support or contribute to the support
of the ward;
...
(vi) Consent to the marriage or adoption of the ward.
Section 3-2-201. Wyo. Stat. Ann. § 3-2-202(a) (LexisNexis 2021) allows a guardian to
take certain actions after obtaining court approval, including committing the ward to a
mental health facility, consenting to medical treatment of the ward with electroshock
therapy, psychosurgery, sterilization, or long-term contraception, or relinquishing the
ward’s minor child for adoption.
[¶21] Wyoming’s guardianship statutes do not expressly grant a guardian the power to file
for divorce on behalf of the ward. Unlike guardianship statutes in some states that have
recognized an implied right for guardians to sue for the ward’s divorce, our statutes do not
contain a general grant of authority to a guardian to pursue any legal action for the ward or
to exercise the same rights parents have for their children. See Nelson, 878 P.2d at 340;
Ruvalcaba, 850 P.2d at 678; Gannon, 702 P.2d at 467.
[¶22] In lieu of including a power to file for divorce, Wyoming statutes provide specific
means for the guardian to access and obtain redress from the courts for threats posed to the
ward by the other spouse. A guardian has the obligation to choose the most appropriate
residence for the ward and facilitate the ward’s education, social, and other activities.
Section 3-2-201(a)(i)-(ii). These provisions give the guardian power to protect the ward
from personal harm by an abusive spouse. Section 3-2-201(a)(v) requires a guardian to
commence legal proceedings to protect the property of the ward. Under this provision, a
guardian could, for example, use Wyoming’s replevin statutes, Wyo. Stat. Ann. §§ 1-15-
301 through 306 (LexisNexis 2021), to recover the ward’s personal property from the other
spouse. Acting under the power in § 3-2-201(b)(iii) to “[i]nstitute proceedings to compel
the performance by any person of the duty to support or contribute to the support of the
ward,” a guardian could file a petition for the ward to obtain support from the other spouse
under Wyo. Stat. Ann. § 20-2-102 (LexisNexis 2021) (allowing a spouse, without
commencing divorce proceedings, to petition the court for an order requiring the other
spouse to support her, provided the couple is living separately and the other spouse “does
not support the [petitioning spouse] . . . within his means”).
8
[¶23] The legislature’s choice to specifically authorize a guardian to file certain types of
suits while omitting any right to bring a divorce action indicates the legislature did not
intend to give a guardian power to sue for his ward’s divorce. “‘[T]he omission of words
from a statute is considered to be an intentional act by the Legislature, and [we] will not
supply words in the process of interpretation.’” City of Torrington v. Cottier, 2006 WY
145, ¶ 12, 145 P.3d 1274, 1279 (Wyo. 2006) (quoting Fullmer v. Wyo. Emp. Sec. Comm’n,
858 P.2d 1122, 1124 (Wyo. 1993)). “This Court is not at liberty to add words to a statute
that the legislature chose to omit.” Wyodak, ¶ 31, 387 P.3d at 733.
[¶24] As in Nelson, Karbin, and Ruvalcaba, the Guardian/Conservator claims the
legislature obviously intended for a guardian to have authority to sue for the ward’s divorce
because it allowed the guardian to interfere in the most intimately personal concerns of the
ward’s life, including by consenting to or withholding medical care or consenting to the
ward’s marriage or adoption. However, this argument runs into the same roadblock
discussed above; by granting a guardian specific powers to interfere in the ward’s personal
life and not including divorce as one of those powers, the legislature expressed its clear
intention to omit the right to sue for the ward’s divorce from the guardian’s arsenal of
powers. See Cottier, ¶ 12, 145 P.3d at 1279; Fullmer, 858 P.2d at 1124.
[¶25] Like the guardianship statutes, the conservatorship statutes do not grant a
conservator the authority to sue for divorce on behalf of the ward. A “conservator” is “a
person appointed by the court to have the custody and control of the property of a ward[.]”
Section 3-1-101(a)(iii). Thus, under the plain statutory definition, a conservator’s authority
is limited to matters involving the ward’s property. Wyo. Stat. Ann. § 3-3-601 (LexisNexis
2021) sets out the conservator’s general duty: “The conservator of the estate shall protect
and preserve it, invest it prudently, account for it as provided in the Wyoming statutes,
expend it for the benefit of the ward and perform all other duties required by law.”
[¶26] In Wyo. Stat. Ann. § 3-3-606(a) (LexisNexis 2021), the legislature delineated
specific powers a conservator may exercise without a court order which include, in
pertinent part:
(ii) Enforce, defend against or prosecute any claim by or
against the ward or the conservator;
(iii) Sue on and defend claims in favor of or against the ward
or the conservator;
...
(viii) Apply the principal, income and profits of the estate of
the ward, to the extent necessary, for the comfortable and
suitable maintenance, education, support and care of the ward
9
in an amount proportionate to the value of his estate or his
condition in life . . . ;
...
(xi) Appear for and represent the ward in all legal proceedings,
unless another person is appointed for that purpose, and
prosecute or defend actions, claims or proceedings in any
jurisdiction for the protection of estate assets and of the
conservator in the performance of his duties;
(xii) Request the court to modify the conservator’s range of
duties if the changed circumstances of the ward require such
modifications.
As relevant here, Wyo. Stat. Ann. § 3-3-607(a) (LexisNexis 2021) states: “Upon order of
the court after hearing and notice as prescribed by the court[,] the conservator may . . . (ii)
[c]ompromise or settle any claim by or against the ward or the conservator . . . ”; or “(iv)
[d]o any other thing that the court determines to be in the best interest of the ward and his
estate[.]”
[¶27] The conservator obviously has expansive statutory power to engage in litigation on
behalf the ward. See §§ 3-3-606(a)(ii), (iii), (xi); 3-3-607(a)(ii). This protects the ward’s
right to access and obtain redress from the courts for threats to the ward’s estate from third
parties or the other spouse. However, the conservator’s litigative powers, when interpreted
in pari materia with the definition of conservator and the duties of the guardian, are limited
to actions, claims, or proceedings related to the ward’s estate. A conservator has no power
regarding the highly personal concerns of the ward in a divorce.
[¶28] In Murray, 426 S.E.2d at 783, the South Carolina Supreme Court reached the same
conclusion under similar conservatorship statutes and circumstances.
The appointment of a conservator vests in him title as trustee
to all property of the protected person. S.C.Code Ann. § 62-5-
420 (1987). A conservator has the power to manage the assets
and funds of the estate. S.C.Code Ann. §§ 62-5-424 and 425
(1987). He may prosecute or defend actions, claims, or
proceedings for the protection of estate assets. S.C.Code Ann.
§ 62-5-424(7) (1987). Therefore, while a conservator can take
action to protect estate assets, there is no statutory authority
allowing him to maintain an action with regard to personal
matters. Accordingly, son cannot bring this action for divorce
in his capacity as conservator.
10
[¶29] Section 3-3-607(a)(iv) arguably contains the broadest statutory power for
conservators. It allows a conservator to, with approval of the court, “[d]o any other thing
that the court determines to be in the best interest of the ward and his estate[.]” Id. Notably,
Guardian/Conservator did not follow the procedure to ask the probate court in the separate
guardianship and conservatorship proceeding for authority to file the divorce for Ms. Flory
because it was in her best interests. To the contrary, he contends he “should be able to
initiate the divorce proceeding without prior approval of the court.” Furthermore, while §
3-3-607(a)(iv) seems to allow a court to approve a conservator’s request for far-reaching
powers to act in the ward’s and her estate’s best interests, the court cannot expand the
conservator’s powers beyond the sphere of the ward’s property to matters involving the
ward’s person. Without a concomitant guardianship power to sue for a ward’s divorce,
which we have already stated does not exist, a conservator cannot use his power to act in
the ward’s best interests in protecting her estate to sue for divorce.
[¶30] The ward is not without legal recourse against her spouse or third parties who
threaten her estate. A court-appointed conservator has custody and control of all the ward’s
real and personal property. Section 3-1-101(a)(iii); Wyo. Stat. Ann. § 3-1-204(a)(i)
(LexisNexis 2021) (the conservator shall “[t]ake possession of all the real and personal
property of the ward”). The conservator may “bring an action to determine title to or to
gain possession of the ward’s property.” Section 3-1-204(b). For example, a conservator
may institute quiet title and ejectment actions against outside parties under Wyo. Stat. Ann.
§§ 1-32-201 to 202 (LexisNexis 2021), to protect the ward’s interests in real property. If
the ward’s spouse unilaterally takes any action which injures the ward’s property interests,
the conservator has the power to commence legal action to protect the ward and her estate.
See § 3-3-606(a)(ii), (iii), (xi) (a conservator has broad powers to litigate property claims
on behalf of the ward). There is no danger the other spouse could convince the ward to
transfer property outside of the conservatorship because “[a] ward who is . . . a mentally
incompetent person for whom a conservator has been appointed does not have the power
to convey, encumber or dispose of property[.]” Wyo. Stat. Ann. § 3-1-202(a) (LexisNexis
2021). Furthermore, one spouse may not, without agreement of the other spouse or the
conservator representing the spouse, transfer or encumber real property or its income, rents,
and profits when it is owned as husband and wife (tenants by the entirety). Colo. Nat’l
Bank v. Miles, 711 P.2d 390, 393-94 (Wyo. 1985). See also, Fuger v. Wagoner, 2020 WY
154, ¶ 19, 478 P.3d 176, 184 (Wyo. 2020) (“‘[N]either spouse may convey his or her
interest as a tenant by the entirety without being joined in the conveyance by the other
spouse[.]’” (quoting Est. of Marusich v. State, ex rel., Dep’t of Health, Off. of Healthcare
Fin./Equalitycare, 2013 WY 150, ¶ 18, 313 P.3d 1272, 1279 (Wyo. 2013))) (other citations
omitted). Thus, the legislature’s authorization for a conservator to pursue statutory and
common law remedies to protect the ward’s estate makes it unnecessary for a conservator
to obtain a divorce for the ward in order to protect her property.
[¶31] Under § 3-2-201(a)(ix) and § 3-3-606(a)(xii), the district court can modify the
guardian’s or conservator’s “range of duties if the changed circumstances of the ward
11
require such modification[.]” The plain language of these provisions, as interpreted within
the larger context of the guardianship and conservatorship statutory schemes, do not
expand the guardian’s or conservator’s powers beyond the confines of their respective
statutory roles. Instead, § 3-2-201(a)(ix) and § 3-3-606(a)(xii) allow the court to modify
the scope and duration of the appointments. The order appointing a guardian or conservator
must state whether the appointment is “for a specified term or permanent” and whether the
scope of duties is “limited or plenary.” Wyo. Stat. Ann. § 3-2-104(b)(iii)-(iv) (LexisNexis
2021) (guardian); § 3-3-104(b)(iii)-(iv) (conservator). The court may limit the “scope of
duties or duration of appointment” under § 3-1-101(a)(x)-(xi). Alternatively, it may grant
the guardian or conservator plenary powers which include the “full range of duties
allowable by law.” Section 3-1-101 (a)(xiii), (xiv). Therefore, the statutory provisions
allowing the court to modify the guardian’s or conservator’s range of duties simply permit
adjustment of the scope and duration of the appointments within the context of the powers
already set out in the relevant statutes. To read these provisions as expanding a guardian’s
or conservator’s powers outside those specified in the guardianship and conservatorship
statutes would undermine the structure of the carefully constructed lists of powers
authorized by the legislature.
[¶32] Another problem with recognizing an implied power for a guardian or conservator
to sue for the ward’s divorce is the lack of legislative guidance regarding the guardian’s or
conservator’s burden of proof. The Arizona court in Ruvalcaba adopted a “substituted
judgment” standard for determining if a guardian can pursue a divorce for his ward. Id.,
850 P.2d at 682. “[T]he guardian may proceed after concluding that this is what the ward
would want, basing that conclusion on what is known of the ward’s preferences and the
ward’s general values regarding marriage and divorce and overall manner of living.” Id.
at 681-82. In Nelson, 878 P.2d at 340, the New Mexico court stated the guardian’s decision
to file for divorce must be guided primarily by the ward’s values and “the wishes of an
incompetent adult ward with regard to the permanence of marriage vows [must] be
respected.” However, “[i]f those wishes cannot be definitively ascertained,” the guardian
could still obtain a divorce for the ward if it was in the ward’s best interests and the grounds
for divorce were proven. Id. In Brooks, 614 S.W.3d at 914, the Kentucky court decided
the guardian could request permission from the court “overseeing the guardianship to
initiate [in family court] a dissolution of marriage action on behalf of” the ward, and
permission would be granted if the guardian proved a divorce would serve the ward’s best
interests.
[¶33] These differing standards highlight a problem with allowing a guardian and/or a
conservator to proceed with a divorce in the absence of legislative guidance on the
procedure for doing so. Without statutory direction on whether the decision to move
forward with a ward’s divorce should be based upon the ward’s subjective views on divorce
or the objectively-determined best interests of the ward, the court risks usurping the
exclusive role of the legislature in establishing divorce, guardianship, and conservatorship
law. This brings us full circle to the original observation that a spouse’s decision to divorce
12
(or not) is highly personal and imbued with considerations which may not necessarily serve
the spouse’s best interests or seem reasonable to other people. We refuse to make an
independent judgment on these important matters without legislative action specifically
establishing Wyoming’s public policy on a guardian’s or conservator’s right to sue for the
ward’s divorce.
CONCLUSION
[¶34] In answer to the certified question, Wyoming law does not permit a guardian or
conservator to move for and prosecute a divorce action on behalf of the ward. We
recognize there may be prior cases where a guardian or conservator obtained a divorce for
a ward, but the question of authority to do so was not properly raised or appealed. See,
e.g., Matter of Guardianship of McNeel, ¶¶ 34-35, 109 P.3d at 519. Considering the factors
for retroactive or prospective application of a court decision as described in Adkins v. Sky
Blue, Inc., 701 P.3d 549, 552 (Wyo. 1985), and Best v. Best, 2015 WY 133, ¶¶ 29-30, 357
P.3d 1149, 1156 (Wyo. 2015), we hold our decision in this case applies to the parties before
us and beyond that has prospective application only.
13
FENN, J., dissenting, in which FOX, C.J., joins.
[¶35] I respectfully dissent from the proposed majority opinion.
[¶36] The majority is correct that the law governing divorce, guardianships, and
conservatorships is strictly statutory. Like other jurisdictions that have been tasked with
answering the same question that is presently before the Court, our guardianship and
conservatorship statutes do not expressly permit or prohibit the filing of a divorce action
by a third party on behalf of an incompetent ward. Other courts have been faced with the
same conflicting arguments that are present in this case. Those seeking to prevent the filing
of the divorce action argue if the legislature intended to provide for an action by a third
party, it would have done so expressly in the statute. Ruvalcaba, 850 P.2d at 678. Those
seeking to allow a guardian or conservator to file a divorce on behalf of a ward argue if the
legislature intended to prohibit an action by a third party on behalf of a spouse, it would
have expressly said so. Id. Following what the majority acknowledges is the “modern
trend,” I would adopt the “minority rule” and find the broad powers and duties our
legislature granted to guardians and conservators encompass allowing a guardian or
conservator to file a divorce action. See id. at 684 (finding a divorce action could be filed
under the guardian’s general powers to act on behalf of an incompetent ward); Nelson, 878
P.2d at 338 (citing Campbell v. Campbell, 5 So.2d 401, 402 (Ala. 1941); Ruvalcaba, 850
P.2d at 678; Kronberg v. Kronberg, 623 A.2d 806, 809–10 (N.J. Super. Ch. Div. 1993))
(“[M]ost minority-rule courts construe existing statutes authorizing the guardian to pursue
and defend civil claims in the interest of their ward to include authority to bring an action
for divorce.”).
[¶37] The majority is correct that we are not at liberty to add words to a statute that the
legislature chose to omit. City of Torrington, 2006 WY 145, ¶ 12, 145 P.3d at 1279 (quoting
Fullmer, 858 P.2d at 1124); Wyodak, 2017 WY 6, ¶ 31, 387 P.3d at 733; see also Adekale
v. State, 2015 WY 30, ¶ 13, 344 P.3d 761, 765 (Wyo. 2015) (citing Stutzman v. Office of
Wyo. State Eng’r, 2006 WY 30, ¶¶ 14–16, 130 P.3d 470, 475 (Wyo. 2006)) (“[W]e will
not add language or choose other words to change the meaning of a statute.”). However,
the majority opinion does not recognize that “exceptions not made by the legislature in a
statute cannot be read into it.” Delcon Partners LLC v. Wyo. Dep’t of Revenue, 2019 WY
106, ¶ 10, 450 P.3d 682, 685 (Wyo. 2019) (quoting Seherr-Thoss v. Teton Cty. Bd. of Cty.
Comm’rs, 2014 WY 82, ¶ 20, 329 P.3d 936, 945 (Wyo. 2014)). While these two principles
may appear to conflict, adopting the minority/modern rule would be consistent with both
principles. This approach allows us to recognize what the legislature actually stated
without adding words to create exceptions that do not exist.
[¶38] In Grosskopf, we recognized “[w]ith the enactment of § 20-2-104 . . . parties could
obtain a divorce, without regard to fault, upon proof of irreconcilable differences.”
Grosskopf, 677 P.2d at 819. Under Rule 1 of the Wyoming Rules of Civil Procedure, the
rules apply in “all civil actions and proceedings” except as stated in Rule 81. In turn, Rule
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81 carves out exceptions for special statutory proceedings. The legislature has not chosen
to make marital dissolution a special statutory proceeding. Instead, Wyoming Statute § 20-
2-108 (LexisNexis 2021) states actions for divorce “shall be conducted in the same manner
as civil actions . . . except a divorce decree shall not be entered less than twenty (20) days
from the date the complaint is filed.” Under Rule 17(c) of the Wyoming Rules of Civil
Procedure, a guardian or conservator “may sue or defend on behalf of . . . an incompetent
person[.]” Rule 17(c) does not contain an exception for divorce actions. See also
Ruvalcaba, 850 P.2d at 678 (finding a guardian could file a divorce on behalf of a ward
because nothing in Arizona’s guardianship statute or Rule 17 precluded a guardian from
doing so). The approach outlined by the majority would add words into Wyoming Statute
§ 20-2-108 so that it would say divorce actions shall be conducted as civil actions, except
that they may not be filed by a guardian or conservator on behalf of an incompetent ward.
“We presume that the legislature has acted in a thoughtful and rational manner with full
knowledge of existing law, and that it intended new statutory provisions to be read in
harmony with existing law and as part of an overall and uniform system of jurisprudence.”
Sullivan v. State, 2019 WY 71, ¶ 10, 444 P.3d 1257, 1260 (Wyo. 2019) (quoting
PacifiCorp, Inc. v. Wyo. Dep’t of Revenue, 2017 WY 106, ¶ 10, 401 P.3d 905, 908–09
(Wyo. 2017)). Under this principle, we must assume the guardianship statutes and the
divorce statutes should be read in harmony, and we cannot add words into Wyoming
Statute § 20-2-108 to create an exception that is not there.
[¶39] Although Wyoming Statute § 20-2-104 allows for divorce on the grounds of
irreconcilable differences, it is not the only statute that provides a path for the dissolution
of a marriage. Under Wyoming Statute § 20-2-105(a) (LexisNexis 2021), a divorce may
be granted where either party has become “incurably insane,” and the insane person has
been confined in a mental hospital for at least two years. The statute further states that
upon the filing of a verified complaint, the district court shall appoint someone to act as a
guardian for the insane person. Wyo. Stat. Ann. § 20-2-105(b). Similarly, Wyoming
Statute § 20-2-101(e) allows “a guardian or next friend” to maintain an action of annulment
on behalf of a ward who was “mentally incompetent” at the time of the marriage. Thus,
under the majority’s interpretation, a guardian could file these actions but could not file for
divorce on the grounds of irreconcilable differences. This conflicts with Wyoming Statute
§ 20-2-108, which states divorce actions should be treated like other civil actions. The fact
that a guardian can bring these actions suggests the legislature was not concerned about
allowing a guardian to intrude into the personal and volitional decision of filing for divorce.
The approach taken by the majority would allow a guardian or conservator to defend a
divorce action filed against an incompetent spouse while precluding that guardian or
conservator from filing such an action on the ward’s behalf, even if while incompetent a
spouse is able to clearly articulate his or her wish to file for divorce. This inconsistency is
avoided under the minority/modern rule.
[¶40] Although the majority recognizes under Wyoming Statute § 3-2-201(a)(v), a
guardian is required to “[c]ommence protective proceedings if necessary to protect the
15
property of the ward,” the majority indicates this is limited to actions like replevin, even
though the statute contains no such limitation, nor does it include an exception for divorce
actions. In addition, Wyoming Statute § 3-2-201(b)(iii) allows a guardian to institute
proceedings to compel the performance of any duty to contribute to the support of the ward.
Yet, the majority finds this authority is limited to bringing an action for support under
Wyoming Statute § 20-2-102, rather than a divorce action. Such an exception does not
appear in Wyoming Statute § 3-2-201(b)(iii), and Wyoming Statute § 20-2-114 allows the
district court to order a spouse to pay alimony when making disposition of the marital
property. Wyoming Statutes §§ 3-2-201(a)(v) and 3-2-201(b)(iii) do not contain an
exhaustive list of the types of actions a guardian could file to protect the ward’s property
or to compel financial support. The majority’s approach requires us to either add words
into these statutes or create an exception for divorce actions, both of which are prohibited
by our principles of statutory interpretation. Further, a guardian is required to “[t]ake
reasonable care of the ward’s personal property[,]” and “[e]xercise due care to conserve
excess funds for the ward’s future needs.” Wyo. Stat. Ann. § 3-2-201(a)(iv), (vii). A
divorce might be necessary to comply with these mandates, but it would be precluded under
the majority’s holding.
[¶41] Similarly, the majority infers a guardian cannot seek permission from the court
under Wyoming Statute § 3-2-201(a)(ix) to file a divorce, because it falls outside the
powers specifically granted by the guardianship statutes. However, when Wyoming
Statute § 3-2-201(a)(ix) is read in conjunction with W.R.C.P. 17(c) and Wyoming Statute
§ 20-2-108, the district court has the authority to “modify the guardian’s range of duties if
the changed circumstances of the ward require such modifications[,]” which could include
seeking a divorce. See In re Salesky, 958 A.2d 948, 953–54 (N.H. 2008) (holding the
“catchall provisions” of New Hampshire’s guardianship statutes that allowed a court to
impose “additional duties” when in the best interests of the ward included authorizing a
guardian to file a divorce on the ward’s behalf). If the district court could not grant powers
to a guardian that were not expressly listed in Wyoming Statutes §§ 3-2-201(a)(i)–(viii)
and 3-2-202, then Wyoming Statute § 3-2-201(a)(ix) would be meaningless. “This Court
will not interpret a statute in a way which renders any portion of it meaningless or in a
manner producing absurd results.” Adekale, 2015 WY 30, ¶ 13, 344 P.3d at 765–66 (citing
Stutzman, 2006 WY 30, ¶ 16, 130 P.3d at 475).
[¶42] Turning to the conservatorship statutes, the majority recognizes Wyoming Statute
§ 3-1-204(b) allows a conservator to “bring an action to determine title to or gain
possession of the ward’s property.” Yet it finds this is limited to “quiet title and ejectment
actions against outside parties,” even though no such limitation appears in Wyoming
Statute § 3-1-204(b), nor does the statute contain an exception for divorce actions. A
divorce would determine title to and possession of the ward’s property. See Wyo. Stat.
Ann. § 20-2-114 (“in granting a divorce, the court shall make such disposition of the
property of the parties as appears just and equitable . . . .”). Again, the majority approach
requires us to read words into the statute to limit the type of actions a conservator may file.
16
[¶43] The majority recognizes Wyoming Statute § 3-3-606(a) allows a conservator to
“[e]nforce, defend against or prosecute any claim by or against the ward,” “[s]ue on and
defend claims in favor of or against the ward,” and “[a]ppear for and represent the ward in
all legal proceedings . . . and prosecute or defend actions, claims or proceedings in any
jurisdiction for the protection of the estate assets . . . .” (Emphasis added). The majority
also recognizes Wyoming Statute § 3-3-607(a) allows the conservator, with the consent of
the court, to “[c]ompromise or settle any claim by or against the ward,” or “[d]o any other
thing that the court determines to be in the best interest of the ward and his estate[.]”
(Emphasis added). Yet, despite this broad language, the majority adds words to the statute
to find there is an implied exception for divorce cases. This finding is contrary to our rules
of statutory interpretation. See City of Torrington, 2006 WY 145, ¶ 12, 145 P.3d at 1279(quoting Fullmer, 858 P.2d at 1124); Wyodak, 2017 WY 6, ¶ 31, 387 P.3d at 733; Delcon
Partners LLC, 2019 WY 106, ¶ 10, 450 P.3d at 685 (quoting Seherr-Thoss, 2014 WY 82,
¶ 20, 329 P.3d at 945).
[¶44] In addition to those powers listed above, a conservator may also ask the court “to
modify the conservator’s range of duties if the changed circumstances of the ward require
such modifications.” Wyo. Stat. Ann. § 3-3-606(a)(xii). When read in conjunction with
W.R.C.P. 17(c) and Wyoming Statute § 20-2-108, this statutory provision allows the court
to authorize a conservator to file a divorce action on behalf of the ward when it is in the
best interests of the ward. If we gave this statute the interpretation proposed by the majority
and found the district court could not grant a conservator powers that were not expressly
listed in Wyoming Statutes §§ 3-3-606(a)(i)–(xi) or 3-3-607, then § 3-3-606(a)(xii) would
be rendered meaningless. We cannot interpret a statute in a way that renders any portion
of it meaningless. Adekale, 2015 WY 30, ¶ 13, 344 P.3d at 765–66 (citing Stutzman, 2006
WY 30, ¶ 16, 130 P.3d at 475).
[¶45] Our primary objective when interpreting statutes is to give effect to the legislature’s
intent. Delcon Partners, LLC, 2019 WY 106, ¶ 9, 450 P.3d at 685 (citing Mattheis Co. v.
Town of Jackson, 2019 WY 78, ¶ 14, 444 P.3d 1268, 1273 (Wyo. 2019)). “[I]t is one of
the surest indexes of a mature and developed jurisprudence to remember that the statutes
always have some purpose or object to accomplish, whose sympathetic and imaginative
discovery is the surest guide to their meaning.” Adekale, 2015 WY 30, ¶ 13, 344 P.3d at
765 (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945)). “Our role . . . is not
to determine whether the legislature’s chosen policy is the best one; . . . [we] give effect to
the one it chose.” Delcon Partners, LLC, ¶ 9, 450 P.3d at 685.
[¶46] The majority holds a guardian or conservator cannot file for a divorce on behalf of
a ward because the decision to file a divorce is uniquely personal and volitional, and
spouses might choose to remain in a marriage that is not in their best interest. This rationale
has been rejected by some of those jurisdictions that have adopted the minority rule. Those
jurisdictions look at the other extremely personal decisions guardians and conservators are
17
specifically authorized to make on behalf of a ward, and given the personal nature of those
decisions, they have found adopting a blanket rule prohibiting that same guardian from
maintaining an action for dissolution on behalf of the ward cannot be justified. See, e.g.,
Ruvalcaba, 850 P.2d at 681. When rejecting the theory that divorce is exclusively personal
and volitional, the Supreme Court of Illinois found:
[I]t is difficult for us to accept the view that the decision to
divorce is qualitatively different from any other deeply
personal decision, such as the decision to refuse life-support
treatment or the decision to undergo involuntary sterilization.
Each of these latter decisions can rarely be undone. The same
cannot be said for the decision to divorce—if the disabled adult
regains competency and disagrees with the guardian’s
decision, remarriage to the former spouse may be possible.
Thus, there is no reason why the guardian should not be
allowed to use the substituted-judgment provisions found in
section 11a–17(e) of the Probate Act to make all types of
uniquely personal decisions that are in the wards’s [sic] best
interests, including the decision to seek a dissolution of
marriage. Under our modern legal framework, “[i]f one party
to a marriage need not be ‘at fault,’ and divorce is arguably
more ‘acceptable’ in American society, it is not inconceivable
that elderly, mentally incapacitated, or mentally ill individuals
could want or need to institute divorce proceedings, where
historically their wants or needs were legally irrelevant or
dismissed as unascertainable.”
Karbin v. Karbin ex rel. Hibler, 977 N.E.2d 154, 162–63 (Ill. 2012) (quoting Diane Snow
Mills, Comment, “But I Love What's–His–Name”: Inherent Dangers in the Changing Role
of the Guardian in Divorce Actions on Behalf of Incompetents, 16 J. Am. Acad.
Matrimonial Law, 527, 528–29 (2000)); see also In re Marriage of Gannon, 702 P.2d 465,
467 (Wash. 1985) (“[I]n these days of termination of life support, tax consequences of
virtually all economic decisions, no-fault dissolutions and the other vagaries of a vastly
changing society, we think an absolute rule denying authority is not justified nor in the
public interest.”). Those courts recognize the purpose of allowing a guardian or
conservator to file a divorce on the ward’s behalf “is to ensure that the legal disability
imposed will not undermine adequate protection of a ward’s interest.” Luster v. Luster, 17
A.3d 1068, 1078 (Conn. App. Ct. 2011) (quoting Cottrell v. Connecticut Bank & Trust,
Co., 398 A.2d 307, 310 (Conn. 1978)).
[¶47] As defined by the guardianship and conservatorship statutes, an incompetent person
is one “who, for reasons other than being a minor, is unable unassisted to properly manage
and take care of himself or his property . . . .” Wyo. Stat. Ann. § 3-1-101. The legislature
18
granted guardians and conservators the power to make decisions for a ward that are deeply
“personal and volitional” in nature. Wyoming Statute § 3-2-201(b)(vi) allows a guardian
to “[c]onsent to the marriage or adoption of the ward.” A guardian also has the power to
“authorize or expressly withhold authorization of medical or other professional care,
treatment or advice[.]” Wyo. Stat. Ann. § 3-2-201(a)(iii). Subject to the court’s approval,
a guardian can commit the ward to a mental hospital, consent to the ward’s sterilization or
other forms of permanent contraception, relinquish the ward’s minor children for adoption,
and execute advance medical directives or durable power of attorney for health care
decisions, which make end of life decisions for the ward. Wyo. Stat. Ann. § 3-2-202(a). A
ward might have personal, religious, moral, or economic reasons for not wanting medical
care or contraception, but the legislature was not concerned about allowing a guardian or
conservator to intrude into those decisions. The majority implies the legislature did not
expressly include filing a divorce in the guardianship statutes because the decision to file
a divorce is too personal and volitional. However, it is also possible the legislature decided
to leave filing a divorce off the list of enumerated powers because it felt the decision to file
a divorce is not as personal and volitional as the other enumerated decisions and did not
warrant being specifically called out. As discussed above, we presume the legislature
“acted in a thoughtful and rational manner with full knowledge of existing law, and that it
intended new statutory provisions to be read in harmony with existing law . . . .” Sullivan,
2019 WY 71, ¶ 10, 444 P.3d at 1260 (quoting PacifiCorp, Inc., 2017 WY 106, ¶ 10, 401
P.3d at 908–09). The legislature chose to grant guardians and conservators “the authority
to interfere in the most intimately personal concerns of an individual’s life.” Nelson, 878
P.2d at 340. Given the broad language of the statutes cited above, “it makes little sense to
adopt a per se rule arbitrarily limiting the ability of a guardian [or conservator] to act for
her or his ward in a divorce action.” Id. at 341. Creating such a rule as suggested by the
majority requires us to read words into the statutes that are not there to create an exception
that does not exist. I would adopt the minority/modern rule and answer the certified
question in the affirmative, allowing a guardian/conservator to move for and prosecute a
divorce action on behalf of the ward.
19