In Re the Marriage of Leora McGee v. Robert McGee

Oct 24 2013, 5:20 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:
BESSIE M. DAVIS JEANNE KELLY
Gary, Indiana Merrillville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MARRIAGE OF )
LEORA MCGEE, )
)
Appellant, )
)
vs. ) No. 45A04-1301-DR-33
)
ROBERT MCGEE, )
)
Appellee. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Elizabeth Tavitas, Judge
Cause No. 45D03-1208-DR-639
October 24, 2013
OPINION – FOR PUBLICATION
MATHIAS, Judge
Leora McGee (“Wife”) appeals the Lake Superior Court’s grant of the petition for
dissolution of marriage filed by the co-guardians of Robert McGee (“Husband”) on
Husband’s behalf. Wife presents several issues on appeal, but we address a single
dispositive issue, namely, whether the trial court erred in granting the petition where
Indiana statute provides no authorization for a guardian to file a petition for dissolution
on behalf of his or her ward.
We reverse.
Facts and Procedural History
Husband and Wife married on October 14, 2009 and lived together as a married
couple until the spring of 2012. At that time, while Wife was in the hospital, Husband’s
daughters, the future co-guardians, Sharon Hilton (“Hilton”) and Judith Kalajian
(“Kalajian”) moved Husband to a nursing home in Michigan and called Wife at the
hospital to explain what they had done. On June 28, 2012, Husband’s daughters were
appointed co-guardians of Husband’s person and estate.
On August 2, 2012, Hilton and Kalajian filed, on Husband’s behalf, a petition for
dissolution of marriage. Wife filed a counter-petition on August 24, 2012. On
November 1, 2012, a final hearing was held. Husband appeared by counsel and by co-
guardian Hilton, and Wife appeared in person and by counsel. At the hearing, Hilton
testified that it was her belief that Husband’s marriage with Wife was irretrievably
broken. Wife, on the other hand, testified that the marriage “was never broken. We have
a good marriage.” Tr. p. 9. On November 7, 2012, the trial court issued an order
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granting the petition for dissolution of marriage filed by Husband’s co-guardians on his
behalf. Wife now appeals.
Discussion and Decision
Although Wife asserts, as her basis for appeal, that the trial court lacked subject
matter jurisdiction over Husband’s co-guardians’ petition for dissolution, the trial court
did have, and we likewise have on appeal, subject matter jurisdiction over the present
case. Therefore, rather than reviewing for lack of subject matter jurisdiction, we examine
whether the trial court’s order complies with this court’s recent interpretation of the
Indiana statute regarding the alleged authority of a guardian to commence and prosecute
dissolution proceedings on behalf of a ward.
The right to dissolve a marriage is not a common law right; rather it is a purely
statutory right. Therefore, a petition to dissolve a marriage can only be brought in the
manner and within the limitations prescribed by statute. See State ex rel. Quear v.
Madison Circuit Court, 229 Ind. 503, 99 N.E.2d 254, 256 (1951) (providing that “[t]he
right to divorce is not a common law right, but depends upon legislative enactments”).
When deciding questions of statutory interpretation, appellate courts need not
defer to a trial court’s interpretation of the statute’s meaning. Elmer Buchta Trucking,
Inc. v. Stanley, 744 N.E.2d 939, 942 (Ind. 2001). Rather, we independently review the
statute’s meaning and apply it to the facts of the case under review. Id. Our court will
not read into a statute that which is not the manifest intent of the General Assembly. Id.Thus, it is as important to recognize what a statute does not say as it is to recognize what
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it does say. Robinson v. Gazvoda, 783 N.E.2d 1245, 1250 (Ind. Ct. App. 2003), trans.
denied.
In State ex rel. Quear v. Madison Circuit Court, our supreme court clearly and
decisively addressed the question of whether a guardian could file a petition for
dissolution on behalf of the ward. It declared that “[t]here is no statutory authorization in
any of the acts providing for the appointment of a guardian which would authorize a
guardian to prosecute an action for divorce” and, further, that “[a]n insane person cannot
bring an action for divorce because he cannot consent to the filing of the complaint.”
Quear, 229 Ind. at 506, 99 N.E.2d at 256-57.
Husband’s co-guardians argue that the rule set forth in Quear has the effect of
“[p]rohibiting a guardian from bringing action to dissolve the marriage on behalf of his
incapacitated ward [which] causes the guardian to be in conflict with his oath to preserve
the property and protect the health and welfare of their incapacitated ward.” Appellee’s
Br. at 5. While this claim is carefully expressed in terms of the co-guardians’
responsibility to Husband, their ward and father, there is no evidence in the record of any
competent expression of Husband desiring anything other than his continued marriage to
Wife, and Wife clearly desires to remain married to Husband, whether he is competent or
not. The real reason for the co-guardians’ claims considers neither the love of Husband
and Wife, nor their vows of “for better and for worse.” For good reason, and as our
supreme court made clear in Quear, and as re-emphasized in this court’s recent opinion,
Marriage of Tillman v. Tillman, 87A05-1212-DR-619, 2013 WL 3376920 (Ind. Ct. App.
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July 3, 2013), trans. denied, the right to divorce is a legislatively-created right, not a
judicially-created right.
While the statutes governing dissolution and guardianship in Indiana have evolved
since 1951, when Quear was decided, it is still the case today that neither the current
Indiana statutes governing dissolution of marriage nor those governing the guardianship
of incapacitated persons provide a means for a guardian to file a petition for dissolution
of marriage on behalf of his or her ward. Dissolution of marriage actions in Indiana are
governed by Indiana Code Title 31, Article 15, which provides that a party who seeks to
initiate a dissolution of marriage proceeding must file a verified petition for dissolution.
Ind. Code § 31-15-2-5. Indiana Code section 29-3-8-4 provides that the guardian of an
incapacitated person may take action and make decisions for the benefit of the
incapacitated person. For example, the guardian may “invest and reinvest the property of
the protected person,” may exercise control over the incapacitated person’s business or
income, and, if reasonable, may “delegate to the protected person certain responsibilities
for decisions affecting the protected person’s business affairs and well-being.” Neither
statute, however, provides the guardian with the right to file a petition for dissolution on
behalf of the incapacitated person. In a world full of subsequent marriages and available
pre-nuptial agreements, we will not read into a statute such a sweeping and potentially
overreaching authority, authority that is not the clearly expressed intent of the General
Assembly.
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Therefore, since Indiana statute does not provide guardians with the authority to
petition for dissolution of marriage on the ward’s behalf, the trial court’s grant of the
petition for dissolution Hilton and Kalajian filed on Husband’s behalf was improper.
Conclusion
For all of these reasons, we conclude that the trial court erred by granting the
petition for dissolution filed by co-guardians Hilton and Kalajian on behalf of their ward,
Husband.
Reversed.
NAJAM, J., and BROWN, J., concur.
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