Charles E. Brooks by Elderserve, Inc., Legal Guardians v. Hon Tara Hagerty, Jefferson Circuit Court Judge, Family Division 5

RENDERED: JANUARY 21, 2021
TO BE PUBLISHED
Supreme Court of Kentucky
2020-SC-0065-MR
CHARLES E. BROOKS BY ELDERSERVE, APPELLANT
INC., LEGAL GUARDIANS
ON APPEAL FROM COURT OF APPEALS
V. NO. 2019-CA-1589
JEFFERSON CIRCUIT COURT NO. 19-CI-501173
HONORABLE TARA HAGERTY, APPELLEE
JEFFERSON CIRCUIT COURT JUDGE,
FAMILY DIVISION 5
AND
TAYLOR TONEY REAL PARTY IN INTEREST
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
Pending in Jefferson Family Court is an annulment action in the
marriage of Charles E. Brooks and Taylor Toney. Elderserve, Inc. brought the
action as Brooks’ guardian. Elderserve, Inc., on Brooks’ behalf, then sought to
amend the annulment petition to include a petition for a dissolution of Brooks
and Toney’s marriage in order to confer upon the family court jurisdiction over
contested property. The family court denied the motion to amend, citing
Johnson v. Johnson’s1 prohibition against guardians initiating an action for
divorce on behalf of their wards.
Elderserve then sought a writ of mandamus from the Court of Appeals
directing the Jefferson Family Court to grant its motion to amend the
annulment petition to include a petition for dissolution of marriage on behalf of
Brooks. The Court of Appeals denied the writ petition also relying on our
holding in Johnson. We note that both the Jefferson Family Court and the
Court of Appeals, while citing Johnson as authority, requested that we
reevaluate the value of Johnson as a controlling precedent.
Elderserve, for Brooks, appeals to this Court from the Court of Appeals’
denial of its petition for a writ, seeking this Court’s reexamination of Johnson.
We conclude that the trial court’s denial of the motion to amend the annulment
petition was not in error as Johnson was good precedent at the time the court
entertained Elderserve’s petition. However, we reevaluate Johnson and set forth
the procedure heretofore for this matter and others like it. After a thorough
review of the case law and statutes, we hold that changes to the Kentucky
guardianship statutes since Johnson’s rendering no longer justify its complete
prohibition of guardian-initiated divorces. Realizing the significant change this
presents, we take this opportunity to describe the legal steps which must be
followed by a guardian before he or she can petition for a divorce for his or her
ward. Because this procedure was not followed prior to Elderserve’s motion to
1 170 S.W.2d 889 (Ky. 1943).
2
amend was filed, we hold that the trial court did not err in denying the motion
to amend. Accordingly, we affirm the decision of the Court of Appeals.
I. FACTUAL AND PROCEDURAL BACKGROUND
The underlying action in this case is an annulment of marriage. Charles
E. Brooks and Taylor Toney were married in February 2017. At the time of
their marriage, Brooks was seventy-six years old and blind; Toney was twenty-
nine years old. Toney had been a caretaker for Brooks’ wife until her death.
In late 2018, the Cabinet for Health and Family Services’ Adult Protective
Services (APS) was alerted to facts indicating Brooks was the victim of elder
abuse and initiated an investigation. APS found Brooks to be neglected and in
poor physical condition, and in November 2018, APS initiated an emergency
action for guardianship. The subsequent APS investigation substantiated the
allegation of exploitation and identified Toney as the agent responsible for
Brooks’ exploitation and neglect. On January 25, 2019, the Jefferson District
Court found Brooks to be wholly disabled in managing his personal and
financial affairs and appointed APS as an emergency guardian with the powers
and duties of both a guardian and conservator under KRS Chapter 387. On
April 1, 2019, the court made the emergency guardianship permanent,
appointing Elderserve, Inc. as Brooks’ third-party guardian. Elderserve found
evidence indicating Brooks was not competent to enter into marriage at the
time of the marriage and, on behalf of Brooks, filed a petition for annulment on
April 15, 2019.
3
Prior to APS’s intervention and Elderserve’s appointment, Toney
obtained powers of attorney from Brooks which enabled her to liquidate and
transfer the preponderance of Brooks’ real and personal property to herself.
These transfers included Brooks’ non-marital home, which Toney used the
power of attorney to sell. She deposited the proceeds of the sale into a joint
account and then transferred those proceeds into accounts solely in her name.
Toney used these proceeds to purchase real estate titled solely in her name.
These transfers conveyed to Toney the bulk of Brooks’ financial resources,
resources that Elderserve identified as necessary for Brooks’ continued care.2
Elderserve moved to recover Brooks’ assets, but the family court correctly
questioned whether it had jurisdiction over the real property as part of the
annulment action.3 In response, Elderserve sought, and received, from the
district court permission to file a lis pendens notice against the property Toney
acquired with Brooks’ assets.4 Elderserve then moved to amend the annulment
action to add a petition for dissolution of marriage, an amendment to which
Toney objected. The family court denied Elderserve’s motion to amend, citing
2 Additionally, Toney is alleged to have continued to misappropriate Brooks’
pension checks after Elderserve had been appointed guardian and her powers of
attorney invalidated. She is under felony indictment in Jefferson County for multiple
counts of theft and forgery in connection with these actions (19-CR-002867).
3 We note that this question was not presented to us, and we decline to address
it today.
4 While not in the record before us, we take judicial notice of the Jefferson
Family Court’s issuance of a status quo order in connection with this case on June 17,
2019. Both the district and family courts used the tools at their disposal to protect
Charles Brooks to the extent available, given the facts before them and the state of the
law.
4
Johnson’s firm prohibition of guardian-initiated divorces. In the denial order,
the family court indicated it found the concurrence from Riehle v. Riehle5
persuasive and agreed that Johnson should be reexamined; despite this, it felt
precluded from disregarding Johnson’s direct prohibition of guardian-initiated
dissolutions.
Elderserve then sought a writ of mandamus from the Court of Appeals
instructing the family court to permit Elderserve, on Brooks’ behalf, to amend
the annulment action to include a petition for dissolution. The Court of Appeals
held that Brooks had an adequate remedy by appeal. Specifically, the Court of
Appeals held that, unlike a dissolution of marriage, annulments may be
appealed, and such an action was open to Brooks. Additionally, Brooks could
appeal the denial of the motion to amend. It stated Brooks failed to show the
family court erred in applying Johnson and stated that any amendment would
be futile due to Johnson’s prohibition. While it denied Brooks’ request for a
writ, the court stated that “the time has come to reconsider the wisdom of
Johnson’s prohibition of guardians maintaining dissolution actions on behalf of
an incompetent person.” Brooks, through Elderserve, urges this Court to
reevaluate Johnson and reverse the Court of Appeals’ denial of his petition for a
writ of mandamus. Toney failed to file a response brief to this Court, and
5 504 S.W.3d 7 (Ky. 2016).
5
pursuant to CR6 76.12(8)(c), we choose to accept the Appellant’s recitation of
facts and issues as true.7
II. STANDARD OF REVIEW
Writs are an extraordinary remedy “disfavored by our jurisprudence. We
are, therefore, ‘cautious and conservative both in entertaining petitions for and
in granting such relief.’”8 We reserve the right to issue writs to those “situations
where litigants will be subjected to substantial injustice if they are required to
proceed.”9 Extraordinary writs may be granted in two classes of cases. The first
class requires a showing that “the lower court is proceeding or is about to
proceed outside of its jurisdiction and there is no remedy through an
application to an intermediate court.”10 The second requires a showing that
“the lower court is acting or is about to act erroneously, although within its
jurisdiction, and there exists no adequate remedy by appeal or otherwise.”11
This second class also usually requires a showing that “great injustice and
irreparable injury will result if the petition is not granted.”12 There are,
6 Kentucky Rules of Civil Procedure.
7 See also St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 732
(Ky. 2014); Callahan v. Callahan, 579 S.W.2d 385, 386 (Ky. App. 1979).
8 Caldwell v. Chauvin, 464 S.W.3d 139, 144-45 (Ky. 2015) (citing Ridgeway
Nursing & Rehab. Facility, LLC v. Lane, 415 S.W.3d 635, 639 (Ky. 2013); Bender v.
Eaton, 343 S.W.2d 799, 800 (Ky. 1961)).
9 Indep. Order of Foresters v. Chauvin, 175 S.W.3d 610, 615 (Ky. 2005).
10 Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky. 2004).
11 Id.
12 Id.
6
however, special cases within the second class of writs that do not require a
showing of great injustice and irreparable injury. In those special cases, a writ
is appropriate when “a substantial miscarriage of justice” will occur if the lower
court proceeds erroneously, and “correction of the error is necessary in the
interest of orderly judicial administration.”13 Even in these special cases, the
party seeking a writ must show that there is no adequate remedy by appeal.14
“No adequate remedy by appeal” means that the party’s injury “could not
thereafter be rectified in subsequent proceedings in the case.”15 Brooks and
Elderserve seek a writ of mandamus under the second class of writs.
III. ANALYSIS
For a writ of the second class, the applicant must show an error by the
court below that will result in great harm or irreparable injury that cannot be
adequately rectified by appeal or otherwise.16 And even if an appeal is shown to
be inadequate or unavailable, the applicant must still show that he will suffer a
“great injustice or irreparable harm” if a writ is not issued.17 Kentucky courts
have repeatedly defined “great and irreparable harm” as “something of a
ruinous nature.”18 As we summarized the law in Caldwell, in cases seeking a
13 Chauvin, 175 S.W.3d at 616 (quoting Bender, 343 S.W.2d at 801).
14 Id. at 617.
15 Id. at 615 (quoting Bender, 343 S.W.2d at 802).
16 Caldwell, 464 S.W.3d at 145 (citing Hoskins v. Maricle, 150 S.W.3d 1, 10 (Ky.
2004)).
17 Hoskins, 150 S.W.3d at 6.
18 Bender, 343 S.W.2d at 801.
7
second-class writ, we typically approach first the elements of no adequate
remedy by appeal and great injustice and irreparable harm as prerequisites,
but may proceed directly to the merits of the dispute when doing so promotes
“judicial economy in limiting the breadth of analysis appellate courts undertake
when considering writs.”19
In denying the writ petition, the Court of Appeals held that Brooks had
the ability to appeal the family court’s denial of his motion to amend by
appealing any grant of annulment and the denial of the motion to amend.
Furthermore, the court stated that Brooks had failed to establish the family
court was acting erroneously. While technically correct with regard to Brooks’
rights by appeal, by denying the writ the Court of Appeals caused Brooks to
face two unjust choices. First, he could accept the annulment and, through his
guardian, proceed in a separate civil action against Toney to recover his
property. Alternatively, he could appeal the annulment based on the family
court’s denial of the motion to amend, likely resulting in a series of appeals
ending with the parties seeking this Court’s reexamination of Johnson. Either
choice proceeds against a backdrop where Brooks is being cared for as a ward
of the state without the comforts that the resources he accumulated through
his life should afford him. Delays also increase the risk of Toney, despite any
possible court orders to the contrary, further dissipating the assets she
controls and increasing the difficulty of tracing those that she may have
19 Caldwell, 464 S.W.3d at 145, 146 n.16 (quoting So. Fin. Life Ins. Co. v.
Combs, 413 S.W.3d 921, 927 n.16 (Ky. 2013)).
8
transferred. Therefore, even should Brooks survive long enough to emerge
victorious under either scenario, the intervening time diminishes the chance
that any resulting judgment can fully or adequately compensate him. Brooks,
therefore, may have a remedy by appeal, but we find the remedy inadequate in
light of the above-described circumstances. Based on those same
circumstances, we further conclude that Brooks’ damages amount to great and
irreparable harm.
While the Court of Appeals incorrectly stated Brooks had an adequate
remedy by appeal, it correctly identified that Brooks had not shown the family
court was acting erroneously. The Court of Appeals was correct that the family
court was not required to accept Brooks’ petition for dissolution, but we base
our holding on different reasoning. The family court understandably relied on
Johnson; however, we hold today that Johnson’s interpretation of the 1942
statutes justifying a complete prohibition of a guardian-initiated dissolution of
marriage is no longer applicable under our current statutory scheme.
In reviewing Johnson and Brooks’ argument to permit guardian-initiated
dissolutions of marriage, we are, “as always, mindful of the value of precedent
and the doctrine of stare decisis.”20 In the interest of stability, stare decisis
directs us to adhere to prior decisions absent “sound legal reasons to the
20 Parker v. Webster Cty. Coal, LLC (Dotiki Mine), 529 S.W.3d 759, 766 (Ky.
2017) (quoting Osborne v. Keeney, 399 S.W.3d 1, 16 (Ky. 2012)).
9
contrary.”21 “But it is not a universal, inexorable command[,]”22 and “[w]hile
stare decisis ‘permits society to presume that bedrock principles are founded in
the law rather than in the proclivities of individuals,’ it does not necessitate
that this Court ‘unquestioningly follow prior decisions’ when we are otherwise
compelled.”23 This is particularly true when such decisions were based on the
interpretation of statutes which have undergone fundamental revisions.
The Johnson Court articulated a firm rule that guardians may not initiate
an action for dissolution of marriage on behalf of their wards.24 This rule
represented the majority rule, in fact almost universal rule, at the time that
such actions were too personal and volitional to permit them to be pursued at
the pleasure of a guardian, even if it resulted in a marriage that was
“indissoluble on behalf of the incompetent.”25 That Court relied on the fact that
the guardianship statutes of the Commonwealth were general in nature and
held that those statutes were not intended to confer on a guardian the power
over strictly personal and volitional affairs such as marriage.26 The Johnson
Court further held that absent “specific legislative declaration to the contrary,
21 Hilen v. Hays, 673 S.W.2d 713, 717 (Ky. 1984).
22Williams v. Wilson, 972 S.W.2d 260, 269 (Ky. 1998) (Stephens, C.J.,
concurring) (quoting Washington v. W.C. Dawson & Co., 264 U.S. 219, 238 (1924)
(Brandeis, J., dissenting)).
23 Osborne, 399 S.W.3d at 16-17.
24 170 S.W.2d at 890.
25 Id. at 889 (citing 17 A.J. 290).
26 Id. at 890.
10
[a marriage’s] continuance or dissolution should not be dependent on the
pleasure or discretion of a legal representative.”27
This case represents the third time our Court of Appeals has relied on
Johnson. In all three instances, the lower courts felt precluded from ruling for
an appellant seeking a dissolution of marriage but questioned the continued
viability of Johnson’s complete prohibition.28
This Court’s most recent opportunity to address Johnson was in Riehle v.
Riehle.29 In Riehle, the husband was under a guardianship order with his wife
serving as the guardian.30 The husband grew frustrated with his wife’s control
of his assets and filed a petition for divorce.31 The trial court dismissed the
husband’s claim, an action which the Court of Appeals affirmed.32 Both courts
relied exclusively on Johnson for their actions, and the husband appealed to
27 Id.
28 See Brooks v. Hagerty, No. 2019-CA-001589-OA (Ky. App. 2019) (“This Court
agrees that the time has come to reconsider the wisdom of Johnson’s prohibition of
guardians maintaining dissolution actions on behalf of an incompetent person.”);
Riehle v. Riehle, No. 2014-CA-000373-MR, 2015 WL 6560528, *3 (Ky. App. Oct. 30,
2015) (“After performing a lengthy analysis of the public policy implications of such an
action, a majority of the panel nonetheless concluded that this Court was bound by
the Johnson precedent.”); Brockman ex rel Jennings v. Young, No. 2010-CA-001354-
MR, 2011 WL 5419713, *4 (Ky. App. Nov. 10, 2011) (“We believe that the liberalization
of divorce law with the creation of no-fault divorce as well as the expansion of
guardianship powers certainly call in to question the viability of the holding in
Johnson.”).
29 504 S.W.3d 7 (Ky. 2016).
30 Id. at 8.
31 Id.
32 Id.
11
this Court urging us to reverse Johnson.33 Despite the lower courts’ reliance on
Johnson, a majority of this Court found that Johnson was not implicated by the
facts.34 In Riehle, the appellant was not a guardian seeking a divorce on behalf
of its ward but was, in fact, the incompetent spouse seeking a divorce in his
own right.35 Under Kentucky statutes, such an individual cannot maintain the
action in his own right.36 Therefore, the majority found that the issue of
whether Johnson still represented good law was not before the Court and
affirmed the trial court and Court of Appeals, albeit for different reasons.37
Justice Wright, writing for a three-justice concurrence, agreed with the
majority that an individual adjudicated incompetent cannot maintain an action
for dissolution of marriage, but would have addressed the ancillary question of
whether a guardian could maintain such an action on behalf of the disabled
party.38 The concurrence would have permitted the appellant to return to the
district court and seek the appointment of a limited guardian for purposes of
determining whether a dissolution of marriage was in the appellant’s best
interest.39 The concurrence emphasized that Johnson was almost seventy years
old and decided under a legal and statutory regime surrounding both
33 Id.
34 Id. at 9.
35 Id.
36 Id. (citing CR 17.03).
37 Id.
38 Id. at 9-10 (Wright, J., concurring).
39 Id. at 10 (Wright, J., concurring).
12
guardianship and divorce that was “entirely different.”40 The present
guardianship statutes are intended “to provide services for incompetent
persons not only as specifically articulated but also as reasonably inferable
from the nature of the powers of a guardian.”41 “We believe that the
liberalization of divorce law with the creation of no-fault divorce as well as the
expansion of guardianship powers certainly call in to question the viability of
the holding in Johnson.”42 The concurrence would have held that while the
current guardianship statutes do not specifically enumerate a power to initiate
a divorce, such a failure does not automatically preclude a trial court from
permitting such an action under the guardian’s duty “to have full care,
custody, and control of a disabled person” under KRS 387.510.43
With our decision in Johnson, Kentucky joined the majority of
jurisdictions that imposed such restrictions, a majority so overwhelming that it
was almost universal at the time. That majority is no longer nearly universal; it
is even questionable whether it truly represents a majority.44 This shift is
40 Id. (Wright, J., concurring).
41 Id. at 11 (Wright, J., concurring) (quoting DeGrella By & Through Parrent v.
Elston, 858 S.W.2d 698, 704 (Ky. 1993)).
42 Id. (Wright, J., concurring) (quoting Brockman, 2011 WL 5419713 at *4).
43 Id. We note that the current version of KRS 387.510 has revised the guardian
definition to eliminate the specific phrase of “full care, custody, and control.”
44 See Matthew Branson, Guardian-Initiated Divorces: A Survey, 29 J. Am. Acad.
Matrim. Law. 171 (2016). Branson’s survey reveals fifteen states that permit some
form of guardian-maintained divorce. Conversely, only twelve states have case law
explicitly denying such an action in all circumstances. The law in the remaining states
is uncertain, as they either have not directly addressed the issue in the last half
13
particularly evident when specifically considering only the jurisdictions that
have addressed the issue within the past forty years.45 States permitting a
guardian to maintain a dissolution action rely on a statutory basis or a court-
derived right applying the court’s “substituted judgment” or a “best interest”
analysis.46 Many courts analyzing guardianship statutes have not required
such statutes to explicitly permit actions for divorce but instead have relied on
century, or when it has been addressed, it has been in dicta and in such a way as to
call into question whether the state would apply an absolute prohibition.
45 Kurt X. Metzmeier The Power of an Incompetent Adult to Petition for Divorce
Through A Guardian or Next Friend, 33 U. Louisville J. Fam. L. 949 (1995) (“Twelve of
the fifteen states that have examined the issue [guardian-initiated divorce] in the last
two decades have rejected this rule [that such actions were not allowed].”); see
Ruvalcaba v. Ruvalcaba, 850 P.2d 674 (Ariz. Ct. App. 1993); In re Marriage of
Higgason, 516 P.2d 289 (Cal. 1973); Knight v. Radomski, 414 A.2d 1211 (Me. 1980);
Smith v. Smith, 335 N.W.2d 657 (Mich. Ct. App. 1983); In re Parmer, 755 S.W.2d 5 (Mo.
Ct. App. 1988); Kronberg v. Kronberg, 623 A.2d 806 (N.J. Super. Ct. Ch. Div. 1993);
Boyd v. Edw
ards, 446 N.E.2d 1151 (Ohio Ct. App. 1982); In re Ballard, 762 P.2d 1051 (Or.
Ct. App. 1988); Syno v. Syno, 594 A.2d 307 (Pa. Super. Ct. 1991); Murray v. Murray,
426 S.E.2d 781 (S.C. 1993); Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837 (Tex. Ct.
App. 1988); In re Marriage of Gannon, 702 P.2d 465 (Wash. 1985).
46 See generally Ill. Prob. A. § 11a-17 (Circuit court may find by clear and
convincing evidence that divorce is in the ward’s best interest.); Ruvalcaba, 850 P.2d
at 682 (“[W]e therefore find that the ‘substituted judgment’ standard is the appropriate
standard to be applied by a trial court in determining whether a ward desires to
dissolve her marriage in cases, such as this one, where evidence of the ward's desires
when competent exists.”); Vaughan v. Guardianship of Vaughan, 648 So. 2d 193 (Fla.
Dist. Ct. App. 1994) (Florida guardianship statutes are sufficiently broad to permit
guardian-initiated divorce, but such action must incorporate an adversarial hearing to
establish best interest before it may be commenced.).
14
general powers of guardians.47 Such analysis is consistent with the
concurrence’s reasoning in Riehle.48
The guardianship statutes Johnson interpreted were vastly more limited
than today’s statutes and were generally a derivation of the statutes associated
with the guardianship of minors.49 At that time, the specifically enumerated
guardian powers and responsibilities focused on the oversight of the ward’s
property, income, and expenses and lacked any specific guidance regarding the
ward’s personal or civil rights.50 The Johnson Court found that a simple
authority that guardians “may sue or be sued” on behalf of their ward was
insufficient to provide power with regard to such a personal issue as divorce.51
47 See Broach v. Broach, 895 N.E.2d 640, 642 (Ohio App. 2 Dist. 2008)
(concluding that because the statute authorizing a guardian to initiate a suit on behalf
of his or her ward does not explicitly exclude divorce actions, a guardian has the
authority to initiate such actions); Houghton ex rel. Johnson v. Keller, 662 N.W.2d 854,
856 (Mich. App. 2003) (“Nothing in the language of M.C.L. § 552.6 expressly prohibits
guardians from filing a complaint for divorce on behalf of a party to the marriage.”);
Kronberg v. Kronberg, 623 A.2d 806, 810 (N.J. Super. Ch. Div. 1993) (“It is significant
that while the Legislature conferred a broad, nonexclusive list of powers on a
guardian, the only power that was withheld was the power to make a will.”); In re
Ballard, 762 P.2d 1051, 1052 (Or. App. 1988) (concluding that a guardian has the
authority to initiate a divorce action on his or her ward's behalf because the statute
authorizing a guardian to initiate a suit on behalf of his or her ward does not explicitly
exclude divorce actions); McRae v. McRae, 250 N.Y.2d 778, 780 (N.Y. Sup. Ct. 1964)
(“Without some basis for such an implication, we may not assume that the Legislature,
though providing a remedy by action for the failure of a party to carry out matrimonial
obligations, impliedly limited these remedies to a sane spouse.”) (emphasis in original).
48 504 S.W.3d at 11 (Wright, J., concurring).
49 See KRS 387.210 (1942) (the committee’s “power and duty…shall, in all
respects, be the same as those of the guardian of a minor…”).
50 See KRS 387.060(1) (1942) (“A guardian shall have the custody of his ward,
and the possession, care and management of the ward’s property, real and personal.”);
see generally KRS 387.210-286 (1942).
51 KRS 387.130 (1942); Johnson, 170 S.W.2d at 890.
15
Conversely, today’s statutes are much more comprehensive. KRS
387.640(1) imposes a very broad duty on the guardian to “[a]ssure that the
personal, civil, and human rights of the ward are protected[.]” A guardian’s
specific duties include seeing to the ward’s financial well-being,52 providing for
the ward’s care, comfort, and maintenance,53 and consenting to necessary
medical care.54 Notably, while guardians may consent to necessary medical
care, KRS 387.660(3) limits the guardian’s ability when those treatments are of
a highly personal nature such as abortion, sterilization, or amputation. For
these treatments, the guardian must obtain court approval prior to the
treatment unless it is an emergency.55 In a full guardianship, where the
guardian is also serving as the conservator, he or she is responsible for
ensuring the protection and preservation of the ward’s estate and prosecuting
or defending actions and claims in “any jurisdiction for the protection of the
estate’s assets.”56 Guardians must also file an annual report with the district
court summarizing the ward’s current mental, physical, and social condition,
52 See KRS 387.125(6) (“A guardian may institute or defend actions, claims, or
proceedings in any jurisdiction for the protection of the ward's estate.”); KRS
387.680(1) (A conservator has the duty to “[m]anage or assist in managing those
financial resources placed under his supervision and/or control as would a prudent
person managing his own resources[.]”).
53 KRS 387.660(5).
54 KRS 387.660(4).
55 KRS 387.660(3).
56 KRS 387.700(1). The authorized types of guardianships and conservatorships
are delineated in KRS 387.590.
16
and upon review, the court may “take whatever action it considers necessary to
enhance the well-being of the ward.”57
In reviewing Kentucky’s guardianship statutes, we conclude that the
legislative changes since Johnson render continued reliance on Johnson’s strict
prohibition of a guardian-initiated divorce unwarranted. The expanded
guardian duties, coupled with a more complex elder law environment, make
Johnson inapplicable to the current legal environment. We overrule Johnson to
the extent it prohibits a guardian from initiating a dissolution action on behalf
of a ward. However, we continue to agree with Johnson’s defining statement
that the dissolution of a ward’s marriage “should not be dependent on the
pleasure or discretion of a legal representative.”58 As such, we view a
dissolution of marriage as more analogous to the personally invasive medical
procedures identified in KRS 387.660(3), and a guardian may not initiate such
actions unilaterally. KRS 387.530 vests the district courts with exclusive
jurisdiction over all guardianship proceedings. Therefore, a guardian may seek
permission from the district court overseeing the guardianship to initiate a
dissolution of marriage action on behalf of his or her ward. The district court
shall hold a hearing to determine if such an action is in the ward’s best interest
and if so satisfied may authorize the guardian to file such an action with the
family court consistent with its authority and responsibility under KRS
57 KRS 387.670.
58 Johnson, 170 S.W.2d at 890.
17
387.670(3). The ward should be permitted to “participate to the maximum
extent of his abilities.”59 If feasible, the hearing should include an opportunity
for the competent spouse to offer evidence as to why the dissolution of
marriage is not in the ward’s best interest. Where the petitioning guardian
stands to personally benefit from his ward’s divorce, the court may appoint a
limited guardian for purposes of representing the ward’s interest in the matter.
We have accepted Brooks’ rendition of the facts as true pursuant to CR
76.12, but no district court has made a best interest determination as to the
matter of Brooks’ divorce. To pursue a dissolution of marriage action, Brooks,
through Elderserve, must establish facts sufficient for the district court
overseeing his guardianship to find a dissolution of marriage action on his
behalf is in his best interest. If the district court makes such a finding, the
court shall authorize Elderserve to file a petition for dissolution with the
Jefferson Family Court. This matter shall be expedited.
IV. CONCLUSION
For the aforementioned reasons, we affirm the Court of Appeals’ denial of
the writ petition. Should Brooks follow the procedure outlined in this Opinion
and obtain a favorable finding from the district court, he can again petition the
Jefferson Family Court for a dissolution of marriage.
All sitting. All concur.
59 KRS 387.640(2).
18
COUNSEL FOR APPELLANT:
Teresa M. Kinberger
APPELLEE:
Honorable Tara Wigginton Hagerty, Judge
Jefferson Circuity Court, Family Division 5
COUNSEL FOR APPELLEE/REAL PARTY IN INTEREST, TAYLOR TONEY:
Richard Hafford Nash, III
COUNSEL FOR AMICI CURIAE, GADD, FORMER COMMISSIONER OF THE
KENTUCKY DEPARTMENT FOR AGING AND INDEPENDENT LIVING; AND
KENTUCKY GUARDIANSHIP ASSOCIATION, INC:
Shari Polur
COUNSEL FOR AMICUS CURIAE, NATIONAL ACADEMY OF ELDER LAW
ATTORNEYS, INC.:
Marianna Joy Michael
19