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ELMER RIEHLE

ON REVIEW FROM COURT OF APPEALS
V. CASE NO. 2014-CA-000372-MR
BOONE CIRCUIT COURT NO. 13-CI-O 1335

CAROLYN RIEHLE APPELLEE

OPINION OF THE COURT BY JUSTICE CUNNINGHAM

AFFIRMING

Elmer Riehle wants a divorce from his Wife.

He and Carolyn have been married over 30 years. He is now over 88
years of age. Carolyn is now approximately 72. After a jury trial in 2008,
Elmer was declared incompetent in the Boone District Court. Carolyn was
appointed as his guardian and conservator.

An aborted attempt was made the following year to have the disability
removed. That effort was abandoned When he was diagnosed with Frontal Lobe
Dementia.

Again in 2010, Elmer made an effort to remove the guardianship.
Following a second jury trial, he Was once again declared incompetent And,

once again, Carolyn was reappointed as his guardian.

Elmer grew frustrated and agitated with Carolyn having control over his
assets and filed a petition for dissolution of marriage, individually and in his
own right. Carolyn filed a responsive pleading strenuously objecting to the
divorce and citing Elmer’s profligate wasting of marital assets by engaging in
reckless and ill advised “get rich” schemes so radically off the charts as to
prove his mental incompetence

The trial court dismissed Elmer’s petition for dissolution of marriage on
the basis that in Kentucky a person who has been declared incompetent
cannot bring a legal action in this state. The Court of Appeals affirmed the
dismissal. Both lower courts relied exclusively on the 1943 case of Johnson v.
Johnson, 294 Ky. 77, 170 S.W.2d 889 (1943).

Elmer now asks this court to reverse the Court of Appeals as Well as the
Johnson decision of over 60 years ago.

The issue of whether a case should have been dismissed for failure to
state a claim raises a question of law and is reviewed de novo. Fox v. Grayson,
317 S.W.3d 1 (Ky. 2010).

We affirm both the trial court dismissal and affirmation by the Court of
Appeals. However, we reach this result on different grounds. The dismissal by
the trial court as well as the decision of the Court of Appeals rely solely on the
Johnson case. However, we hold that independent of that decision, the case is
procedurally flawed.

Civil Rule 17.03(1) requires that “[a]ctions involving unmarried infants or

persons of unsound mind shall be brought by the party’s guardian or

committee . . . .” This rule is steeped in our common law and is based on
studied experience. See generally Howard v. Howard, 9 S.W. 411 (Ky. 1888) _
(providing an exhaustive history); see Miller v. Cabell, 81 Ky. 178 (Ky. 1883).
Indeed, the codification of this rule can be traced back as far as 1876 in
Section 35 and 36 of the Civil Code of Practice, the precursor of the Kentucky
Rules of Civil Procedure. In 1'953, our predecessor Court adopted Section 35
and 36 into what is now Civil Rule 17.03.

“Unsound mind,” as used in CR 17.03(1), simply means that a person
has been so adjudicated, a requirement the lower courts fulfilled on two
occasions. Straney 1). Straney, 481 S.W.2d 292 (Ky. 1972).

Unlike Johnson, this action was not brought by the guardian. It was
brought by the judicially declared incompetent in his own name.

The Appellee erroneously raises this issue through a standing argument,
claiming that CR 17.03(1) clearly bars the Appellant from bringing this action
in his own name.

We have defined standing as “a requirement that a party have a judicially
recognizable interest in the subject matter of the suit.” Harrison v. Leach, 323
S.W.3d 702, 705 (Ky. 2010). In more understandable terms, a person usually
has standing if that party has a substantial interest in the subject matter of the
litigation and they will be aggrieved by an adverse ruling by the court. Rose v.
Council for Better Education, Inc., 790 S.W.2d 186, 202 (Ky. 1989).

Appellant obviously has an interest in pursuing a divorce. Therefore,

“standing” is not the issue in this case. The Appellee was entitled to have the

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action dismissed simply because existing law does not allow the Appellant to
bring this action in his own name.

The trial court dismissed the case because of the 1943 case of Johnson,
294 Ky. 7 7 , 170 S.W2d 889. That case held that a petition for divorce is such
a personal matter that a guardian cannot maintain that action on behalf of the
ward. That question, no matter how much attention the parties and courts
below have given it, is not before us. The guardian is not bringing this action
as required by CR 17.03(1), All the pleading and argument to the contrary,
there is not a Johnson issue in this case.

We recognize the bar of the Civil Rule presents a peculiar conundrum for
the Appellant. He is suing his guardian in her individual capacity for a result
to which she objects. His guardian is not going to file on his behalf asking for
the same relief against herself.

We believe, however, that this dilemma is clearly and exclusively within
the purview of our legislature and rule making process.

Conclusion

For all the above stated reasons, the result of the Court of Appeals’
opinion is AFFIRMED.

All sitting. Minton, C.J.; Keller, and Venters, JJ., concur. Wright, J.,
concurs by separate opinion in which I-Iughes and Noble, JJ., join.

WRIGHT, J., CONCURRING: I agree with the majority insofar as it holds
that Appellant, as a disabled person, may not file the divorce action on behalf

of himself. However, I would go further and overrule Johnson.

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I believe that if Appellant returns to district court seeking a guardian for the
divorce action, and the district court finds that Appellant is still under a
disability requiring a guardian, it should, in the least, appoint a limited
guardian for the divorce action (as his current guardian’s interests conflict with
his own insofar as the divorce). The newly-appointed guardian would then
have the responsibility to determine Appellant’s best interests-keeping in
mind that, if Appellant is still disabled, he will not by virtue of the divorce
regain the ability to make financial decisions for himself. In making this
determination, the guardian must keep in mind the uniquely personal and
emotional nature of a divorce action. It may be the case that even if it would
seem in other ways to be in Appellant’s best interests that he stay married to
Carolyn, that it is not in the best interests of his emotional health.

The guardian must carefully weight Appellant’s personal dignity and the
unique nature of the dispute in making the best interests determination,
Disabled persons are still, first and foremost, persons. They deserve the same
basic human dignity and respect the rest of us enjoy. That dignity must
include the ability to leave an irretrievably broken marriage_just as anyone
else could. If the guardian decides the divorce action is, in fact, in Appellant’s
best interests, I believe that guardian should then be able to properly file the
divorce petition on Appellant’s behalf in the family court. However, because
this procedure was not followed, I concur with the majority’s result. As a

disabled person, Appellant simply could not file the suit on his own behalf.

Shifting my attention to Johnson, 294 Ky. 77, I note that case was
decided more than seventy years ago at a time when no-fault divorce was not
the law of the Commonwealth. After holding that guardians could not bring a
divorce action on behalf of a disabled individual, the Johnson Court noted: “It
may be that in some cases a hardship will be worked by the conclusion we
have reached_such may be the case here-but stability of the marriage
relation is a matter of public concern and, in the absence of specific legislative
declaration to the contrary, its continuance or dissolution should not be
dependent on the pleasure or discretion of a legal representative.” Id. The law
surrounding divorce was entirely different in 1943, as was the public concern
surrounding “the stability of the marriage relation.” Id. Not only have our
statutes changed, but our world has changed as well. More than seventy years
later, I no longer see the public’s concern in the stability of marriage as
trumping the best interests of a disabled individual.

My reasoning behind this change becomes clear when you look to the
recent Court of Appeals case of Brockman ex rel. Jennings v. Young, No. 2010-
CA-001354-MR, 2011 WL 5419713 (Ky. Ct. App. Nov. 10, 2011). In Brockman,
just such a hardship as hypothesized by the Johnson Court came to fruition.
When Brockman and Young married, Brockman suffered from Alzheimer’s
disease. A year after the couple exchanged their vows, the Cabinet for Health
and Family Services opened an investigation into Young’s possible financial
exploitation of Brockman. Following this investigation, Brockman’s daughters

filed a petition in district court to determine whether a guardian should be

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appointed for their mother. Initially, the court appointed Young as Brockman’s
guardian. However, two years later, Brockman’s daughters filed a motion to
remove Young as guardian after he stopped making payments to the nursing
facility where their mother resided. Young voluntarily relinquished his
guardianship and the trial court named Brockman’s daughters as her co-
guardians.

The next year, Brockman, by and through her co-guardians, filed a
motion for dissolution of her marriage to Young, Young filed a motion to
dismiss, claiming that Brockman’s guardians lacked the legal authority to file
for divorce on Brockman’s behalf. The trial court granted the motion to
dismiss and the Court of Appeals affirmed, albeit reluctantly, stating:

While we must conclude that the trial court properly found that Johnson
controls the matter herein, we agree with Brockman that modern developments
in the law have begun to erode the underpinnings of this rule. 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. Brockman, at *4. However, in spite of its strong
language, the Court of Appeals acknowledged its inability to overrule Johnson.
This Court, however, possesses the power to overrule Johnson_and I would
exercise that power and do so now.

As this Court held in DeGrella By & Through Parrent v. Elston, 858
S.W.2d 698, 704 (Ky. 1993), “[w]e view the statutes related to ‘Guardianship

and Conservatorship for Disabled Persons,’ KRS 387.500 et seq., as remedial

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rather than exclusive. These statutes intend 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 . . . .” This Court has
also held that “[t]he right to act for the incompetent in all cases has become
recognized in this country as the doctrine of substituted judgment and is broad
enough not only to cover property but also to cover all matters touching on the
well-being of the ward.” Strunk v. Strunk, 445 S.W.2d 145, 148 (Ky. 1969).

Therefore, I do not view the fact that the guardianship statutes do not
specifically delineate the power to file a divorce action on behalf of a disabled
person as one of the guardian’s enumerated powers as fatal. In fact, our
statutes make it clear that “‘[g]uardian’ means any individual, agency, or
corporation appointed by the court to have full care, custody, and control of a
disabled person and to manage his financial resources.” KRS § 387.510(0). To
read the phrase “full care, custody, and control” to include the ability to
institute divorce proceedings on behalf of the ward is not a stretch.

Hughes and Noble, JJ., join.

COUNSEL FOR APPELLANT:

Steven Joseph Megerle

COUNSEL FOR APPELLEE:

Michael Taylor McKinney

