February 4, 1986
Subject:
Divorce; Incompetency of defendant.
Requested By:
James Lee Knight Clerk of Superior Court Guilford County
Question:
May a plaintiff pursue a divorce option under N.C.G.A. 50-6 where, after the parties have separated, the defendant sustained injuries bringing into question this competency?
Conclusion:
Yes.
This inquiry relates to a divorce action instituted on August 19, 1985, pursuant to N.C.G.S. 50-6. Plaintiff wife and defendant husband separated on August 7, 1984. On August 11 of that year, defendant husband was involved in a motorcycle accident in which he sustained massive head injuries. A guardian ad litem was appointed to represent defendant husband in the divorce proceeding. The application for appointment of a guardian stated that the injuries in question were "believed to be of a permanent and debilitating nature" and that defendant husband was "believed to be a person incapable of handling his own affairs. . . ." The order similarly stated defendant husband "is a person believed to be incapable of conducting his own affairs and is entitled to the appointment of a guardian ad litem."
The question arising from these facts is whether a plaintiff is entitled, under such circumstances, to proceed under N.C.G.S. 50-6? Alternatively, does the fact that the defendant sustained injuries bringing into question his competency after the date of separation, before which there was no question or issue of competency, require the plaintiff wife to proceed under N.C.G.S. 50-5.1?
North Carolina now has only two grounds for divorce. Under N.C.G.S. 50-6, a divorce may be obtained "when the husband and wife have lived separate and apart for one year" and other requirements are met. Under N.C.G.S. 50-5.1, the husband and wife must "have lived separate and apart for three consecutive years, without cohabitation," and they must be "still so living separate and apart by reason of the incurable insanity of one of them" at the time of the divorce proceeding. (Emphasis added.)
North Carolina appellate courts have considered the issue of divorce from an insane or incompetent spouse on several occasions. In Lawson v. Bennett, the Supreme Court ruled that a plaintiff husband could not obtain a divorce based on a two-year separation from an insane spouse where the insanity arose sometime prior to the separation, the court’s theory being that the General Assembly had provided a specific remedy to be followed in the event that one spouse was insane and that that remedy was exclusive. There was some evidence there to indicate that the defendant was incurably insane or at least that the prospects for recovery or a cure were not good. 240 N.C. 52, 81 S.E.2d 162 (1954). Mabry v. Mabry required the court to construe the language in the predecessor version of the statute granting divorce because of a separation resulting from the incurable insanity of one spouse, then requiring that the defendant be confined for five consecutive years immediately preceding the divorce action. However, the court there indicated that the right to a divorce under this statute "is bottomed on the ground of incurable insanity, and such insanity must have been the reason for the separation of the parties." 243 N.C. 126, 129, 90 S.E.2d 221 (1955). In Moody v. Moody, the Supreme Court considered a case involving an action brought on the grounds of a two year separation against a defendant husband who had sustained brain injuries on the very day of the separation. The court concluded that the separation at issue in Moody, "took place because of the brain injury and not by reason of mutual consent." 253 N.C. 752, 757, 117 S.E.2d 724 (1961). Under those circumstances, the provision for divorce "by reason of" the incurable insanity of the defendant was the exclusive remedy, and plaintiff was not entitled to a divorce based on a two-year separation.
Both the language of N.C.G.S. 50-5.1 and prior case law, based on predecessor statutory provisions, establish that plaintiff could not proceed under N.C.G.S. 50-5.1. Defendant’s incompetence is a result solely of injuries sustained in an accident occurring after the parties had separated. The separation clearly was not "by reason of" defendant’s incompetence. As previously indicated, the Supreme Court in Mabry, supra, clearly indicated that the predecessor of 50-5.1 applied only where the separation resulted from or was occasioned by the incompetence and, in Moody, stated on more than one occasion that the separation arose by reason of the defendant’s incompetence. It thus appears that the provisions of G.S. 50-5.1 are not available to a plaintiff to obtain a divorce from an incompetent spouse where the separation occurred prior to the onset of the incompetence. (One might also argue that a statute relating to divorce from an incurably insane defendant is irrelevant in the situation in which an incompetence is caused by a brain injury, but the Supreme Court appears to have construed the language of the predecessor to
N.C.G.S. 50-5.1, which also referred to the defendant’s incurable insanity, as encompassing an incompetence caused by a brain injury. See Moody v. Moody, supra.)
There may yet be some questions about the availability of a divorce based on a year’s separation to a plaintiff who separated from a defendant prior to the defendant’s incompetence. In Moody the Supreme Court quoted language from an A.L.R. annotation indicating that a divorce based on separation for a specific period of time may not be obtained unless both spouses were competent throughout the entire period of the separation. The court also noted that in cases of separation arising by reason of mental incompetence not amounting to incurable insanity, the separation would not be ground for divorce. See Moody, 253 N.C. at 756.
Despite the existence of some basis for suggesting that plaintiff may not have a remedy, there are several reasons why, in the circumstances posed here, plaintiff should be allowed to pursue her divorce action. First, not every brain injury resulting in incompetency to manage one’s affairs constitutes an impairment "to such extent that defendant does not understand what he or she is engaged in doing, and the nature and consequences of the act," the standard for determining a defendant’s ability to have the mental capacity and intent necessary to bar an action based on separation. Moody, 253 N.C. at 756, citing Lawson v. Bennett, supra. Secondly, Moody is twenty five years old, and the other major cases in this area are even older. While some of them included dicta relating to the situation in which the incapacity is incurred after the separation is initiated, none of them turned on that issue. Lee, in his treatise on North Carolina Family Law, expresses a strong opinion that a sane plaintiff may seek and obtain a divorce from an insane defendant under
N.C.G.S. § 50-6, pointing out the strong criticism leveled at Moody and the significant changes in the nature of divorce based on a year’s separation with the recent moves toward a pure no-fault divorce aimed at ease of terminating a marriage after the parties have decided to live apart. 1 Lee on Family Law, § 72, 1985 Supp. It would be ironic indeed to conclude that a plaintiff was forever bound in marriage to an incompetent spouse if the parties separated prior to the defendant’s becoming incompetent while permitting plaintiffs to obtain divorces from insane spouses where the incompetence occurred prior to any separation. Nothing in the language of the statutory provisions require such a result, and in the absence of a definitive decision based on a factual situation in which the incompetence occurred after the separation and under the divorce provisions as amended by the General Assembly and interpreted in recent years by you appellate courts, a plaintiff should be able to proceed under N.C.G.S. § 50-6 to obtain a divorce from an incompetent spouse if the incompetence arose after the date of separation.
Lacy H. Thornburg Attorney General
Norma S. Harrell Assistant Attorney General