Challenging Capacity

• Publication year: 2020
• Author: Justin O'Connell, CFLS

Challenging Capacity

Justin O'Connell, CFLS

Justin M. O'Connell is a partner at Cavassa O'Connell, located in Monterey, California, where his practice includes family law and civil litigation. Mr. O'Connell is a Certified Family Law Specialist, served as a Commissioner on the California State Bar Family Law Advisory Commission from 2012 to 2015, and is currently the Legislation Chair of the California Lawyers Association Family Law Executive Committee (FLEXCOM). He has been the professor of Property Law at the Monterey College of Law since 2007, and a member of the Alternative Dispute Resolution Executive Committee for the Monterey County Superior Court since 2013.

On occasion, the trial court must adjudicate the capacity of a party to seek a dissolution of his or her marriage. This situation most often arises where the respondent does not desire to end the marriage and contends the petitioner does not have the capacity to do so.¹When faced with this task, the trial court must focus on the applicable standard, the burdens of proof, and the relevant evidence.

There are many standards of capacity: to contract, to make a will, to make a trust, and to take other actions. However, the standard of capacity to end one's marriage is a unique measure due to the type of decision one is making. This is because terminating such an intensely personal relationship is accompanied by a profound emotional impact and constitutes the severance of an inter-personal bond that individuals and our society hold to be of enormous significance. To properly adjudicate the capacity to end one's marriage, the trial court should be aware of the applicable capacity standard, the burden of proof to meet that standard, and proper evidence used in the evaluation of capacity. The attorney representing the party whose capacity is being challenged should be prepared to carefully walk the trial court through the analysis and prevent straying from the applicable standard or introduction of irrelevant evidence. The attorney representing the party that is challenging capacity should be prepared to meet the associated high burden to proof.

The Higgason Capacity Standard

In Marriage of Higgason² the California Supreme Court set forth the two-prong standard by which the trial court is to determine whether a party has the capacity to end his or her marriage. The standard centers on evaluating whether:

1. the party can form the desire to end the marriage, and
2. the party has the ability to express that desire.

As will be discussed further below, this standard is not based on whether an objective observer thinks the marriage should end, or whether there have been objective factors that might justify ending a marriage (e.g., arguments, infidelity). In our no-fault dissolution system, the trial court is not tasked with evaluating whether there are good reasons to end the marriage, but instead whether a party wants the marriage to end.

In Higgason, when the parties married, the wife was seventy-three years old and the husband was fourty-eight. Fifteen days after they married, the wife was adjudicated incompetent and a conservator was appointed. About two years later, the wife filed a petition for annulment or dissolution of the marriage. The proceeding was instituted in the wife's name by her guardian ad litem, though the wife signed her petition. The wife also signed two declarations in support of her request for an order to exclude the husband from her home.

At the hearing on the wife's request to exclude the husband, evidence was presented that the wife was ill and confined to bed under a doctor's care. The trial court granted the wife's request, and commented, "The woman [wife] is not insane. She is not without ability to think."

The wife's counsel later took the wife's deposition during which the wife testified to the facts of the marriage and to irreconcilable differences and stated that as far as she was concerned the marriage was over.³ At the hearing on the petition for dissolution, the wife was unavailable due to health issues, so the deposition testimony was introduced into evidence, and the trial court granted the wife's petition. A judgment terminating the marital status was later entered.

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On appeal, the Higgason court addressed the question of whether a party who has diminished capacity may obtain a dissolution of judgment from his or her spouse. In finding such a party can, the Higgason court set forth the following two-prong standard:

Such a

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