The Fourth District Court of Appeal yesterday revived a divorce petition by an elderly Alzheimer’s patient adjudged to be incompetent.
Div. One explained that the trial court had erred in dismissing the petition sua sponte without providing the parties with adequate notice and without first determining whether Evelyn Straczynski was capable expressing an intent to obtain a dissolution of her marriage on account of irreconcilable differences.
Straczynski began divorce proceedings in August 2005, but her husband, Charles Straczynski, alleged in his response that she suffered from Alzheimer’s disease, dementia and was “not truly aware of what she is doing at this time.”
Evelyn Straczynski was placed in an assisted living program that November, but when San Diego Superior Court Judge David B. Oberholtzer interviewed her, he found she had “sufficient capacity to determine she wanted a divorce.”
Over the course of the next two years, Oberholtzer ruled on a number of motions, finding, among other things, that a 1986 prenuptial agreement was enforceable and that Straczynski’s husband was obligated to pay her half of the proceeds of the sale from the family home plus an additional $265,000. Oberholtzer also ordered the husband to pay all expenses associated with Straczynski’s care and medications.
Interesting discussion of civil and probate issues, and the meaning of accommodation for a disability.