Charles E. Brooks by Elderserve, Inc. v. Hagerty

614 S.W.3d 903

Charles E. BROOKS BY ELDERSERVE, INC., Legal Guardians, Appellant

v. Honorable Tara HAGERTY, Jefferson Circuit Court Judge, Family Division 5, AppelleeandTaylor Toney, Real Party in Interest

2020-SC-0065-MR

Supreme Court of Kentucky.

JANUARY 21, 2021

COUNSEL FOR APPELLANT: Teresa M. Kinberger, Louisville.

APPELLEE: Honorable Tara Wigginton Hagerty, Judge, Louisville, Jefferson County, Jefferson Circuity Court, Family Division 5.

COUNSEL FOR APPELLEE/REAL PARTY IN INTEREST, TAYLOR TONEY: Richard Hafford Nash, III, Louisville.

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, Louisville.

OPINION OF THE COURT BY JUSTICE KELLER

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 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.

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 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 pursuant to CR ⁶ 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, 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 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...