Pulos v. Pulos

California Court of Appeal Apr 19, 1956 No. Civ. 21571Published

Before: Shinn

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Holding. A guardian ad litem may not maintain an action for divorce on behalf of an incompetent person, but may maintain an action for separate maintenance. The court further held that the presumption of marriage arising from parties holding themselves out as husband and wife is sufficient evidence to support a support award.

Issues

May a guardian ad litem maintain an action for divorce on behalf of an incompetent person?
May a guardian ad litem maintain an action for separate maintenance on behalf of an incompetent person?
Is the presumption of marriage arising from parties holding themselves out as husband and wife sufficient to support an award for support?

Disposition. affirmed

Quotations verified verbatim against the opinion

“a suit for divorce must be regarded as one which is so strictly personal that it cannot be maintained at the pleasure of a guardian or committee of an insane person.”

“We can conceive of no reason why an incompetent wife may not, through a guardian ad litem, sue for separate maintenance.”

“A presumption, as evidence, is sufficient to sustain a verdict or judgment for the party in whose favor the presumption operates.”

SHINN, P. J.

The trial court made an order requiring Aleck Pulos, defendant, to pay to R. R. Watson, guardian

ad litem

of Hettie Alma Pulos, an incompetent person, $100 per month pendente lite for support, $25 costs, and $350 as attorney’s fees. Defendant appeals from this order.

An action for divorce was instituted on behalf of Hettie by her guardian

ad litem

seeking a division of community property, support, costs, and attorney’s fees. In a second cause of action it was alleged that the parties had made a property settlement agreement, that Hettie had executed to defendant a deed to certain real property situated in South Pasadena and that the property settlement and deed were procured by defendant through the exercise of undue influence. The prayer also sought annulment of the agreement and deed. The answer denied the allegations that the parties were husband and wife and while admitting they had owned the real property as joint tenants and had entered into an agreement pursuant to which Hettie conveyed her interest to defendant, denied the allegations of the use of undue influence. The order from which the appeal is taken was made on the hearing of an order to show cause.

The grounds of appeal are that a guardian

ad litem

of an incompetent person may not maintain an action for divorce, that there was insufficient evidence of a marriage, and that the award under the circumstances was an abuse of discretion.

Plaintiff concedes that a guardian

ad litem

may not maintain an action for divorce on behalf of his ward. It was so held in

Cohen

Cohen,

73 Cal.App.2d 330 [166 P.2d 622]. In that ease the court adopted the view that a suit for divorce must be regarded as one which is so strictly personal that it cannot be maintained at the pleasure of a guardian or committee of an insane person. (P. 335.) It is a sufficient reason for taking the same view in the present case that there was no evidence that Hettie had requested the institution of an action for divorce or that she was competent to exercise sound

Pulos v. Pulos

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SHINN, P. J.

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