Family Judge's Refusal to Consider a Pre-Dissolution Mental Evaluation Is an Abuse of Discretion

Timothy Kowal, Esq.
July 14, 2021

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination."

Despite repeated objections by the wife that the husband's recent life-threatening injuries had caused a behavioral change and mental disturbance affecting his capacity, the family judge in In re Marriage of Hermes (D4d3 Jun. 16, 2021) no. G058623 (nonpub. opn.) had credited the husband's attorney's improvident view that the family court does not need to determine capacity issues.

In fact, yes, the family court does need to adjudicate claims of mental capacity. Mental capacity is required to enter into a valid marriage (Dunphy v. Dunphy (1911) 161 Cal. 380, 383-384) and likewise is required to end one (In re Marriage of Greenway (2013) 217 Cal.App.4th 628, 639, 643 (Greenway)). Lack of capacity therefore can be raised as a defense to a petition for dissolution of marriage. (See Fam. Code, § 2122, subd. (d) [judgment of dissolution of marriage may be set aside on the ground of mental incapacity]; Greenway, supra, at p. 639.) The requisite mental capacity must be maintained throughout the dissolution action. (In re Marriage of Straczynski (2010) 189 Cal.App.4th 531, 540.)

The wife timely and repeatedly raised the defense of mental incapacity. She offered a letter from a psychiatrist. She offered evidence of her husband's three recent life-threatening bicycling injuries and behavioral changes that followed. But the husband's attorney insisted the family court had no discretion to decide that issue, which must be raised in a conservatorship petition in the probate court, and the family judge agreed.

In this, the family court abused its discretion. “[I]f a trial court's decision is influenced by an erroneous understanding of applicable law or reflects an unawareness of the full scope of its discretion, it cannot be said the court has properly exercised its discretion under the law.” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15; see People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8; In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [“discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action”].) “ ‘[A] discretionary order based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion and is subject to reversal even though there may be substantial evidence to support that order. [Citations.] If the record affirmatively shows the trial court misunderstood the proper scope of its discretion, remand to the trial court is required to permit that court to exercise informed discretion with awareness of the full scope of its discretion and applicable law.’ ” (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 334, quoting F.T. v. L.J., supra, 194 Cal.App.4th at p. 16.)

Also the mental capacity for a conservatorship is not the same as that for marriage, such that a person may be subject to a conservatorship and still have capacity to enter into or dissolve a marriage. So it was no answer for the family judge to shuffle the case off to probate court.

What is more, the failure to exercise discretion in this case was per se reversible error. (A "per se" error means a legal error that is reversible on appeal without the need to establish the error resulted in prejudice to the appellant.) (F.T. v. L.J., supra, 194 Cal.App.4th at p. 16 [if court misunderstood the scope of its duty, “remand to the trial court is required to permit that court to exercise informed discretion”].)

The court summed up: "Lack of capacity is a defense to marital dissolution, and the trial court had the authority, indeed an obligation, to address the issue of Wayne's capacity and make a finding on the subject. The trial court erred by failing to do so."

To the husband-respondent's frustrations about the delays caused by the appeal, the court had this to say:

"In his respondent's brief, Wayne states he is “just trying to be divorced from Julie” and the appeal has “waste[d] assets from our estate.” His concerns might never have arisen had the trial court exercised its authority to make a capacity determination. As a panel of this court stated in a somewhat different context: “We recognize one result of reversal is to perpetuate an unstable [marital] relationship: all the more reason why it is important to adhere to the correct procedures and provide a fair hearing in the first instance.” (In re Marriage of Seagondollar (2006) 139 Cal.App.4th 116, 1120.)"

In the trial court, there is much to be said for the Al Davis rule: "Just win, baby." But leading the trial court to misunderstand its legal obligations should be regarded an exception to that rule.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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