The question in this action is whether the mother of an adult comatose mental incompetent should be appointed as his guardian ad litem for the purpose of suing his wife for divorce on the ground of adultery.
The incompetent, Lawrence Jennings, is a young man in his mid-20s. On August 21, 1976, while fully competent, he was lawfully married to Tammy Jennings. Thereafter, the young couple lived together as man and wife in Morris County until January 10, 1978, when Lawrence Jennings entered the Dover General Hospital for what was believed to be relatively routine surgery. While being prepared for surgery on January 13, 1978, Jennings experienced cardiac arrest. For critical minutes the flow of oxygen to his brain was severely reduced and he suffered massive and irreversible brain damage.
From January 13, 1978 until the present time, Lawrence Jennings has been comatose. He is presently a patient in a
nursing home. Although he is able to breathe without mechanical assistance, he is totally immobile and unconscious. In order to be certain of his precise condition, with the consent of counsel I made a visit to Jennings's bedside on September 29, 1981. From the documentary evidence presented to me, and from my own observations, I am convinced that Lawrence Jennings has no intellectual functioning and that he is totally lacking in emotional sensitivity or response to his surroundings and to events.
In previous court proceedings Jennings has been adjudged mentally incompetent, and his wife Tammy Jennings, with the consent of his mother, has been appointed as the guardian of his person and property.
On September 16, 1981 Fanny Jennings, the mother of Lawrence Jennings, filed a petition seeking to be appointed as his guardian ad litem for the purpose of bringing a divorce action against his wife. The mother alleges that the wife has been guilty of adultery. The adultery is alleged to have occurred after the tragic accident. There is no claim that the marriage between Lawrence and Tammy Jennings was initially invalid or that the wife committed any marital wrong before the incapacitating accident.
It is to be noted that I am not presently being asked to decide whether Tammy Jennings has committed adultery. I am being asked to approve the appointment of Fanny Jennings as guardian ad litem for her son so that she may then attempt to get a divorce for him by proving his wife's adultery. The question presented in this case has never been decided by a New Jersey appellate court. In Niland v. Niland, 96 N.J. Eq. 438 (Ch. 1924), Chancellor Walker, sitting as a trial judge, ruled, at least preliminarily, that the parents of an underage woman who went through a marriage ceremony did not have standing to seek an annulment of her marriage. In making his ruling the Chancellor stated that "The remedy of divorce (and equally of nullity) and the right to seek it belong exclusively to one or other of the
spouses." Id. at 440. There are approximately 22 other states in which this kind of question has been decided in officially reported court decisions. The overwhelming majority of those states have decided that the guardian of an incompetent person may not sue for divorce on his behalf.
The many courts which do not permit divorce actions by a guardian stress the personal nature of a claim for divorce. No marital failing works an automatic destruction of a marriage. Of critical significance is a person's reaction to and evaluation of the actions of his spouse. This reaction and this evaluation are intensely personal to each individual. Most courts have viewed the decision to seek a divorce as so strictly personal that they do not permit it to be made by anyone acting in a representative capacity. The few courts that have permitted suits by a guardian have relied upon statutory provisions or upon a desire not to leave an incompetent spouse open to unremedied misconduct against him by the other spouse. See Annotation, "Power of Incompetent Spouse's Guardian, Committee, or Next Friend to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make a Compromise or Settlement in Such Suit," 6 A.L.R.3d 681.
In the briefs filed with me, counsel have analyzed at some length the rulings of the New Jersey Supreme Court in the cases of In re Grady, 85 N.J. 235 (1981), and In re Quinlan, 70 N.J. 10 (1976). The Grady and Quinlan cases involved incompetent people, but the specific issues presented in them are very different from the present issue. The same is true of the other New Jersey cases mentioned by counsel. In Quinlan and other cases New Jersey courts have permitted guardians to make, or to participate in making, critical decisions on behalf of incompetents unable to make decisions for themselves. However, there are no New Jersey decisions which give clear and specific guidance to me in ...