This case raises, for only the second time in New Jersey, the issue of whether a guardian has the power to maintain an action for divorce on behalf of an incompetent. The prior case, In re Jennings, 187 N.J. Super. 55, 453 A.2d 572 (Ch.Div.1981), held that the mother of an incompetent was not entitled to be appointed as guardian for her son for the purpose of filing a suit for divorce against her daughter-in-law based upon allegations of adultery. This court has determined that Jennings may be factually distinguished from the case sub judice and holds that a guardian can maintain a suit for divorce on the nofault ground of separation. The issue presented in this case has never been decided by a New Jersey appellate court.
The factual background upon which this decision is predicated is largely undisputed. Sophie and Louis Kronberg were married on October 25, 1931. They have three emancipated children: Martin, Diane and Barbara.
In April 1991, a complaint was filed in the Chancery Division, Essex County, seeking to declare Sophie, "to be mentally incompetent as a result of Parkinson's Disease", and to have the
plaintiffs in that action, her three children, appointed as guardians of her person and property.
The complaint for the appointment of the guardians was supported by an affidavit from two medical doctors. In an affidavit dated April 3, 1991, one of the doctors stated:
Mrs. Kronberg requires total care for all activities of daily living -- even someone to feed her. She is very pleasant and tries to cooperate. She speaks only yes or no, but is only oriented toward her name. She is not aware of time or place. She is very confused, disoriented and with almost no short-term memory.
Judge Kimmelman signed an order on April 18, 1991 fixing the date for the hearing. In that order, he appointed Gary N. Skoloff as counsel for the alleged mental incompetent.
According to the transcript of the proceedings, which took place before Judge Kimmelman on June 7, 1991, Robert Penza appeared for the plaintiffs (Mr. Penza had filed the complaint), George Bloom appeared on behalf of Barbara, Mr. Skoloff appeared for Sophie, and Harold Krieger appeared for Louis.
As of June 7, 1991, Sophie required, and was being provided with, 24-hour nursing care in her apartment in Clairidge House I in Verona. Sophie was unable to feed, clothe or take care of herself in any way. She had been receiving full-time care for approximately two years prior to June of 1991.
Diane testified before Judge Kimmelman that her father wanted her and her siblings to be appointed the legal guardians for Sophie and Louis signed a "Renunciation" in favor of his children on March 22, 1991.
It is clear from the transcript that the main reason for instituting the incompetency proceedings was so that Louis could file a complaint for divorce against his wife of 61 years, and so that the papers could be served upon her guardians. Louis contends that his children were not appointed guardians of his wife so that he could proceed with the filing of a divorce action, but a fair reading of the transcript does not reveal any other reason for the institution of the incompetency proceedings.
It has been alleged in the proceedings before me that Louis, through his attorney, requested Judge Kimmelman to finalize the divorce on June 7, 1991 or shortly thereafter, but Judge Kimmelman was unwilling to do so because a divorce complaint had not yet been filed. There is nothing in the transcript and there is nothing in the record before me that would support that allegation of the plaintiff.
Judge Kimmelman signed the "Judgment for Appointment of Guardian" on July 1, 1991. That judgment appointed Martin, Diane and Barbara as guardians of the person and property of their mother. For reasons that are not clear, Louis did not file a divorce complaint. However, his attorney, Harold Krieger, prepared a draft of a complaint in November of 1991 and he sent the draft to Mr. Skoloff. The complaint alleged a separation of more than 18 months, commencing in or about October of 1987. Prayer (b) of the draft complaint sought an order "approving the terms and conditions set forth in the attached Settlement Agreement". There was no agreement attached to the complaint, and it has been represented to this court that although Discussions took place and draft documents were prepared, no agreement was ever executed by Louis.
Louis submitted a certification in opposition to Mr. Skoloff's application for fees in the guardianship proceeding, in which he stated in paragraph 6:
It was my intention to go forward with a divorce proceeding. However, I decided not to do so when all sorts of demands were being made upon me as a condition of my obtaining a divorce. The form of divorce complaint which is attached to Mr. Skoloff's certification was prepared by my attorney and sent to Mr. Skoloff as a matter of courtesy to see if there would be any objection to same. At no time was the divorce action filed or pursued.
There were no further court proceedings until Martin, Barbara and Diane filed a complaint against their father and six other defendants on July 13, 1992. Although the complaint has a law division docket number, the case is presently pending in the chancery division. The complaint asserts six separate causes of action against various defendants, including a cause of action against their father for an alleged breach of contract.
Louis filed an answer and counterclaim against his three children, as well as a third party complaint against two of his grandchildren. The guardians filed their complaint for divorce on behalf of their mother, against their father, on July 30, 1992. An order to show cause with restraints was signed on that date. Those restraints were continued by an order dated August 7, 1992.
In response to the order to show cause, Louis filed a motion seeking to dissolve all restraints and to dismiss the complaint, "as improperly brought by a guardian of a party". That motion was originally returnable August 21, 1992. Sophie, by her attorneys, filed a motion originally returnable October 9, 1992, seeking to bifurcate the issues and to allow an immediate hearing on the cause of action for divorce. The bifurcation application was initially made to the Assignment Judge who referred it back to this court.
Sophie and Louis have been separated at least since October of 1987. Since that time, and for an unspecified period prior thereto, Louis has lived with Nina Paris in New York City and elsewhere. Louis contends that he has lived with Ms. Paris during most of the past ten years. As previously indicated, Sophie has required round-the-clock care since at least the middle of 1989, and perhaps prior thereto. It has not been established whether Sophie knew, before she became incompetent, that her husband had been living with another woman and that he had, as admitted by Louis, contributed to the household expenses of Ms. Paris and that he made substantial gifts of expensive jewelry and valuable works of art to her. Ms. Paris was traveling with Louis in Italy in September of 1988 when he suffered a stroke. He has recovered, except for a slight speech difficulty and a paralysis of three fingers on his right hand.
According to Louis, he has not had a marital relationship with Sophie for at least 20 years and he claims that they saw each other only infrequently over the past ten years. Louis contends that for many years Sophie and the children were aware
of his separate life, but that allegation is disputed by his children who have alleged that until his stroke, their father "took extraordinary measures to protect his family and his wife from learning about Ms. Paris".
Prior to the time when Sophie became incapacitated and for a significant period of time thereafter, Louis had executed a will and had created an estate plan which left all or most of his estate to his wife and other family members. Four days after the three children filed their complaint against their father and six other defendants in July of 1992, Louis, on July 17, 1992, executed a new will in which the children were disinherited.
It has been stipulated that the marital estate of Louis and Sophie has a value in excess of $10,000,000. There have been references to a marital estate with a value in excess of $30,000,000. Most of the estate is in Louis' name or under his control. The major asset consists of the sole ownership by Louis of Crown Travel Agency. During the years of 1989 and 1990, Louis received total compensation by way of salary and bonus of $3,530,000 and $3,556,250, respectively. He received approximately the same amount in 1991. During those years, Barbara, who worked in the business full-time with her father, received total compensation of $760,500, $499,000 and $320,000, respectively. Martin and Diane worked part-time during those years, but they also received substantial salaries and bonuses. I refer to the income generated by the business only to demonstrate that it has a substantial value for purposes of equitable distribution in the event of a ...