This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Jennifer Elizabeth Barner, petitioner,



Adam Barner,


Filed October 28, 1997

Reversed and remanded

Parker, Judge

Ramsey County

File No. F7-96-2130

Jeanette A. Frederickson, Hessian, McKasy & Soderberg, P.A., 4700 IDS Center, 80 South Eight Street, Minneapolis, MN 55402-2228 (for appellant)

Garry D. Barnett, Kunard, Barnett, Kakeldey & Gates, Ltd., 226 North Broad Street, P.O. Box 3008, Mankato, MN 56002-3008 (for respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.



Appellant challenges the dismissal of her petition for dissolution of her marriage to respondent. Because the district court erred in determining that it lacked jurisdiction to hear her petition, we reverse and remand for an evidentiary hearing on the issue of appellant's capacity at the time of filing.


The appellate court is not bound by a district court's legal conclusions and will make its own determination on jurisdictional questions. Becker County Welfare Dep't v. Bellcourt, 453 N.W.2d 543, 544 (Minn.App.1990), review denied (Minn. May 23, 1990). This court gives all legal questions de novo review. See Frost-Benco Elect. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Appellant Jennifer Barner suffered a head injury during an accident in 1994. Respondent Adam Barner, her husband, was appointed guardian of her person and estate. In March 1996, the probate court discharged respondent, at his request, as the guardian of appellant's estate and appointed First Trust National Association. Respondent continued as guardian of appellant's person.

On August 16, 1996, appellant served respondent with a petition for dissolution, venued in Ramsey County, where appellant resides. On August 27, appellant's probate matter was transferred to Ramsey County. On October 22, 1996, respondent served appellant with his dissolution petition, venued in Waseca County, where respondent resides. On October 24, the Ramsey County District Court issued an order restoring appellant to capacity as to her person.

In November, the Ramsey County District Court heard appellant's motion for temporary relief. Respondent moved to dismiss appellant's petition or transfer venue to Waseca County. The court dismissed appellant's petition, determining that it lacked both personal and subject matter jurisdiction to hear the petition because appellant "was not a competent individual for the purposes of instituting dissolution proceedings without the prior appointment of a guardian ad litem."

Appellant now challenges the dismissal. She claims the district court erred in concluding that it lacked jurisdiction to hear her petition. We agree and hold that this case presents not a question of jurisdiction, but issues of capacity to sue and venue.

Minn. Stat. § 518.10 (1996) requires that a dissolution petition be verified by the petitioner. Respondent argues that because appellant was subject to a guardian of her person and estate at the time of filing, she could not verify the petition, and therefore she could not invoke the jurisdiction of the court. We disagree with this analysis. Personal jurisdiction raises a question as to the court's power over a person. 1 Minnesota Practice at § 12.6. We are cited to no authority to support the proposition that verification determines personal jurisdiction or that a district court lacks power over a person who is subject to a guardianship.

Minn. Stat. § 518 provides district courts with the authority to hear dissolution matters. See, e.g., Minn. Stat. § 518.09 (1996) ("proceeding for dissolution * * * may be brought by either or both spouses and shall be commenced by personal service of the summons and petition"). Thus, we conclude that the district court had subject matter jurisdiction of the dissolution action. See Duennow v. Lindeman, 223 Minn. 505, 511, 27 N.W.2d 421, 425 (1947) (defining subject matter jurisdiction as the "authority to hear and determine the particular questions the court assumes to decide") (quoting Sache v. Wallace, 101 Minn. 169, 172, 112 N.W. 386, 387 (1907)).

Respondent contends that Minn. R. Civ. P. 17.02 required that appellant have a guardian appointed before she could file a petition. Appellant argues that rule 17.02 does not apply to dissolution matters. See Tischendorf v. Tischendorf, 321 N.W.2d 405, 409 & n.2 (Minn. 1982) (stating that rule 17.02 did not apply to dissolution proceedings when visitation is at issue because it would require all children to have court-appointed guardians, which was not intent of rule). Assuming the rule to apply generally to dissolutions, it does not, upon analysis, specifically apply to this case and cannot be read to preclude jurisdiction.

Rule 17.02 provides:

Whenever a party to an action is an infant or is incompetent and has a representative duly appointed under the laws of this state or the laws of a foreign state or country, the representative may sue or defend on behalf of such party. A party who is an infant or is incompetent and is not so represented shall be represented by a guardian ad litem appointed by the court in which the action is pending or is to be brought.

The first sentence permits a duly appointed guardian to bring suit on behalf of his ward. The sentence does not apply, however, when the guardian is the party to be sued. A guardian may not appear as both the representative bringing a suit and as the defendant in an action. Hence, this sentence is inapplicable to appellant's situation. The second sentence requires appointment of a guardian ad litem when a person is incompetent but does not have an appointed guardian or representative to bring or defend a suit. Because the probate court had, in fact, appointed guardians over appellant's estate and person, this section is inapplicable. Therefore, neither sentence in this rule can be applied to appellant's fact situation.

Capacity to sue concerns a party's right to maintain an action. Cochrane v. Tudor Oaks Condominium Project, 529 N.W.2d 429, 433 (Minn. App. 1995), review denied (Minn. May 31, 1995). While a case may be dismissed for lack of capacity to sue, capacity differs from subject matter jurisdiction. See id. at 433-34 (describing differences of subject matter jurisdiction, capacity to sue, and standing).

The majority rule in this country is that a mentally incompetent person cannot sue for dissolution of marriage, either on her own behalf or by a guardian. In Re Marriage of Kutchins, 482 N.E.2d 1005, 1006 (Ill. App. 2 Dist. 1985); see also David E. Rigney, Annotation, Power of Incompetent Spouse's Guardian or Representative to Sue for Granting or Vacation of Divorce or Annulment of Marriage, or to Make Compromise or Settlement in Such Suit, 32 A.L.R. 5th, 673 (1995) (analyzing split of authority on ability of guardian to sue for dissolution on behalf of ward). This rule is based on the idea that

the decision to seek a dissolution of marriage is so strictly personal that the marriage should not be dissolved except with the personal consent of the party, which consent cannot be given where the party seeking the dissolution is mentally incompetent.

Kutchins, 482 N.E.2d at 1006. Some states allow wards to petition for dissolution if they have the capacity to make that specific decision. See id. at 1008 (remanding for inquiry into capacity of ward to make decision to divorce because finding that person was disabled for purpose of appointing guardian of his estate was not sufficient ground to hold petitioner mentally incompetent for purpose of petitioning for dissolution); accord Murray v. Murray, 426 S.E.2d 781, 784 (S.C. 1993) (remanding for finding as to father's competency to make decision to divorce so as to determine whether son could maintain dissolution action on behalf of father, despite fact that probate court had determined father was "totally disabled and incapacitated" and in need of guardian of his estate).

Minnesota has not yet examined the ability of a ward to file a petition for dissolution. It has been held that an insane person may sue and be sued, but should appear "by a next friend, general guardian, or guardian ad litem." Schultz v. Oldenburg, 202 Minn. 237, 244, 277 N.W. 918, 922 (1938). The supreme court ruled in Wilson v. Wilson, 95 Minn. 464, 466, 104 N.W. 300, 301 (1905), that jurisdiction in a dissolution proceeding could be obtained by service of a summons and complaint on an insane defendant, but suggested that a trial court should appoint a guardian ad litem to protect the interests of an incompetent person at trial and during all subsequent proceedings. Id., cited in Schultz, 202 Minn at 244-45, 277 N.W. at 922.

Minnesota authority does exist as to a ward's capacity to enter into a marriage contract, which we believe furnishes guidance in the case at hand. In Johnson v. Johnson, 214 Minn. 462, 8 N.W.2d 620 (1943), the supreme court addressed the ability of a person under guardianship to enter into marriage without his guardian's consent. The court ruled that a person who has been adjudged incompetent may contract to a valid marriage if he had, in fact, sufficient mental capacity for that purpose. Id. at 466, 8 N.W.2d at 622. A person under guardianship is conclusively presumed to be incompetent to make a valid contract or disposition of his property, but

`[t]his rule is based upon convenience and necessity, for the protection of the guardian, and to enable him to properly discharge his duties as such.' When the reason for the rule ceases, the rule does not apply. Convenience and necessity of the guardian extend only to those acts which he is authorized to do on behalf of the ward, such as managing and controlling his property and his estate. The guardian's authority does not extend to the marriage of his ward. One who has been adjudged an incompetent may contract a valid marriage if he has in fact sufficient mental capacity for that purpose.

Id. at 465-67, 8 N.W.2d at 622 (citations omitted) (emphasis added).

In In re Guardianship of Mikulanec, 356 N.W.2d 683 (Minn. 1984), the court addressed the need for the appointment of a guardian for a mentally ill woman who had been committed to a security hospital and wished to marry a committed sex offender. Even under those egregious circumstances, the court cautiously approached the notion of placing restrictions on a ward's right to marry. See id at 688-89 (distinguishing Johnson as a guardianship of the estate). Mindful of the fundamental nature of the right, the court remanded the case for appointment of a conservator with the limited power to determine whether the ward should be permitted to marry. Id.

In light of these cases, we believe that the proper procedure here would be for the district court to make a factual determination as to whether appellant had, in fact, the capacity to make the decision to divorce at the time she verified and filed the petition. In addition to protecting the ward's civil rights, this analysis is consistent with other case law regarding challenges to action taken by a ward, such as execution of a deed. See Thrope v. Hanscom, 64 Minn. 201, 66 N.W. 1 (1896) (where guardianship had been "practically abandoned, and the person who had been under guardianship after such abandonment makes a deed at time when he is in fact of sound mind and the contract is fair, the deed will be enforced, though the guardian has not been discharged by a judicial action"), cited in Schultz, 202 Minn. at 245, 277 N.W. at 922.

Respondent contends the fact that appellant was subject to guardianships as to her person and her estate at the time she filed is conclusive evidence that she lacked capacity to file a petition at that time. The law, however, is otherwise.

"Appointment of a guardian is evidence of the incompetency of the incapacitated person." Minn. Stat. § 525.54, subd. 5 (1996) (emphasis added). Such appointment, however, is not conclusive evidence of incompetency. See Schultz, 202 Minn. at 244, 277 N.W. at 922 ("A judgment in proceedings for the appointment of a guardian of an incompetent person is admissible in evidence, but not conclusive, in any litigation, to prove the mental condition of the person at the time the judgment is rendered, or at any past time during which the judgment finds the person incompetent."). Moreover, appellant raises the claim that the guardian of her person had been abandoned at the time of filing and that she was, in fact, of capacity.

We therefore remand to the district court for an evidentiary hearing to determine appellant's capacity at the time she filed her petition. Although appellant submitted affidavits on this issue, we decline her invitation to resolve this question and leave the role of factfinder with the district court. See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) ("it is not within the province of [appellate courts] to determine issues of fact on appeal"). If the court finds appellant had sufficient capacity to make the decision to divorce, we observe that the court may still appoint a guardian ad litem to protect her interests during the dissolution process, if necessary, and should involve the guardian of her estate to assist with the financial considerations.

Finally, we note the supreme court has recognized that the purpose of guardianship law is "to protect the property and estate of one who is in fact incapable of doing so for himself." Schultz, 202 Minn. at 245, 277 N.W. at 922. That incapacity, however, "cannot be changed from a shield of protection to a rapier of offense." Id. We believe respondent's attempt to use these protective laws, particularly his role as a guardian, as a weapon to achieve his venue preference is inappropriate. Such action supports our decision to inquire into the actual capacity of a ward who seeks a dissolution from her guardian before dismissing the ward's petition, to ensure protection of the ward's interests. If the court finds appellant to have had sufficient capacity, the court may then consider respondent's motion for a change of venue.

Reversed and remanded.