I am back to the office and back to blogging. For those who don’t know, I was recently out for a family leave upon the birth of my second child. With each child, and each family leave, I have developed a greater appreciation for our clients’ experiences and greater insight into how the other side of a case may perceive certain events, react to what’s said in a certification, and so on, not just in custody matters but in general how life changing moments (which of course a divorce is) can impact all aspects of life and change or magnify certain behaviors/personalities. So, on this eve of Thanksgiving, I am grateful for how my children have enriched all aspects of my life, even work, through all the craziness.

Also for those who don’t know, I have done a decent amount of work as a Guardian Ad Litem, both for children in contested custody matters and for litigants who required assistance to navigate their own matters. Thus, it’s only fitting that I return to our blog with a case about the Guardian Ad Litem role for a litigant.

In R.B. v. E.A.C., the Appellate Division was faced with the question of whether a Guardian Ad Litem (“GAL”) can accept a divorce settlement on behalf of a litigant, resulting in a Judgment of Divorce incorporating the settlement, when the litigant claims that the settlement is unconscionable and that she wished to rescind any authority to accept same from the GAL. The case required a review of another matter, S.T. v. 1515 Broad Street LLC, in which the NJ Supreme Court addressed a litigant’s fundamental right to accept/decline a settlement proposal with limited exception, i.e.:

Only when, through proper legal procedures, a court determines that a litigant lacks the mental capacity to govern her affairs may the litigant be deprived of the right to decide the destiny of her lawsuit

In S.T., the litigant had a head injury and sued the defendants thereafter related to the injury, and when the litigant declined a settlement, their attorney sought a GAL without notice to the litigant. The court appointed the GAL, ceded authority to the GAL to determine whether the litigant had mental capacity to settle their case and, when the GAL determined they did not, the GAL accepted the settlement on their behalf.

However, this is a fact sensitive inquiry and, as it turns out, not at all like S.T. Rather, in R.B., the Court, sua sponte (on its own without a request), appointed a GAL for the wife after she failed to abide by the court ordered sale of a home following the litigants’ 22-year marriage, and the court was concerned over the wife’s ability to make decisions. Notably, the appointment order specifically stated that the GAL was appointed “… to explore if [p]laintiff has the mental capacity to engage in the litigation of this matter” and required the GAL to “expeditiously arrange for an evaluation of [p]laintiff” (i.e.: did not cede authority to the non-medical-professional GAL to make that decision on their own). In the meantime, to ensure the sale occurred, after some more mess was made, the Court granted the GAL authority to sign closing documents on the wife’s behalf and released funds from the sale for the medical expert’s evaluation.

Now, as discussed below in my comments, we have all been there with respect to needing assistance to have a closing occur in cases of noncompliance and so, this is not offensive in terms of having the documents signed, especially because the house had $1 million in equity and, thus, both parties would have been harmed by losing the sale.

Back to R.B., the GAL did as ordered and retained a psychiatrist who issued a report just about three months after the GAL appointment order, which is relatively quick for this type of evaluation (i.e.: following the direction for an expeditious evaluation). The psychiatrist did not diagnose the wife, but said she had personality issues that prevented her from handling the divorce herself as demonstrated by her incidents of non-compliance to judicial requests and passivity as to financial loss (i.e.: thwarting the sale of the home that had $1 million in equity. The psychiatrist further concluded that she needed the GAL. Thus, the GAL’s appointment was continued and he was ordered to investigate and issue a report as to whether the wife required a guardianship hearing.

Notably, the parties had agreed to move the case to arbitration between the order for the psychiatric report and issuance thereof. The arbitrator stayed the arbitration pending reconsideration of the GAL appointment subsequent to S.T. because, as addressed above, the NJ Supreme Court made it clear that a guardianship hearing is required to determine mental competency before authority can be taken from a litigant.

The GAL issued his report, detailed the wife’s aggressive behavior, failure to cooperate in agreed upon mediation with the arbitrator, obstinance toward the GAL, irrationality when discussing her divorce and an inability to make business like decisions. Thereafter, the wife agreed to meet with a second doctor and the court made such appointment for another evaluation and then for the GAL to update his report.

The second doctor diagnosed the wife with alcohol abuse disorder and a history of ADHD, as well as personality characteristics that suggest a personality disorder and concluded that she required mental health treatment, as well as it being in her best interests to maintain the GAL. The GAL then issued his updated report, which included the wife’s entrance to a 45-day alcohol rehabilitation program and a recommendation for a guardianship hearing. Notably, she had counsel who she had abandoned, as noted in the GAL report. I point this out because it seems that at most times, the wife had counsel in addition to the GAL except for her choice not to (here noting that she had abandoned counsel, earlier in the case it was noted that the wife told the GAL she was switching attorneys but didn’t, and later learning she had counsel for the end of the case).

Although the court ordered the guardianship hearing, the wife then simply agreed to have the GAL continue in lieu of the hearing. The court appointed an attorney for the wife and ensured the attorney was paid from marital funds. The parties were ordered to resume arbitration but, in another twist, the parties then settled their case and appeared for an uncontested divorce hearing. The settlement was reduced to a handwritten document signed by the husband, his attorney, the wife’s attorney, the GAL and the mediator, and it addressed alimony, equitable distribution, child support, counsel and GAL fees. However, in yet another twist, at the hearing, the wife told the court she did not agree to the settlement and that the GAL should have advocated for a better settlement, as well as a desire to proceed with arbitration and she wanted a trial. Her attorney told the court that the wife was not at the final mediation session and didn’t sign the agreement because she had stipulated that the GAL could make the ultimate decision on her behalf, which the wife then announced did not occur but also that she wished to rescind authority granted to the GAL (remember, she previously agreed to the continued appointment).

Ultimately, the trial judge proceeded with the settlement after stating for the record the procedural history of the more than 4-year-old case, the years of the GAL appointment, the evaluations and guardianship hearing/wife’s ultimate agreement to the GAL, concluding that the GAL had the authority to accept the settlement.

Not surprisingly, the wife appealed, claiming that the GAL did not have the authority to accept the settlement and that the judgment should be vacated like in S.T. because the court did not conduct a guardianship hearing and she had rescinded her consent for the GAL to proceed on her behalf. Interestingly, she noted that neither the Court nor the evaluators concluded that she was mentally incompetent… more so that she was “annoying and aggravating to others…”

Here, the matter is distinguished from S.T. because (1) the Court appointed a GAL based on its own observations of the litigant’s behavior, on notice to the wife, as compared to S.T. request by the litigant’s attorney unbeknownst to the litigant; (2) the GAL conducted a thorough investigation into her mental capacity complete with two evaluations, and issued reports to the court, as compared to S.T. where the GAL made the conclusion on their own; (3) a guardianship hearing was ordered; (4) the court did not cede authority to the GAL but rather, the wife agreed to the continued appointment of the GAL rather than proceed with the guardianship hearing and “…designated the GAL as her agent to settle her case with the assistance of her attorney”. The Appellate Division was not addressing a competency issue but, rather, an issue as to whether the GAL had the authority to settle on the wife’s behalf. The Appellate Division found:

The credible evidence in the record shows plaintiff exhibited oppositional behavior throughout the proceedings; a fact plaintiff readily concedes on appeal. These circumstances convince us it was not unreasonable to have an intermediary—in this case two attorneys—negotiate and facilitate the divorce. Indeed, a settlement achieved by a party through their representative is just as valid as one directly assented to by the party themselves.

Likewise, the Appellate Division concluded that the settlement was not unconscionable.

Boiling it down, the Appellate Division found no error in the trial court accepting the GAL’s role in settling the case on behalf of the wife even after the wife objected at the uncontested hearing, claiming that she did not voluntarily enter into the settlement and that the settlement was unfair – two prominent facts that have to be demonstrated at an uncontested hearing.

This case is especially interesting because reading the facts could be like reading many cases I have been apart of – on either side – namely, a litigant who is aggravating, frustrates the procedural process, fails to cooperate with the sale of a residence, causes delay, violates agreements, and so on. In those cases, we have sought Power of Attorney for our client on behalf of the other party to sign off on house sale documents, we have sought to enforce orders and agreements, as well as sanctions to the umpteenth degree.

But now, we must ask, does this open the door to seek a GAL for such disruptive litigants who may not have a diagnosis (or may but yet to be determined)? We also must be mindful in warning our own clients who perhaps exhibit certain behaviors that could cause a court to appoint a GAL.

This brings me back to the rule that a litigant cannot be barred from filing motions until the repetition/bad faith is so egregious. In those cases, particularly if pre-judgment (pre-divorce), do we merely assert that such litigant requires a GAL and hope that getting such an appointment calms the constant motion practice?

This is also a good lesson for us who serve in these roles to ensure that a Court follows the proper protocol and allows us the time to do so

I thoroughly enjoy GAL work as it is different from my day-to-day practice, so this is something I will think more about and add more flavor as additional GAL decisions are released. Until then, I will save you from my rambling.


Lindsay A. Heller is a partner in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.