[¶6] The traditional majority rule throughout the United States holds a guardian, conservator, or other legal representative does not have the power to file or maintain an action for the ward's divorce unless that power is specifically granted by statute. See, e.g., Nelson v. Nelson, 878 P.2d 335, 337-38 (N.M. Ct. App. 1994) (most courts that have addressed the issue hold that, without specific statutory authority, a guardian may not bring an action for divorce on behalf of the ward) (citations omitted). Under the traditional rule, courts do not read statutes granting guardians general powers to act on behalf of the ward as authorizing divorce actions because the decision to divorce is "too personal and volitional" to be pursued at the "pleasure or discretion" of a guardian.
{53} We have previously interpreted Section 45-5-312(B) as "grant[ing] guardians exceedingly broad powers" that include "the authority to interfere in the most intimately personal concerns of an individual's life." Nelson v. Nelson , 1994-NMCA-074, ¶ 16, 118 N.M. 17, 878 P.2d 335 (citing Section 45-5-312(B) and highlighting subsections enumerating particular guardian powers). In so doing, we reasoned that the particular powers enumerated in Section 45-5-312(B) "are listed ‘without qualifying’ the power of the guardian to act as a parent, and therefore they should be read as illustrative of the nature of the guardian's power."
Appellate courts of other states also have concluded that a guardian or conservator may institute and defend dissolution of marriage suits. See, e.g., Hopson v. Hopson, 257 Ala. 140, 141, 57 So. 2d 505 (1952); Campbell v. Campbell, 242 Ala. 141, 142-43, 5 So. 2d 401 (1941), rehearing denied, January 15, 1942; Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 445-46, 850 P.2d 674 (App. 1993); In re Salesky, 157 N.H. 698, 704, 958 A.2d 948 (2008); Nelson v. Nelson, 118 N.M. 17, 22, 878 P.2d 335 (App. 1994); In re Marriage of Gannon, 104 Wn. 2d 121, 124, 702 P.2d 465 (1985) (en banc). Other appellate courts, however, have denied permission.
Even those cases that allow representatives to prosecute such dissolution actions without statutory authorization vary in the conditions under which the actions are permitted, and some are very fact specific. For example, Nelson v. Nelson (N.M.Ct.App. 1994) 118 N.M. 17 [ 878 P.2d 335], one of the cases on which conservator relies, places considerable emphasis on the fact that, before becoming incompetent, the spouse had "expressed thoughts indicating a desire to end her marriage." ( Id. at p. 339.)
See, e.g., In re Marriage of Ruvalcaba, 174 Ariz. 436, 850 P.2d 674 (Ariz.Ct.App.1993); Nelson v. Nelson, 118 N.M. 17, 878 P.2d 335 (N.M.Ct.App.1994); In re Marriage of Ballard, 93 Or.App. 463, 762 P.2d 1051 (1988); Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837 (Tex.Ct.App.1988); In re Marriage of Gannon, 104 Wash.2d 121, 702 P.2d 465 (1985) ( en banc ); 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, § 3(a) (1995) (collecting cases).
As one court observed, "majority jurisdictions choose an absolute bar as the lesser of two evils, protecting the possibility that the incompetent spouse might elect to remain married if competent, even if it effectively prevents the incompetent spouse from ending the marriage while under the adjudication of incompetency." Nelson v. Nelson, 118 N.M. 17, 120, 878 P.2d 335, 338 (App. 1994). While the risk that a guardian may be acting contrary to a ward's wishes may support the rule that a guardian's power to initiate a dissolution proceeding must be specified by the legislature, this policy consideration does not justify requiring express statutory authority for a guardian to continue a ward's dissolution proceeding.
Having given due consideration to the memorandum in opposition, we remain unpersuaded and affirm the district court's memorandum order dissolving the marriage. {2} In this Court's calendar notice, we noted that New Mexico is a "no-fault" divorce state, Nelson v. Nelson, 1994-NMCA-074, ¶ 18, 118 N.M. 17, 878 P.2d 335, in which a court may order the dissolution of a marriage on the request of either party and upon a finding of incompatibility. [CN 3] We explained that Respondent affirmatively requested dissolution of marriage in her response to the petition for legal separation, which is a permissible counterclaim under Rule 1-013(B) NMRA. [CN 3] Because Respondent requested dissolution of marriage, the hearing officer's Report stated that the marriage should be legally dissolved due to incompatibility, the district court adopted the report, and Petitioner did not appeal the finding of incompatibility, we concluded that the district court was required to grant Respondent's request for dissolution of marriage.
See Hopson v. Hopson, 257 Ala. 140, 57 So.2d 505 (1952); Campbell v. Campbell, 242 Ala. 141, 5 So.2d 401 (1941); Ruvalcaba v. Ruvalcaba, 174 Ariz. 436, 850 P.2d 674 (App. 1993); In re Marriage of Higgason, 10 Cal.3d 476, 516 P.2d 289, 110 Cal.Rptr. 897 (1973); Northrop v. Northrop, No. CN 94-9882 (Del. Fam. Ct. December 30, 1996); Vaughn v. Guardianship of Vaughn, 648 So.2d 193 (Fla. App. 1994); McGrew v. Mutual Life Insurance Co., 132 Cal. 85, 64 P. 103 (1901) (interpreting Hawaii law); Cohn v. Carlisle, 310 Mass. 126, 37 N.E.2d 260 (1941); Smith v. Smith, 125 Mich. App. 164, 335 N.W.2d 657 (1983); In re Palmer, 755 S.W.2d 5 (Mo. App. 1988); Nelson v. Nelson, 118 N.M. 17, 878 P.2d 335 (App. 1994); Pace v. Pace, 32 Ohio App.3d 47, 513 N.E.2d 1357 (1986); In re Marriage of Ballard, 93 Or. App. 463, 762 P.2d 1051 (1988); Syno v. Syno, 406 Pa. Super. 218, 594 A.2d 307 (1991); Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993); Turner v. Bell, 198 Tenn. 232, 279 S.W.2d 71 (1955); Wahlenmaier v. Wahlenmaier, 750 S.W.2d 837 (Tex. Ct. App. 1988); In re Marriage of Gannon, 104 Wn.2d 121, 702 P.2d 465 (1985). Of the 17 jurisdictions that allow institution, four allow such action pursuant to express statute or rule (Florida, Massachusetts, Michigan, and Missouri).
The majority rule has long held that, absent express statutory authority, a conservator may not bring a dissolution action on behalf of a conserved person. See Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993); In re Marriage of Drew, 115 Ill.2d 201, 503 N.E.2d 339 (1986), cert. denied, 483 U.S. 1001, 1075 S.Ct. 3222, 97 L.Ed.2d 729 (1987); but see Stubbs v. Ortega, 977 S.W.2d 718, 724 ("Texas public policy does not prohibit authorizing a guardian to petition for divorce on behalf of her mentally incapacitated ward") (1998); Nelson v. Nelson, 118 N.M. 17, 878 P.2d 335, 341 ("a guardian of an adult incompetent ward may initiate divorce proceedings on behalf of the ward") (1994); andRuvalcaba v. Ruvalcaba, 174 Ariz. 436, 850 P.2d 674, 683-84 (a guardian may bring a dissolution action on behalf of the incapacitated ward pursuant to his general powers to act on the ward's behalf) (1993) . The policy reasons most often given in support of the majority rule are "the personal nature of the decision to terminate a marriage . . . and the inability to determine with certainty that the (conserved person] would have wanted to end the marriage." (Citations omitted.)