Domestic Relations  – Separate Maintenance & Support – Standing – Guardian & Conservator 

An adult daughter, who was her elderly father’s guardian and conservator, could file suit against her mother for the father’s separate maintenance and support. 

We affirm the family court’s denial of the defendant-Wife’s motion to dismiss. 

Facts 

After a long and prosperous marriage, Wife and her Husband were both hospitalized in 2018. They lived separately thereafter. 

Husband had been declared incompetent in 2015. Wife was his attorney-in-fact. However, in 2018, the probate court found that Wife did not have Husband’s best interests at heart and appointed the plaintiff-Daughter as conservator and guardian. Daughter then filed this suit for separate maintenance on her father’s behalf. 

‘Personal’ Action 

Wife argues that an action for separate maintenance is strictly personal and cannot be brought by Daughter. She cites Murray by Murray v. Murray, 310 S.C. 336, 426 S.E.2d 781 (1993), which followed the majority rule that, absent a clear grant of authority to do so, a guardian could not maintain an action to dissolve an incompetent person’s marriage. Murray explained, “The theory underlying the majority view is that a divorce action is so strictly personal and volitional that it cannot be maintained at the pleasure of a guardian, even if the result is to render the marriage indissoluble on behalf of the incompetent.” 

Yet a suit for separate support and maintenance is meaningfully different from a suit for divorce. In Brewington v. Brewington, 280 S.C. 502, 313 S.E.2d 53 (Ct. App. 1984), we rejected as “inappropriate” the argument that separate maintenance and support is “personal” like a suit for divorce. While a suit for divorce ends the marital relationship, a suit for separate support and maintenance is sometimes necessary to enforce the marital obligation of support. 

Daughter argues this proceeding is about granting Husband the financial means to care for himself because Wife refuses to use marital assets to support Husband. There is no challenge to the validity of Husband and Wife’s marriage. 

We reject Wife’s argument that Murray required the family court to dismiss this action. 

Conflict of Interest 

Wife argues that, if a separate maintenance suit could be brought on Husband’s behalf, only a guardian ad litem (GAL) could bring it. She argues that Daughter has a conflict of interest because she is a potential beneficiary of Husband’s estate. 

We reject this argument first because Daughter is a court-appointed conservator and guardian serving under the probate court’s supervision. Second, a GAL was appointed, and the GAL testified that the suit should proceed. The simple fact that Daughter was a potential beneficiary of her father’s estate does not mandate dismissal of this case that was brought solely for the purpose of securing funds necessary to provide for his well-being. 

Affirmed. 

Dover v. Ball (Lawyers Weekly No. 011-041-22, 5 pp.) (Blake Hewitt, J.) Appealed from Pickens County Family Court (Greg Seigler, J.) Keith Denny for appellant; Robert Scott Dover for respondent. S.C. App.