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Appointment of “Next Friend” In Divorce Reversed on Appeal

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It is a common problem facing lawyers and litigants. What can be done if one of the parties to a lawsuit is a minor, or an incapacitated adult? Who makes decisions about the litigation if one party lacks legal capacity to handle their own financial and personal decisions?

In many courts, the civil litigation rules permit appointment of a “guardian ad litem,” an “attorney ad litem” or a “next friend” to guide lawyers and the court itself on how to proceed. One problem with those rules, however, is that they seldom make clear how such a person is to be appointed, who would qualify or what authority they might have. A recent case in Texas illustrates the confusion.

Alejandro Saldarriaga filed for divorce from his wife Debra Ann in late 1999. Both spouses had lawyers, and the litigation proceeded for three years without resolution of child custody, child support or property division issues. Finally Debra Ann Saldarriaga’s attorney, Lin Zintsmaster, decided her client was mentally incompetent to complete the divorce.

Ms. Zintsmaster filed a motion asking for appointment of someone to make decisions about how to proceed with the divorce litigation. The judge appointed local attorney Jerry Jones to be Ms. Saldarriaga’s “next friend,” and to make decisions about how the divorce should be completed.

Mr. Jones, in turn, filed a petition for appointment as Ms. Saldarriaga’s guardian, and yet another lawyer was appointed to represent her in that proceeding. Meanwhile Mr. Jones went ahead and negotiated a resolution of the remaining child custody, child support and financial decisions in the divorce proceeding.

Ms. Saldarriaga’s doctor wrote that she was not incapacitated, and the guardianship proceeding was dismissed. Meanwhile, however, the divorce court accepted the settlement negotiated by her “next friend” Jerry Jones, and the divorce was finalized. Ms. Saldarriaga appealed, arguing that the court never had authority to appoint someone to take over handling her case.

The Texas Court of Appeals in Austin agreed, and set aside the negotiated settlement. The court noted that there is a mechanism for appointment of a guardian, and the procedure must be followed in order to protect the rights of people who are alleged to be incapacitated. Since the powers of a “next friend” look so much like the authority given to a guardian, said the judges, the procedures must be similar. The divorce court simply did not have authority to name someone to take over Ms. Saldarriaga’s case. Saldarriaga v. Saldarriaga, November 13, 2003.

Although Mr. Jones testified in the divorce proceeding about the difference between the titles “guardian ad litem,” “attorney ad litem” and “next friend,” there is no clear consensus among practitioners about the distinctions. A “guardian ad litem” is someone, not necessarily an attorney, appointed to be an incapacitated person’s “guardian” for the limited purpose of a pending legal proceeding. Most practitioners think that a “guardian ad litem” should counsel the attorney as to what would be in the client’s best interests, although many would argue that the proper role is to help figure out what the incapacitated client wants to accomplish, and whether those goals are reasonable. An “attorney ad litem,” a term not used in most jurisdictions, fulfills a similar function but is necessarily an attorney; the role implies that the “attorney ad litem” will argue for what is in the patient’s legal best interest, not just his or her personal best interest.

Finally, the “next friend”–the choice used by the divorce judge in the Saldarriaga case–is the least well-defined of all. Many states permit a lawsuit to be brought by a “next friend” (Arizona is one), but the term is usually used for litigation filed on behalf of minor children by their parents. As Debra Ann Saldarriaga’s case makes clear, neither it nor either of the other designations should be used as a substitute for a real court determination of the ability of a client to make his or her own legal decisions.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.