Marriage of Greenway

 

 

 

 

 

 

Filed 6/3/13  Marriage of Greenway CA4/3

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH APPELLATE
DISTRICT

 

DIVISION THREE

 

 
>

In re Marriage of JOANN and LYLE B. GREENWAY.
JOANN GREENWAY,         Appellant,               v.   LYLE B. GREENWAY,         Respondent.	G045949            (Super. Ct. No. 10D005024)            O P I N I O N

 

                        Appeal from an order of
the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Thomas R. Murphy, Temporary Judge.  (Pursuant to Cal.
Const., art. VI, § 21.)  Affirmed.

                        Law Offices of William
J. Kopeny and William J. Kopeny for Appellant.

                        Law Offices of Marjorie
G. Fuller and Marjorie G. Fuller for Respondent.

 

 

                        After
48 years of marriage, Lyle B. Greenway (Lyle) sought legal separation from
Joann Greenway (Joann).href="#_ftn1"
name="_ftnref1" title="">[1]  At first, Joann filed a response also seeking
legal separation, but later she objected to ending the marriage or dividing the
estate valued at several million dollars. 
She asserted Lyle was mentally incompetent and their son, Kurt Greenway
(Kurt) was controlling the situation. 
The parties agreed to have the matter heard by retired judge Thomas R.
Murphy on the sole issue of whether Lyle was capable of making a reasoned
decision regarding his marital status. 
The trial court reviewed written arguments and heard testimony from Lyle,
Joann, their three adult children, Lyle’s elder law attorney, the family
accountant, and four health care professionals who had evaluated and assessed
Lyle’s mental state.  The court
determined Lyle was mentally capable of making a reasoned decision to end his
marriage.  The court granted Lyle’s
request for status-only dissolution of his marriage to Joann. 

                        On appeal, Joann
asserts:  (1) the record does not contain
sufficient evidence that irreconcilable differences resulted in an irremediable
breakdown of the marriage; (2) there was insufficient evidence Lyle had the
capacity to understand the meaning of the concepts critical to the dissolution
of a marriage; and (3) the court’s conclusions regarding Lyle’s dementia are
not supported by substantial evidence. 
We conclude Joann’s arguments lack merit, and we affirm the court’s
ruling.

II

                        Lyle and Joann were
married on August 19, 1961.  They have three adult children, Nick Greenway
(Nick), Kurt Greenway (Kurt), and Lyle Greenway, Jr., (hereafter referred to by
his nickname “Guy” to avoid confusion).

                        On May 28, 2010, Lyle, a 76-year-old retired dentist
filed a petition for legal separation, declaring under penalty of perjury his
request was based on irreconcilable differences.  He was represented by counsel.

                        Joann, 72-years-old, was
served with the summons and petition on June
2, 2010.  After Lyle granted
her an extension, on July 15, 2010,
Joann (representing herself) filed a response also requesting legal separation
based on irreconcilable differences.  She
confirmed the date of separation was May
27, 2010. 

                        The following month,
Lyle requested trial preference on the basis of his age and failing
health.  He filed a declaration stating
he moved out of the family residence in 2009, and was living alone in the
Newport Beach Plaza Retirement Community (Newport
Beach Plaza).  On July
2, 2010, he was hospitalized due to a knee infection that required
surgery.  Lyle stated he was currently
recovering in a skilled nursing facility. 
Lyle stated his recovery had been hampered because his immune system was
weakened by the chemotherapy treatments he received to treat lymphoma.  Lyle noted Joann was taking too long to
complete the paperwork and needed to move forward with the case.  She was given an extension to file her
response, and she had not yet completed a preliminary declaration of
disclosure. 

                        Lyle declared, “I would
like my legal separation case over as quickly as possible because I fear that
due to my failing health, I may not make it much longer, or that something will
happen to me which prevents me from fully participating in these
proceedings.  [Joann] has tried to
control my health care decisions since I was admitted to the hospital . . .
despite the fact that she does not have the ability to do so.  I have an advanced health care directive [in
place since November 20, 2009]
as I do not want [Joann] trying to control my health situations. . . .  I believe that [Joann] will assert herself in
any manner possible in this litigation that is to my detriment.  [She] has a way of trying to control every
situation I am in and I fear that I may not be able to protect myself in these
proceedings should something else happen to my health.  I have a substantial interest in my legal
separation case and want to protect myself by making sure I can actively participate
in my case.”

                        In September 2010, Joann
(now represented by counsel), filed an amended response claiming the parties
were not separated and objecting to legal separation or dissolution of the
marriage.  She also opposed the motion for
trial preference.  She alleged Lyle was
not seeking legal separation or trial preference “knowingly or of his own
volition.”  She stated, “I believe the
foregoing actions were conceived and orchestrated by our son Kurt, who
manipulated [Lyle] into filing this action . . . against his will.”  She requested the court essentially stay the
proceedings until Lyle has undergone “a formal neurological/psychological
examination” to determine if Lyle’s legal separation request [was] voluntary.

                        Joann provided the
following evidence to support her claim. 
First, she asserted Lyle suffered from “cognitive impairment and short
term memory loss.”  She stated that in
July 2010, Andrew Oscar Schreiber, a neurologist, neurosurgeon, and friend of
the family informally examined Lyle and believed his short term memory loss may
be the result of “metabolic insults” or “hydrocephalus.”  Joann speculated Lyle’s condition provided
Kurt and the family’s accountant for the past 20 years, Thomas G. Donovan, “the
opportunity” to secure powers of attorney.

                        Joann said she was not
aware that in November 2009, Donovan was granted power of attorney over Lyle’s
financial affairs and Kurt was granted power of attorney over health care
decisions.  These documents were prepared
and supervised by attorney Donna R. Bashaw, a certified elder law
attorney.  Joann believed Kurt’s
motivation was to take control of the family’s assets.  She added that Kurt was upset with her
because she would not let him purchase Lyle’s dental practice.  She explained Kurt, also a dentist, offered
to pay $400,000 for the practice but because she did not think he would be able
to secure financing, she and Lyle sold it for $520,000 to a third party.  Joann said it was highly suspicious this transaction
occurred just six weeks before Kurt and Donovan secured their respective powers
of attorney over Lyle’s affairs.

                        Finally, Joann stated
the motion for preference should not be granted because Lyle failed to provide
the court with proof about his medical condition.  She stated his knee surgery does not “rise[]
to the level of a medical condition that would necessitate an advanced trial
date.”  Joann submitted an e-mail written
by Lyle’s counsel to establish his condition was not as bad as Lyle claimed.  Counsel wrote Lyle was “in excellent shape”
on one day (August 26, 2010).  Joann
concluded her declaration by stating she did not want her marriage to end and
she wanted to continue to visit and care for Lyle on a daily basis:  “I want to continue our relationship for as
long as we both shall live.”  She stated
an advanced trial date would deprive her of her due process rights to
discovery, would preclude a neurological examination of Lyle, and would make
things difficult because the marital estate was valued “at several million
dollars.”  She explained, “An estate of
this size and complexity cannot be divided overnight without adequate
accounting, depositions and other discovery.”

                        Lyle filed a reply
declaration pointing out Joann’s declaration was full of contradictions, i.e.,
Lyle is so weak he is being controlled by his son, yet he is not sick enough to
qualify for trial preference.  Lyle
declared his health continued to deteriorate, and he was recently
re-hospitalized for another infection. 
Lyle stated he was fully aware when he signed the petition requesting
legal separation.  Lyle stated he still
wanted a legal separation and to manage his own financial affairs apart from
Joann.  He denied being manipulated by
Kurt and noted Kurt had tried to get him to change his mind and dismiss the
legal separation.  Lyle declared,
“Although I have expressed to [Joann] that I want a separation, she simply
refuses to accept my decision. 
Interesting that [she] says she loves me, yet she continually interferes
with my healthcare decisions.”  He offered
two examples.  First, Joann refused to
transfer him to a facility he preferred because it was closer to the
family.  Second, she tried to cancel his
contract with an assisted living nursing residence.  He also clarified Schreiber was simply a
family friend who visited and offered the services of other specialists, but
Lyle declined the offer.

                        Lyle stated Joann rarely
visited him in the hospital, but after filing his legal separation petition,
she tried to see him more often “even though [he did] not want to see her.  The first time [she] showed any genuine
concern for [his] healthcare was after [he] filed the petition . . .
.  [His] relationship with [Joann] has
been very contentious for the last 30 years, not just recently.”  Lyle explained Kurt did not cause him to file
for legal separation, but he asked Kurt to help him and support his decision.

                        As for the sale of the
dental practice, Lyle stated Joann did not consult him before moving forward
with the sale and he had hoped to keep the practice in the family.  He was upset by her actions, but it was not
the reason he was seeking legal separation. 
He explained the durable powers of attorney were not prepared in
response to the sale but because Joann was trying to move him out of a care
facility against his will.  Lyle believed
Joann wanted him to move to a less expensive facility.  He stated, “Selling the practice was just
another red flag that [Joann] would continue to act against [his] wishes.”

                        Joann filed a
sur-reply.  She reiterated Lyle’s death
is not imminent and therefore trial preference was not necessary.  She denied not caring for Lyle’s health or
interfering with his healthcare decisions, and she described some of the care
she had provided to him.  She reasserted
Lyle’s actions and declarations were being controlled by Kurt.  She provided a lot of details about the sale
of the dental practice, believing it was the reason Lyle wanted the separation.


                        On September 17, 2010,
Judge David L. Belz granted the motion for preference and ordered Joann to
complete her preliminary declaration and disclosure.  The trial court permitted Joann to proceed
with a neuropsychological examination of Lyle. 
It set a mandatory settlement conference for mid-December and scheduled
trial for January 11, 2011.

                        Thereafter, the parties
stipulated to have the matter heard by retired Judge Thomas R. Murphy at
JAMS.  The parties submitted written
trial briefs, and Judge Murphy arranged to have the hearing on June 24, 2011,
at Lyle’s assisted living facility, the JAMS offices in Orange, and Joann’s
counsel’s law offices in Newport Beach.

                        Judge Murphy prepared a
detailed statement of decision, which we will incorporate in large part by
reference, because it highlights the factual basis for the court’s ruling.  The statement of decision began with a
history of the case, as we have already described above.  The only additional fact included was Lyle
currently resided in an assisted living facility where caretakers help him 24
hours a day.  Judge Murphy explained the
parties stipulated Lyle’s pleadings could be deemed to have been amended to
request a dissolution of the marriage if the court found Lyle was mentally
capable of requesting the dissolution. 
The judge framed the issue to be decided as follows:  “Is Lyle . . . capable of making a reasoned
decision of consequence; is his request to dissolve his marriage to Joann a
reasoned decision?”

                        The court stated it had
examined the testimony of several witnesses. 
In the statement of decision, the court began by recounting parts of
Lyle’s trial testimony as follows:  “‘He
wanted to make his own decision.’ 
[¶]  ‘He wanted to continue living
in the [a]ssisted [l]iving [f]acility.’ 
[¶]  ‘He did not want to go home
and live with Joann.’  [¶]  ‘He does not get along with Joann.’  [¶]  ‘He
does not particularly like it when Joann visits him at the facility.’  [¶] 
‘He does not think his relationship with Joann could ever be
restored.’  [¶]  ‘He thought he would be angry at Joann for
one reason or another no matter what we do.’ 
[¶]  ‘He enjoys visits with his
sons Kurt and Guy, and . . . Donovan, his CPA.’ 
[¶]  “‘He does not enjoy visits
with his son Nick because of the latter’s comments that the “Father is wrong”
and “under Catholicism you’re married forever.”’”  [¶] 
‘He trusts . . . Donovan . . . his former CPA and his current
agent/attorney-in-fact [regarding] financial matters.’  [Exhibit 16.] 
[¶]  Lyle was asked if he knew the
difference between a guess and an estimate. 
His response was, ‘An estimate has got fact; a guess doesn’t.’  [¶]  He
was also asked the following questions and gave the following answers:

                        ‘Q.  Do you want to be divorced from Joann?

                        ‘A.  Yes.

                        ‘Q.  Do you understand that a divorce will end
your marriage to Joann?

                        ‘A.  Yes.

                        ‘Q.  Do you and Joann have major differences
between you that have broken down your marriage?

                        ‘A.  Yes.

                        ‘Q.  Is there any possibility that counseling
would save your marriage?

                        ‘A.  No.

                        ‘Q.  Have you been a resident of California for
the last several years?

                        ‘A.  Yes

                        ‘Q.  Have you been a [resident] of Orange County
for the last several years?

                        ‘A.  Yes.” 

                        The court found relevant
the following statements from Joann:  She
believes, “‘Lyle has been ill for some time[]’” and he “‘blames her for not
selling his dental practice to their son Kurt.’”  Joann admitted she had a bad relationship
with Kurt and she opined “Kurt [was] exercising undue influence over
Lyle.’”  In addition, she would like to
bring Lyle home and care for him, and she did not want to dissolve her
marriage.

                        Next, the court
discussed the testimony of Nick and Guy. 
Nick stated he visited Lyle weekly. 
Nick had “‘run-ins with his brother Kurt [regarding] his parents’
marital proceedings.’”  Nick heard his
father say he did not want to go through with the divorce and he witnessed
“‘Exhibit 12, wherein Lyle requested a meeting with Joann and Lyle’s
attorney.’”

                        Guy stated he visited
his father daily and there was no animosity between him, Lyle, Joann, Kurt, or
Nick.  He prepared Exhibit 12 for Lyle’s
signature, but he “‘generally stays away from the topic of divorce with Lyle.’”


                        In its statement of
decision, the court noted the following facts from Donovan’s testimony:  (1) he has been the family’s CPA for over 20
years, and Kurt is also his client; (2) he perceived Kurt was disappointed when
Lyle’s dental practice was sold to a third party; and (3) he is currently
compensated for the services rendered on behalf of Lyle.

                        The court found relevant
the following testimony from Bashaw, the attorney who prepared the Advance
Health Care Directive and Uniform Statutory Form Power of Attorney for
Lyle.  The judge noted Bashaw assessed
Lyle’s condition when preparing the documents. 
She was asked if she usually had a “‘neurologist or neuropsychologist do
an evaluation if any suspicions [are] raised” when providing or witnessing
durable powers of attorney.  She
responded, “‘If I really thought the person was on the border of having
capacity to do documents, Yes, I would.’” 
She added, “‘I know [Lyle] was physically ill.  I was never told there was any mental illness
and I didn’t see or discern any mental incapacity.’”

                        Next, the trial court
turned to the four health care professionals, who rendered different
conclusions about Lyle’s mental status. 
Lyle’s personal physician, Valerie Valentine Acevedo, D.O., specializing
in neurology and electromyography, diagnosed Lyle as having mild cognitive
dementia, depression, and hydrocephalus. 
Her report was submitted to the court (Exhibit 7).

                        Nathan E. Lavid, M.D., a
clinical and forensic psychologist, and Gary Freedman-Harvey, Ph.D., a licensed
psychologist jointly reported Lyle met the diagnostic criteria for dementia,
alcoholism, and “‘provisionally for [d]epression . . . he is mentally
compromised to be susceptible to the influence of others . . . he is currently
[incapable] of exercising the judgment and expressing the wish that his
marriage of 49 years be dissolved.’ 
(Exhibit 4).”

                        Robert Joseph Sbordone,
Ph.D., a consultant in clinical neuropsychology, reported Lyle “‘understands his
health care needs and is capable of deciding on the [s]killed [n]ursing [c]are
facility he wishes to be treated so that his medical problems and health care
needs are properly addressed.’  (Exhibit
9)”

                        The court concluded,
“All of the health care professionals testified, and . . . Lavid,
Freedman-Harvey and Sbordone agreed that should Lyle be suffering with
dementia, the appropriate designation thereof was [s]ubcortical
[d]ementia.  The same three professionals
were asked by the [c]ourt to meet and confer . . . and thereafter set forth
their template of the symptoms associated with mild, moderate and severe
[s]ubcortical [d]ementia.  Exhibit 13 is
[the] result of their efforts.”  The
court noted all the health care professionals commented on Exhibit 13 as
follows:  Acevedo opined Lyle suffered
from mild dementia, and her testing showed Lyle’s thought processes were
impaired.  Sbordone agreed Lyle suffered
mild impairment in the areas of memory speed of cognitive process, abstract
thinking, and moderate impairment in neuroimaging resulting from a mild
atrophy.  However, “With these exceptions
. . . Sbordone opined that Lyle had no other symptoms of [s]ubcortical
[d]ementia.”

                        The court summarized
Freedman-Harvey’s findings. 
Freedman-Harvey opined Lyle suffered from mild impairment in the area of
memory.  He stated Lyle was “on the cusp
between moderate and severe in the area of [s]peed of [c]ognitive [p]rocess”
and there was moderate impairment in the areas of neuroimaging and
insight. 

Freedman-Harvey
concluded there was severe impairment in the areas of executive functions.  The court noted Freedman-Harvey stated, “he
had not concluded that Lyle had severe dementia,” only that the subcortical
dementia interfered with Lyle’s thought processes. And finally, the court noted
Lavid opined Lyle suffered severe impairment in all categories. 

                        In its statement of
decision, the court relied on the above factual findings to reach the following
conclusion:  “There was no evidence to
suggest Lyle was not qualified to act as a witness.  He was capable of expressing himself
[regarding] the matter at issue (the dissolution of his marriage), and [he]
appeared to understand his obligations to tell the truth.  Lyle met the qualifications of being a
witness (Evidence Code [section] 700). 
The question before the [c]ourt was whether Lyle was capable of making
the reasoned decision to dissolve his marriage. 
[¶]  The following is clear.  [¶] 
Lyle testified in the presence of his wife, his wife’s lawyer, his two
lawyers, . . .

Freedman-Harvey,
the court reporter, and the undersigned. 
He was examined and cross-examined for approximately 30 minutes.  He was able to respond appropriately to the
questions he was asked; he was able to read documents; he said he signed
Exhibit 2 because his son Guy asked him to sign it; he expressed humor and
sarcasm.  He reaffirmed his decision to
name Kurt as his health care director and [Donovan] as his attorney in fact for
financial issues.  At one point during
cross-examination he was asked if he were becoming angry and he said yes.  Lyle was wearing hearing aids and did not
appear to be ambulatory.”       

                        In addition, the court
concluded, “Dementia is apparently the loss of cognitive ability beyond what
might be expected from normal aging.  It is
a progressive disease . . . i.e., being described as mild, moderate and
severe.  The experts all agree that Lyle
. . . has dementia.  The question is,
however, not whether Lyle has dementia, but whether his impairment is such that
he no longer has the capability of making a reasoned decision to end his
marriage.  [¶]  Lyle chose to give . . . Donovan his power of
attorney for financial issues and chose to give Kurt . . . his [a]dvanced
[h]ealth [c]are [d]irective

.
. . neither of these acts would suggest mental impairment, but insight and the
ability to engage in abstract thinking. 
Lyle’s comparison of the terms ‘guess’ and ‘estimate’ certainly suggest
an ability to track a topic and [should] be given equal weight with inability
to give the right answer on the MOCA (i.e., his saying that the similarity
between a train and a bicycle was ‘wheel’ when the correct answer was
transportation).  [¶]  There was no indication that Lyle could not
handle activities of daily living, obviously subject to his current physical
health.  [¶]  After reviewing the testimony and evidence,
including re-reading the health care professional reports, re-reading the trial
briefs and my notes, I have concluded that Lyle . . . is capable of making a
reasoned decision of consequence, i.e., he is capable of making the reasoned
decision to end his marriage with Joann . . . . 
[¶]  Accordingly, and pursuant to
the stipulation of counsel at the beginning of the trial, Lyle . . . is hereby
granted a dissolution of his marriage to Joann . . . .”

II

>A. Evidence Lyle had “Capacity to
Understand”

                        Joann argues the court
failed to require evidence Lyle had the capacity to understand the meaning of
concepts critical to his decision to divorce her.  The parties submit there are not cases
directly on point as to the correct legal standard for capacity to dissolve a
marriage.  They also appear to agree,
simply being “competent” to testify as a witness under Evidence Code
section 700 is not the test. 
Instead, they offer different analogies to authority relating to the
mental capacity required for other types of important decisions (such as the
capacity to marry and testamentary capacity). 


                        Specifically, Lyle
contends an appropriate analogy would be the standard used to determine
testamentary incompetency.  “It has been
held over and over in this state that old age, feebleness, forgetfulness,
filthy personal habits, personal eccentricities, failure to recognize old
friends or relatives, physical disability, absent-mindedness and mental
confusion do not furnish grounds for holding that a testator lacked
testamentary capacity.”  (>Estate of Selb (1948) 84 Cal.App.2d 46
49 (Estate of Selb); Prob. Code,
§ 6100.5.)  Joann disagrees with
this analogy and suggests two approaches she believes require a higher level of
mental capacity.  First, she claims Lyle
had the burden of proving he was capable of “exercising a judgment and
expressing a wish, that the marriage be dissolved on account of irreconcilable
differences and has done so.”  (>In re Marriage of Higgason (1973) 10
Cal.3d 476, 483 (Higgason) [guardian
can seek dissolution on behalf of conservatee who expressed wish to divorce];href="#_ftn2" name="_ftnref2" title="">[2]
see also In re Marriage of Straczynski (2010)
189 Cal.App.4th 531, 540 (Straczynski)
[conservatee must “continue[]” to maintain the necessary capacity throughout
the dissolution proceeding].)  Second, in
her reply brief, Joann introduces a statutory test for mental capacity (not
discussed at trial) relating to the decision to marry, and she argues this
standard should have been applied by the trial court in this case.  (Citing Prob. Code, §§ 811, 812.) 

                        As we will explain in
more detail below, the determination of a person’s mental capacity is fact
specific, and the level of required mental capacity changes depending on the
issue at hand.  Complicating matters are
the multiple, and overlapping, statutes regarding the “capacity” of elders
(anyone over the age of 65)href="#_ftn3"
name="_ftnref3" title="">[3]
found in the Probate Code, the Welfare and Institutions Code, the Civil Code,
and the Family Code.  After reviewing the
relevant case law, we conclude mental capacity can be measured on a sliding
scale, with marital capacity requiring the least amount of capacity, followed
by testamentary capacity, and on the high end of the scale is the mental
capacity required to enter contracts. 
The burden of proof on mental capacity changes depending on the issue;
there is a presumption in favor of the person seeking to marry or devise a
will, but not so in the context of a person executing a contract. 

                        The basic starting point
for any mental capacity determination is Due Process in Competence
Determinations Act found in Probate Code sections 810 to 813, 1801, 1881,
3201, and 3204 (the Act).  In 1995, the
Legislature created the Act to clarify the legal capacity of a person who has a
mental or physical disorder.  The Act
expressly states it broadly covers the capacity of such persons to perform all
types of actions, “including, but not limited to” contracting, conveying,
executing wills and trusts, marrying, and making medical decisions.  (Prob. Code, § 810, subd. (b).)  “The mere diagnosis of a mental or physical
disorder shall not be sufficient in and of itself to support a determination
that a person is of unsound mind or lacks the capacity to do a certain
act.”  (Prob. Code, § 811.)  Moreover, the Act declares there “exists a
rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be
responsible for their acts or decisions.” 
(Prob. Code, § 810, subd. (a), italics added.)

                        The Act offers a wide
range of potential mental deficits that may support a “determination that a
person is of unsound mind or lacks the capacity to make a decision or do a
certain act[.]”  (Prob. Code, § 811,
subd. (a) [lists 18 mental functions].) 
The categories of mental functions generally relate to one’s ability to
understand and recall one’s surroundings, and include (but are not limited to)
alertness and attention, orientation to time, ability to concentrate, short and
long term memory, ability to communicate, recognition of familiar objects and
persons, ability to plan and reason logically, delusions, ability to modulate
mood, and affect.  (Ibid.)  The Legislature noted
a deficit in one of the mental functions listed “may be considered only if the
deficit, by itself or in combination with one or more other mental function
deficits, significantly impairs the person’s ability to understand and
appreciate the consequences of his or her actions with regard to the type of act or decision in question.”  (Prob. Code, § 811,

subd.
(b), italics added.)  In other words,
under this statutory scheme, incompetency due to an “unsound mind” cannot be
based on the diagnosis of a medical or physical disorder, and it is not enough
to identify a few mental deficits.  There
must be a causal link between the impaired mental function and the issue or
action in question.  Moreover, in
considering the causal link, courts should also consider “the frequency,
severity, and duration of periods of impairment.”  (Prob. Code, § 811, subd. (c).) 

                        Whereas Probate Code
section 811 defines “unsound mind” deficit criteria, Probate Code
section 812 provides additional criteria to be considered when deciding
whether a person lacks “capacity to make decisions.”  It states: 
“Except where otherwise provided by law, including, but not limited to,
[the Probate Code section regarding informed medical consent] and the statutory
and decisional law of testamentary capacity, a person lacks the capacity to
make a decision unless the person has the ability to communicate verbally, or
by any other means, the decision, and to understand and appreciate, to the
extent relevant, all of the following: 
[¶]  (a) The rights, duties, and
responsibilities created by, or affected by the decision.  [¶] 
(b) The probable consequences for the decisionmaker and, where
appropriate, the persons affected by the decision.  [¶] 
(c) The significant risks, benefits, and reasonable alternatives involved
in the decision.” 

                        Simply stated, the
required level of understanding depends entirely on the complexity of the
decision being made.  There is a large
body of case authority reflecting an extremely low level of mental capacity
needed before making the decision to marry or execute a will.  Marriage arises out of a civil contract, but
courts recognize this is a special kind of contract that does not require the
same level of mental capacity of the parties as other kinds of contracts.  Family Code section 300, subdivision (a)
simply states marriage requires “the consent of the parties capable of making
that contract.”  (See also >Rathburn v. Rathburn (1956) 138
Cal.App.2d 568, 573-574.)  Generally,
“All persons are capable of contracting, except minors, persons of unsound
mind, and persons deprived of civil rights.” 
(Civ. Code, § 1556.) 
However, as described in Probate Code section 811, an “unsound
mind” requires more than the diagnosis of a physical or mental disorder.  Moreover, a person under a conservatorship,
who is generally without contractual power, may be deemed to have marital
capacity.  (Prob. Code, § 1900
[appointment of conservator does not “affect the capacity of the conservatee to
marry”].)  Likely in recognition of the
fundamental right to marry (Ortiz v. Los
Angeles Police Relief Assn. (2002) 98 Cal.App.4th 1288, 1304), the
Legislature enacted a statute permitting a court to determine a conservatee’s
capacity to marry based on petition of the conservator, the conservatee or “any
relative or friend of the conservatee, or any interested person.”  (Prob. Code, § 1901, subd. (b).)  “Whether the conservatee has capacity to
marry is determined by the law that would be applicable had no conservatorship
been established.”href="#_ftn4" name="_ftnref4"
title="">[4]  (Cal. Law Revision Com. com. 52A West’s Ann.
Prob. Code (2013 ed.) foll. § 1900, p. 280.)  Thus, the court may rely on subjective
information provided by “any interested party” on the conservatee’s capacity to
marry and must ignore a prior adjudication deeming it necessary to appoint a
conservator because the conservatee lacked the legal capacity to enter into all
transactions that bind or obligate the conservatorship estate.  (Prob. Code, § 1872.)  And, as mentioned earlier, there is also a
presumption in support of finding the required mental capacity to marry.  (Prob. Code, § 810.)

                        Similarly, the standard
for testamentary capacity is exceptionally low. 
Probate Code section 6100.5, lists criteria stating an individual is not
mentally competent to make a will if unable to understand the nature of the
testamentary act, understand and recollect the nature of his or her assets, or
remember and understand his or her relationship to family members, friends, and
those whose interests are affected by the will. 
(Prob. Code, § 6100.5, subd. (a)(1).)  In addition, an individual lacks mental
competence if he or she suffers from a mental disorder with symptoms such as
delusions or hallucinations that cause him or her to devise property in a way
the individual “would not have done.” 
(Prob. Code, § 6100.5, subd. (a)(2).)  Interestingly, this seemingly clearly written
statutory authority has been interpreted by the courts to create a very low
standard for testamentary capacity.  As
noted by Lyle’s counsel, it is well settled, “old age, feebleness,
forgetfulness, filthy personal habits, personal eccentricities, failure to
recognize old friends or relatives, physical disability, absent-mindedness and
mental confusion do not furnish grounds for holding that a testator lacked
testamentary capacity.”  (>Estate of Selb, supra, 84 Cal.App.2d at
p. 49.)  Indeed, even hallucinations and
delusions do not demonstrate lack of capacity if they are not related to the
testamentary act.  (Estate of Perkins (1925) 195 Cal. 699, 704; see also >Estate of Fritschi (1963) 60 Cal.2d 367,
372 [testator in hospital with fatal cancer, physically weak, disturbed and
under heavy dosage of drugs possessed testamentary capacity].)  And like marital capacity, the mere fact the
testator is under a conservatorship will not support a finding of lack of
testamentary capacity without additional evidence of mental incompetence for
making a will.  (Prob. Code, § 1871,
subd. (c).)

                        Turning
to the capacity to contract (which includes the capacity to convey, create a
trust, make gifts, and grant powers of attorney) the baseline is contained in
Probate Code sections 811 and 812.  But
Civil Code Section 39, subdivision (b), provides more specific guidelines for
determining the capacity to contract.  “A
rebuttable presumption affecting the burden of proof that a person is of
unsound mind shall exist for the purposes of this section if the person is
substantially unable to manage his or her
own financial resources or resist fraud or undue influence.”  (Italics added.)  This is the same showing required for
establishment of a conservatorship. 
(Prob. Code, § 1801, subd. (b) [conservatorship established when
person is unable to manage financial resources or resist fraud or undue
influence].)  If the Civil Code section
39, subdivision (b) presumption arises, the burden is placed on the party
claiming capacity to contract to prove that while he or she may be unable to
manage his or her financial resources or resist fraud or undue influence, he or
she is nevertheless still capable of contracting being of sound mind as defined
by Probate Code section 811.href="#_ftn5"
name="_ftnref5" title="">[5] 

                        It is unclear why
testamentary capacity and marital capacity have lower standards than for mental
capacity, and a different burden of proof, from what is required before an
elderly person diagnosed with mild dementia executes a contract.  With respect to marital capacity, we are
aware of the many well established statutory safeguards in place to protect
spouses and their assets, and therefore, it is understandable why the
fundamental right to marry would warrant lowering the mental capacity
threshold.  As for testamentary capacity,
there is also a large body of statutory and case law designed to protect
testators and their heirs.  And common
sense tells us a living person will not be harmed by his or her own
testamentary documents.  The same cannot
be said for the parties to a contract, including the innocent third parties who
may have financially relied on the terms of a contract, the elderly person who
has made an inappropriate conveyance, or the person who prepared an imprudent
grant of a power of attorney.  These
types of contractual decisions create rights, duties, and responsibilities that
require a higher level of understanding and appreciation, and the parties are
not afforded the same safety net of laws that protect parties to marriage
contracts or testamentary acts.

                        In light of the above
authority, we conclude the mental capacity required to end one’s marriage
should be similar to the mental capacity required to begin the marriage.  As discussed above, the threshold is low.  A person under a conservatorship, who is
generally without contractual power, may be deemed to have marital
capacity.  (Prob. Code,
§ 1900.)  And our Supreme Court, in >Higgason, supra, 10 Cal.3d 476, held a
conservatee could also initiate a dissolution proceeding as long as he or she
has the capacity to express that he or she wants to end the marriage.  In that case, a 73-year-old woman (Wife) with
“substantial assets” married a 48-year-old man (Husband) who had “little or no
means.”  (Id. at p. 479.) 
Approximately two weeks later, Wife, based on her own petition, was
adjudicated an incompetent person and the court appointed a conservator. 

                        Thereafter, Wife filed
two separate actions to terminate her marriage, but dismissed them.  (Higgason,
supra, 10 Cal.3d at p. 479.)  She
filed her third petition soon after Husband was forcibly removed from the
family home.  Wife had evidence he was
“‘up on booze and pills’” and she was frightened by his activities.  (Id. at
p. 480.)  Wife “herself signed and verified the
petition as well as two declarations in support of an order to show cause for
injunctive relief against . . . [H]husband visiting her premises.”  (Ibid.)  One issue before the trial court was whether,
in light of the conservatorship, Wife’s temporarily appointed guardian ad litem
(Wife’s daughter) could initiate the proceedings.  Wife’s conservator of the estate, her bank,
had declined to act as guardian ad litem in the marital proceeding.  (Ibid.)

                        The court held a hearing
on the restraining order and considered testimony Wife was ill and confined to
bed.  (Higgason, supra, 10 Cal.3d at p. 480.)  The court also heard evidence Wife asked her
daughter to come to her home because she was afraid of Husband and his presence
would have a “serious emotional effect” on her. 
The court granted the preliminary injunction, noting Wife was not insane
and “‘not without ability to think.’”  (>Id. at p. 481.) 

                        Before the hearing on
the petition for dissolution, Wife’s counsel took her deposition and she
testified “to the facts of the marriage and to irreconcilable differences and
stated that as far as she was concerned the marriage was over.”  (Higgason,
supra, 10 Cal.3d at p. 481.)  Because
Wife was physically unable to appear in court, the parties stipulated the
deposition would be introduced into evidence. 
The Higgason opinion includes
the entire transcript of the deposition within a footnote.  Wife did not describe the nature of the
irreconcilable differences.  Wife simply
stated she wanted the marriage to be over. 
The only reason she offered for her decision was that she gave Husband
several chances to change (reflected by the two dismissed petitions for
dissolution), but “he thought I was taking dope, and that is more than I ever
would take from anybody.”  (>Id. at p. 482, fn. 3.)

                        The Supreme Court in >Higgason rejected Husband’s argument the
petition for dissolution of marriage could not be brought by a guardian ad
litem, on behalf of a spouse who is under conservatorship.  (Higgason,
supra, 10 Cal.3d at p. 483.)  The
court reasoned such a proceeding may be brought “provided it is established
that the spouse is capable of exercising a judgment, and expressing a wish,
that the marriage be dissolved on account of irreconcilable differences and has
done so.  [¶]  [T]his requirement has been met. . . . [T]he trial
court found that the wife was not insane and had the ability to think; the
record shows that the wife signed and verified the petition for dissolution of
marriage and also two declarations in support of . . . injunctive relief
against the husband’s visiting her premises; and her deposition shows that she
desired a dissolution of the marriage.” 
(Id. at pp. 483-484.)  The Supreme Court reasoned appointment of a
conservator “does not constitute a determination that the conservatee is in any
way ‘insane or incompetent’ [citations] . . . .”  (Id. at
p. 484.)  It cited to legal authority, enacted before
the Family Law Act, holding a guardian ad litem could not obtain a divorce for
an incompetent wife contrary to her express wishes.  (Ibid,
citing Cohen v. Cohen (1946) 73
Cal.App.2d 330 (Cohen).)  “It was there implied, however, that if the
wife’s capacity of consenting to a divorce were established, and if she
verified the divorce pleadings and testified that she wanted a divorce, a
divorce [by] her guardian ad litem’s complaint might be proper.”  (Higgason,
supra, 10 Cal.3d at p. 485.) 

                        In Straczynski, supra, 189 Cal.App.4th 531, the appellate court
extended Higgason by holding an
incapacitated individual may maintain
a dissolution proceeding only if he or she remains capable of “‘exercising a
judgment, and expressing a wish, that the marriage be dissolved’” throughout
the proceedings.  (Id. at p. 541.)  The court
reasoned this interpretation was consistent with Higgason and Cohen because
those courts recognized the decision to dissolve a marriage is intensely
personal.  Just as a guardian cannot
maintain an action so “‘strictly personal’” against the conservatee’s wishes,
the act of filing and maintaining a divorce action “have the same intensely
personal quality” and the conservatee must be capable of making the decision to
file the petition and expressing his or her desire to end the marriage.  (Id. at
p. 541.)  

                        In the case before us,
Joann challenges the court’s finding Lyle was mentally competent to maintain an
action for marital dissolution, arguing the ruling is not supported by
substantial evidence.  Specifically,
Joann asserts the trial court’s “ultimate conclusion” that Lyle was capable of
making a “‘reasoned decision of consequence’” does not meet the >Higgason standard.  She maintains the court improperly focused on
two factors:  (1) Lyle’s decision to give
Donovan and Kurt power of attorney over financial and health care decisions; and
(2) Lyle’s ability to distinguish between the words “‘guess’” and
“‘estimate.’”  She explains the first
factor is stale information because the assignment occurred in November 2009
and does not prove Lyle was still mentally capable months later when he
petitioned for separation/divorce.  In
addition, Joann points out that there is no expert testimony to support the
court’s conclusion Lyle’s ability to distinguish between words means he has the
ability to make a reasoned decision.  And
finally, she argues the expert testimony presented at trial did not establish
the capacity required to seek marital dissolution and the burden was on Lyle to
prove he exercised a judgment about ending his marriage.  She concludes there was no evidence Lyle
could do “anything beyond ‘expressing a desire’ to end the marriage in response
to leading questions from his counsel.’” 


                        We have carefully
reviewed the record and the court’s statement of decision, and reach a
different conclusion.  Given the lower
mental capacity threshold required for decisions to enter or end a marriage, we
disagree with Joann’s argument the trial court failed to require the “right”
kind of evidence to make its ruling and improperly failed to place the burden
of proving a “sound mind” on Lyle.

                        As mandated by Probate
Code section 810, Lyle’s diagnosis of dementia is not sufficient in and of
itself to support a determination he was of unsound mind or lacked the mental
capacity to end his marriage.  The trial
court correctly started with the baseline presumption Lyle had the capacity to
make a reasoned decision to end his marriage, and cited to several facts in the
record that supported the presumption. 

                        For example, we find the
trial court appropriately relied on the fact Lyle was capable of assigning
durable powers of attorney for financial decisions and healthcare.  Although the execution of these documents
occurred several months prior to his decision to file a petition for
separation, the trial court recognized the mental capacity required for those
contractual decisions was high.  In the
statement of decision, the trial court stated it relied on a certified elder
law attorney’s testimony she did not “see or discern any mental incapacity”
when she supervised preparation and execution of the durable power of attorney
documents in November 2009.  She
testified she would have required a neurologist of neuropsychologist do an
evaluation if she suspected her client “‘was on the border of having capacity
to do documents.’” 

                        Thus, as of November
2009, Lyle was mentally capable of making the reasoned choice to turn over his
finances and health care decisions to his trusted friend and his son.  Lyle reasonably explained in his declaration
that he made these assignments after Joann tried to move him out of a care
facility against his will.  The court
concluded Lyle’s decision did not suggest mental impairment but rather
supported the conclusion Lyle’s mild dementia had not affected his “insight” or
“ability to engage in abstract thinking.” 
We agree deciding to assign durable powers of attorney required the
cognitive capacity to contemplate his future of declining physical health, to
evaluate Joann’s intentions and conduct, and the need to seek a legal remedy to
protect his financial and emotional best interests.  In short, the assignment supported the
conclusion Lyle was of sound mind because he possessed the “ability to reason”
and “ability to plan, organize, and carry out actions in [his] own rational
self-interest.”  (Prob. Code, § 811,


subd.
(a)(2)(E) and (F) [examples of mental functioning related to information processing].)

                        Just six months later,
Lyle himself signed the petition seeking separation from Joann, two
declarations, and a motion for trial preference.  Like the conservatee in Higgason, Lyle stated several times he wanted his marriage to be
over.  The reasons for seeking legal
separation were consistent with his earlier decision to remove his assets and
medical decisions from Joann’s reach. 
There was no evidence suggesting there would be an appreciable
difference in Lyle’s mental status in a six-month period.  Indeed, Joann opposed the motion for trial
preference asserting there was no reason to speed up the proceedings.  For all the reasons stated above, we conclude
the information regarding Lyle’s mental capacity six months prior to seeking
marital dissolution was not too stale and was properly relied upon by the trial
court in considering Lyle’s level of mental capacity.

                        Likewise, we conclude
the trial court properly focused on the nature of Lyle’s testimony during the
trial.  The court observed Lyle’s demeanor
and mental acuity first hand, and it appropriately included in the statement of
decision its assessment of Lyle’s mental capacity.  The court focused on many of the mental
functions listed in Probate Code section 811:  It noted Lyle was capable of testifying in
front of Joann, several lawyers and a court reporter for approximately 30
minutes.  The court found it relevant
that Lyle responded appropriately to questions, he recognized his signature, he
expressed humor and sarcasm, and he was angered by questions on
cross-examination.  These observations
related to mental functions such as (1) “alertness and attention[,]”

(2)
“level of . . . consciousness[,]” (3) “orientation to time, place, person and
situation[,]” and (4) the ability to “concentrate” and process information
appropriately.  (Prob. Code, § 811,
subds. (a)(1)(A)-(C), (a)(2)(A-C).)  The
court also properly relied on the fact Lyle reaffirmed at trial his earlier
decision to assign durable powers of attorney, which relates to the mental
functions of short and long term memory and the recognition of familiar objects
and persons.  (Prob. Code, § 811,
subd. (a)(2)(A) & (C).) 

                        We do not understand
Joann’s criticism of the trial court’s consideration of Lyle’s testimony
regarding his knowledge of the differences between a guess and an
estimate.  She asserts none of the
experts established a relationship between knowing these definitions and Lyle’s
ability to make a reasoned decision.  We
find it helpful to view the statement in context.  It was made during cross-examination after
Lyle was asked when he initially decided to file for legal separation.  Lyle responded he guessed it was six months
ago.  Joann’s attorney asked if he knew
the difference between a guess and an estimate. 
Lyle responded, “Yes.”  When
counsel asked Lyle if he wanted an explanation of the difference, Lyle
reiterated, “I know the difference.” 
Counsel then asked Lyle to explain the difference, and he replied, “An
estimate has got fact involved; a guess doesn’t.” 

                        In its statement of
decision, the court used Lyle’s response as an example of Lyle’s ability to
“track a topic,” which is a skill related to many of the mental functions
listed in Probate Code section 811 [alertness, information processing, and
thought processes].)  The skill also
related to a mental deficit related to thought processes discussed in the
Probate Code section 811, subdivision (a)(3)(A) [does person have severely
disorganized thinking].)  Lyle’s sequence
of reasoned responses, regarding one topic, clearly suggests his thinking is
organized and logical.  More importantly,
the court’s discussion of Lyle’s responses also related to the court’s
determination the question about estimates should “be given equal weight” with
his inability to correctly answer some of the test questions provided by the
experts.  The court gave an example of
one such test question:  When Lyle was
asked about the similarities between trains and bicycles he replied “wheels”
(which was technically correct) but the right answer for the test was
“transportation.”  The court was simply
pointing out what the experts had already reported.  Knowing the differences and similarities
between words has a relationship to whether a person has the mental capacity
required to make a reasoned decision.  

                        Joann’s final argument
relates to the alleged lack of expert testimony to establish the mental
capacity required by the law to end a marriage. 
As stated above, Joann’s argument is incorrectly premised on the theory the
mental capacity required is high.  After
reviewing the record, we conclude Lyle’s testimony and his experts’ testimony
provided ample evidence Lyle was mentally capable of “exercising a judgment,
and expressing a wish, that the marriage be dissolved on account of
irreconcilable differences and has done so.” 
(Higgason, supra, 10 Cal.3d at
p. 483.)

                        For example, Lyle both
verbally and in writing expressed his judgment and wishes to be divorced.  At trial, Lyle confirmed he did not want
Joann to make financial or healthcare decisions for him.  When asked if counseling could save his
marriage, he replied, “No.”  Lyle
explained he had differences with his wife about making decisions, such as
their disagreement about him living in the assisted living facility.  He unequivocally stated he did not want to
move home and he wanted a divorce because “We just don’t get along.”  On cross-examination, Lyle gave similar
answers, stating he understood Joann did not want to end the marriage, and even
if she forgave him for filing for divorce “[o]ur relationship could [not] ever
be restored.”  We dare say there are not
too many other ways to express one’s wish to end a marriage.

                        Lyle’s experts included
his treating physician (a neurologist). 
Acevedo performed cognitive and dementia screening on Lyle and prepared
a report admitted into evidence.  Acevedo
diagnosed Lyle as having mild cognitive dementia.  Based on the testing results, she opined Lyle
was able to make some judgments but not others. 
Acevedo stated she met with Lyle a couple of days before testifying and
he was “doing better.  He is able to
answer questions, engage in conversation, he’s able to state with certainty
what he wants and what he doesn’t want. 
And he did score with good judgment on the test within normal
range.”  She explained people with severe
dementia are often mute, completely dependent on the care of other people, and
unable to eat or bathe.  Acevedo believed
Lyle used “good sound judgment for his medical care thus far[]” and it was her
impression he was not susceptible to undue influence.  Acevedo concluded Lyle was mentally capable
of making a reasoned decision about ending his marriage because they talked
about it and based on the test results.

                        Lyle’s second witness, a
clinical neuropsychologist, agreed with the above expert assessment.  Sbordone’s expertise was in cognitive and
neurobehavioral function.  He had
expertise in evaluating patients with dementia, had published three textbooks
on the topic, and was involved in clinical trials of medication used to treat
dementia.  Sbordone stated he was asked
to assess whether Lyle had any significant cognitive deficits or impairments
that would affect his ability to render a decision about ending his
marriage.  He interviewed Lyle, reviewed
his medical records, and performed several tests on Lyle.  He and Lyle discussed his marriage and his
reasons for wanting to separate. 
Sbordone testified that during the interview, Lyle also correctly
recounted current events, recalled background information about himself and his
family, and accurately described his health problems.  Sbordone opined that based on his
observations and test results, Lyle may suffer from mild dementia but he was
not currently cognitively impaired such that he could not make a reasoned
decision about wanting a divorce.  He
also offered reasons why Joann’s experts’ opinions to the contrary were
incorrect.

                        Joann devotes a large
portion of her opening brief
discussing evidence she claims supports the conclusion Lyle’s dementia was so
severe he could not exercise a judgment or express a wish his marriage be
dissolved, and her theory Lyle filed the petition because of undue
influence.  But we do not reweigh the
evidence.  The court had before it
substantial evidence of Lyle’s mental capacity both in the form of expert
opinion and by its first hand observations. 
And given that courts must presume a person has the capacity to make a
decision about ending his or her marriage, and must apply the relevant legal
authority requiring a lower level of mental capacity, we find no basis to
disturb the trial court’s judgment. 
There was much less information about the conservatee’s mental capacity
presented in the Higgason case, where
the court simply relied on the fact Wife personally signed the petition and
testified in her deposition she no longer wanted to be married. 

>B. 
The Court did not Misstate the Facts of the Case

>                        Joann
asserts that when a trial court misstates the evidence, its decision is an
abuse of discretion.  She argues the
facts on which the decision was based “were not what the record actually
shows.”  We disagree.

                        Joann finds fault with
the trial court’s summary of Freedman-Harvey’s expert testimony.  The court summarized Freedman-Harvey’s
conclusions as follows:  The expert
concluded Lyle suffered mild impairment in the area of memory, he was between
moderate and severe in the area of speed cognitive process, severe in the area
of executive functions and had moderate impairment in the area of neuroimaging
and insight.  The court also noted
Freedman-Harvey did not conclude Lyle had
severe dementia, but that he had subcortical dementia that interfered with
his thought process.  Joann’s argument focuses only on this last
statement. 

                        Joann asserts the trial
court did not understand the expert’s testimony because Freedman-Harvey opined
Lyle had severe dementia.  Moreover, Joann argues the expert stated
subcortical dementia interfered with Lyle’s ability to make decisions, not
Lyle’s “thought process.”  This is the
basis for her claim the trial court misstated the evidence.  In an attempt to retry the case, Joann also
sets forth reasons she believes the evidence presented by her experts was
better than Lyle’s experts and, therefore, should have been relied upon by the
trial court.  Based on these two “errors”
she concludes the judgment must be reversed. 


                        We have reviewed the
record, and we have no doubt the trial court understood Freedman-Harvey’s
medical opinion.  In its statement of
decision, the court stated Freedman-Harvey reported Lyle was “‘mentally
compromised’” and unable to “‘exercise[] the judgment and express[] the wish
that his marriage of 49 years be dissolved.’” 


                        The trial court’s
statement Lyle did not have severe dementia is contained in the portion of the
statement of decision where the trial court summarized its discussion with the
four experts.  Because the four experts
came from different backgrounds and areas of expertise, the court asked if they
would confer and determine if they could reach any sort of consensus concerning
Lyle’s mental status.  After discussing
the medical definition of dementia, the experts agreed Lyle did not suffer from
Alzheimer’s dementia, but it was a kind of subcortial dementia.  Freedman-Harvey testified the >subcortical dementia was in the
“moderate to severe” range.  However,
when specifically asked, “Has your testimony throughout this trial been that he
has severe dementia?” Freedman-Harvey replied, “I don’t believe that was my
verbiage.  I heard the word severe.  I am less focused on the level of dementia
than that there is subcortical dementia
that interferes with his thought
processes.”  (Italics added.)  The court’s summary accurately reflects this
portion of the expert’s t