W.W.H. v. D.L.H., [Ms. 2200109, Oct. 29, 2021] __ So. 3d __ (Ala. Civ. App. 2021). The court (Hanson, J.; Thompson, P.J., and Moore and Fridy, JJ., concur; Edwards, J., concurs in the result) reverses the Jefferson Circuit Court’s dismissal of the husband’s counterclaim for divorce. The wife moved to voluntarily dismiss her claim for divorce when it was determined that the husband was mentally incompetent. The wife argued that the husband’s counterclaim should also be dismissed because of his failure to respond to her discovery requests. In reversing, the court explains that “by statute and court rule in Alabama, a guardian may act on behalf of a mentally incompetent spouse in initiating a divorce action. See Campbell v. Campbell, 242 Ala. 141, 142-43, 5 So. 2d 401, 402 (1941) (‘The court has ample power to protect the interest of the incompetent complainant, and the equity of the bill must be determined on its averments, independent of the state of the complainant’s mind as if he were suing of his own volition.’ (emphasis added)).” Ms. **11-12. Dismissal of the counterclaim was not warranted as a discovery sanction because “the husband’s inability to respond to discovery requests stemming from his cognitive decline is more in the nature of an involuntary or accidental noncompliance … rather than conscious or intentional conduct that would justify a departure from the general legal principle that a party that is ‘non compos mentis’ is to be treated as a ward of the court so as to ensure that his rights are properly asserted and protected.” Ms. *14, internal citation and quotation marks omitted.
