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                       Illinois Official Reports                         Reporter of Decisions
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                               Appellate Court                           Date: 2016.02.22
                                                                         11:49:10 -06'00'




                   Warga v. Warga, 2015 IL App (1st) 151182



Appellate Court   GEORGE F. WARGA, a Disabled Person, By and Through His
Caption           Guardian, Joseph Warga, Respondent-Appellee, v. LAIMA WARGA,
                  Petitioner-Appellant.



District & No.    First District, Sixth Division
                  Docket No. 1-15-1182



Filed             December 4, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-P-5895; the
Review            Hon. Ann Collins-Dole, Judge, presiding.



Judgment          Affirmed.



Counsel on        Law Office of Robert Blinstrubas, P.C., of Chicago (Mitchell Miller,
Appeal            of counsel), for appellant.

                  Monahan Law Group, LLC, of Chicago (John W. Whitcomb, Amy E.
                  McCarty, and Joseph T. Monahan, of counsel), for appellee.



Panel             JUSTICE DELORT delivered the judgment of the court, with opinion.
                  Justices Hoffman and Hall concurred in the judgment and opinion.
                                              OPINION

¶1      In Karbin v. Karbin, 2012 IL 112815, our supreme court held that a guardian may seek
     court permission to bring a marriage dissolution action on behalf of a ward, and overruled the
     contrary rule previously established in In re Marriage of Drews, 115 Ill. 2d 201 (1986). The
     General Assembly codified Karbin shortly thereafter, through a 2014 amendment to the
     Probate Act of 1975 (Act). See Pub. Act 98-1107, § 5 (eff. Aug. 26, 2014) (amending 755
     ILCS 5/11a-17(e) (West 2012)). The Karbin court’s opinion, and the Act, set forth certain
     procedural and substantive safeguards to protect the ward. Among those safeguards is the
     requirement that a circuit court considering a petition to file for dissolution of marriage hold a
     hearing to determine whether dissolution is in the ward’s best interests. In this case, we
     consider an issue of first impression: whether, under Karbin and the Act, a ward’s nonguardian
     spouse has standing to participate at the best interests hearing.

¶2                                        BACKGROUND
¶3        George Warga, the ward, was born in 1924 and is currently 91 years old. When George’s
     first wife became ill, he hired a nurse, Laima Bacanskas, to help care for her. George’s first
     wife died in 2000, but George continued to retain Laima to help with household duties. In
     2006, George and Laima married. George has no children by either marriage.
¶4        On October 11, 2012, Cathleen Warga Cascia, George’s niece, filed a petition for
     appointment of guardian for disabled person for George, nominating Joseph Warga, George’s
     brother, to be the guardian of the person. Laima was named in the petition as an interested
     person, but she did not challenge the petition at that time. George was alleged to be disabled
     due to dementia and depression. The court appointed Joseph as temporary guardian pending
     further proceedings.
¶5        On December 14, 2012, Laima filed a cross petition for appointment of guardian for
     disabled person and nominated her son by a previous relationship, Tomas Bekeris, to be the
     guardian of George’s person and estate. The court denied Laima’s petition and granted
     Cathleen’s petition. The court appointed Joseph as the plenary guardian of George’s person
     and The Northern Trust Company as the plenary guardian of George’s estate.
¶6        George has resided at an assisted living facility since April 2012. On February 4, 2014,
     Laima filed a motion for visitation with her husband George. She claimed that they used to
     have periodic visits, but after her annual trip to Lithuania from June 2013 to August 2013,
     George said he no longer wished to see her. The court denied Laima’s motion for visitation.
¶7        On November 21, 2014, George appeared in court for a scheduled court date, during which
     he asked to address the court. During his remarks, he told the judge: “I would like to
     disassociate myself from Laima in any way that I can. I just want her out of my life. We are not
     compatible in the least bit. There’s never any pleasure between our relationship. It was just
     business, and it will never be more than that.” He reiterated this point several times throughout
     his remarks. He also claimed that he did not like how Laima requested money and claimed that
     she was using it to support her son Tomas. George said that if possible, he did not ever want to
     see Laima again. At the end of his remarks, George stated that he wanted the court to appoint
     an attorney for him so that he could pursue a divorce.



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¶8         On February 11, 2015, George, through appointed counsel, filed a motion to authorize
       retention of divorce counsel to pursue a dissolution of marriage on his behalf. Joseph later
       joined in this motion.
¶9         On February 20, 2015, the trial court held a preliminary hearing to determine the
       parameters of the best interests hearing, during which it would assess whether it was in
       George’s best interests to initiate dissolution proceedings. Although Laima was allowed to
       participate during the preliminary hearing, the court ultimately determined that the only parties
       with standing to participate in the final best interests hearing would be: (1) George’s guardian
       ad litem; (2) Joseph, as guardian of George’s person; (3) Northern Trust, as guardian of
       George’s estate; and (4) George’s attorney.
¶ 10       The court conducted the best interests hearing on February 25, 2015. At that time, Laima’s
       counsel appeared and presented a motion to reconsider the earlier order barring her from
       participating and a motion for substitution of judge for cause. The court denied the motions
       based on lack of standing, but nonetheless offered Laima the opportunity to testify as an
       interested party, which her counsel declined.
¶ 11       At the hearing, Joseph testified that he visits with his brother George several times a week
       and that George brings up the topic of divorcing Laima during almost every visit. According to
       Joseph, divorcing Laima seems “very important” to George. Elaborating, he explained that
       George “gets very emotional [and] derides himself because he regards his marriage a terrible
       mistake on his part and on his wife’s part.” Joseph also testified that he believes it is in
       George’s best interests to get a divorce, and he is afraid the entire situation is affecting
       George’s health. On cross-examination by the guardian ad litem, Joseph testified that George
       asked him about initiating the divorce, and that he and George did not have conversations
       about divorce before he became George’s guardian.
¶ 12       George did not personally appear at the hearing. However, the trial court took judicial
       notice of the November 21, 2014 hearing at which George appeared and spoke about his desire
       to get a divorce. The court also took judicial notice of the May 12, 2014 ruling denying
       Laima’s motion for visitation.
¶ 13       After the close of evidence, the court determined that the witnesses were credible. The
       court then found “by clear and convincing evidence that it would be in the best interest of
       George Frank Warga to have an attorney appointed for him to go to the marital dissolution
       court.” On March 24, 2015, the trial court issued written orders denying Laima’s motion to
       reconsider and granting George’s motion to authorize the retention of a divorce attorney. Two
       days later, George filed a petition for dissolution of marriage against Laima. In re Marriage of
       Warga, No. 2015 D 2782 (Cir. Ct. Cook Co.). This appeal of the guardianship court’s order
       followed.

¶ 14                                            ANALYSIS
¶ 15       Laima raises six issues on appeal. She contends that: (1) the trial court erred by holding that
       she did not have standing to participate in the best interests hearing; (2) George did not have
       statutory authority to seek permission to file a petition for dissolution; (3) the trial court failed
       to properly apply the test set forth in section 11a-17(e) of the Act during the best interests
       hearing; (4) the trial court improperly prejudged its decision granting the guardian permission
       to seek a divorce for George; (5) the best interests hearing did not comply with the substantive


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       due process requirements set forth in Karbin; and (6) the court erred by denying her motion for
       substitution of judge for cause.
¶ 16       Because it is dispositive, we first consider Laima’s arguments concerning standing. In
       Karbin v. Karbin, 2012 IL 112815, our supreme court held that a guardian has authority to seek
       permission from the court to file petition for dissolution of marriage on behalf of a ward if the
       court finds that filing the petition is in the ward’s best interests. Id. ¶ 51. The test for granting
       such a motion is whether dissolution is in the best interests of the ward. The court explained
       that, in order to “ensure that the best interests of the ward are achieved while preventing a
       guardian from pursuing a dissolution of marriage for his or her own financial benefit, or
       because of the guardian’s personal antipathy toward the ward’s spouse,” trial courts should
       conduct a best interests hearing pursuant to section 11a-17(e) of the Act. Id. ¶ 53; see also 755
       ILCS 5/11a-17(e) (West 2014). Moreover, to “further safeguard the interests of all parties
       involved,” the court held that a guardian seeking permission to file a petition for dissolution of
       marriage on behalf of a ward must show by clear and convincing evidence that dissolution is in
       the ward’s best interests. Karbin, 2012 IL 112815, ¶ 53.
¶ 17       After the supreme court decided Karbin, the General Assembly amended the Act to codify
       Karbin’s central holdings. See 755 ILCS 5/11a-17(a-5) (West 2014). Consistent with Karbin,
       section 11a-17(a-5) provides in relevant part:
               “Upon petition by the guardian of the ward’s person or estate, the court may authorize
               and direct a guardian of the ward’s person or estate to file a petition for dissolution of
               marriage or to file a petition for legal separation or declaration of invalidity of marriage
               under the Illinois Marriage and Dissolution of Marriage Act on behalf of the ward if the
               court finds by clear and convincing evidence that the relief sought is in the ward’s best
               interests. In making its determination, the court shall consider the standards set forth in
               subsection (e) of this Section.” Id.
¶ 18       The Karbin court outlined the procedures for pursuing such a motion, and held that the trial
       court should hold a “best interests” hearing for the ward, governed by the familiar standards set
       forth in section 11a-17(e) of the Act. Karbin, 2012 IL 223825, ¶¶ 52-53. Section 11a-17(e)
       states:
               “Decisions made by a guardian on behalf of a ward shall be made in accordance with
               the following standards for decision making. Decisions made by a guardian on behalf
               of a ward may be made by conforming as closely as possible to what the ward, if
               competent, would have done or intended under the circumstances, taking into account
               evidence that includes, but is not limited to, the ward’s personal, philosophical,
               religious and moral beliefs, and ethical values relative to the decision to be made by the
               guardian. Where possible, the guardian shall determine how the ward would have made
               a decision based on the ward’s previously expressed preferences, and make decisions
               in accordance with the preferences of the ward. If the ward’s wishes are unknown and
               remain unknown after reasonable efforts to discern them, the decision shall be made on
               the basis of the ward’s best interests as determined by the guardian. In determining the
               ward’s best interests, the guardian shall weigh the reason for and nature of the proposed
               action, the benefit or necessity of the action, the possible risks and other consequences
               of the proposed action, and any available alternatives and their risks, consequences and
               benefits, and shall take into account any other information, including the views of


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                family and friends, that the guardian believes the ward would have considered if able to
                act for herself or himself.” 755 ILCS 5/11a-17(e) (West 2014).
¶ 19       Although both Karbin and section 11a-17(a-5) direct trial courts to conduct a best interests
       hearing to determine whether a ward should be allowed to file a petition for dissolution, neither
       authority indicates anything regarding whether the ward’s spouse has standing to participate in
       the best interests hearing. Rather, they focus on the guardian, stating the guardian is only
       required to take into account, among a variety of other factors, “the views of family and
       friends” in determining the ward’s best interests. The issue of standing presents a question of
       law which we review de novo. Malec v. City of Belleville, 384 Ill. App. 3d 465, 468 (2008).
¶ 20       Our previous holdings regarding participation of nonguardian spouses in proceedings
       regarding personal decisions made on behalf of wards control the present dispute. We have
       held that “Article XIa [of the Act] does not contain any provision providing that relatives can
       *** challenge the guardian’s individual decisions regarding visitation or other matters
       concerning the ward.” Struck v. Cook County Public Guardian, 387 Ill. App. 3d 867, 877
       (2008). Even though this case presents the issue of a divorce, we see no compelling reason to
       depart from that general rule here. While Laima is George’s spouse, she is not his guardian,
       and there is no statutory basis for her to challenge the guardian’s decisions in this matter.
¶ 21       Laima argues, however, that she should have been granted standing to challenge the
       marriage dissolution motion pursuant to her constitutional rights as a spouse. She relies on
       Griswold v. Connecticut, 381 U.S. 479 (1965), in which the Supreme Court held that a
       Connecticut law forbidding the use of contraceptives unconstitutionally intruded upon the
       right of marital privacy, and Stanley v. Illinois, 405 U.S. 645 (1972), a case discussing the due
       process rights of unwed fathers. Laima argues that the right to marital privacy and due process
       grant her “the right to remain in her marriage.”
¶ 22       It is true that the Supreme Court has continually recognized that the right to marry is
       protected by the Constitution. See Obergefell v. Hodges, 576 U.S. ___, ___, 135 S. Ct. 2584,
       2598 (2015); M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); Turner v. Safley, 482 U.S. 78, 95
       (1987); Zablocki v. Redhail, 434 U.S. 374, 384 (1978); Loving v. Virginia, 388 U.S. 1, 12
       (1967). However, there is no corollary constitutional right for one spouse to remain in a
       marriage. To the contrary, the Supreme Court has specifically protected individuals’ rights to
       dissolve a marriage. See Boddie v. Connecticut, 401 U.S. 371, 382-83 (1971) (holding that it is
       a violation of due process for a state to preempt the right to dissolve a marriage without
       affording all citizens access to the means it has prescribed for doing so). Thus, denying Laima
       standing to challenge the guardian’s motion to retain divorce counsel does not infringe on her
       right to marry or her right to marital privacy. Laima’s reliance on cases such as Griswold and
       Stanley are entirely misplaced.
¶ 23       There are other reasons why Laima had no standing to oppose the authorization. First, in
       divorce proceedings involving two competent spouses, one spouse cannot contest the other’s
       mere filing of the case through counsel. It would thus be wholly illogical to permit it in this
       instance. See In re Estate of Henry, 396 Ill. App. 3d 88, 96 (2009) (finding that just as the
       appellants would lack standing to challenge a change to the ward’s will if he were competent,
       so too do they lack standing to challenge the order granting the plenary guardian’s petition to
       change the will).
¶ 24       Second, permitting Laima to challenge the authorization would be contrary to the
       principles emphasized in Karbin. The Karbin court stated that “when a guardian decides that

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       [the ward’s] best interests require that the marriage be dissolved, the guardian must have the
       power to take appropriate legal action to accomplish that end.” Karbin, 2012 IL 112815, ¶ 49.
       It is clear that the guardian alone has this power, and nothing in the court’s opinion alludes to
       allowing the spouse to challenge the guardian’s decision. In fact, the Karbin court found that
       the guardian’s decision to institute a dissolution action on behalf of the ward is no different
       than the many other personal decisions the guardian makes. Id. And, as we noted above,
       nothing in the Act permits a relative to challenge individual decisions made by the guardian on
       behalf of the ward. See Struck, 387 Ill. App. 3d at 877. We decline to erode the principles under
       which Karbin was decided and so cannot find that a ward’s spouse has standing to challenge
       this particular decision made by the duly appointed guardian.
¶ 25        Like any spouse, Laima may contest the grounds for dissolution of her marriage in the
       divorce court. However, she contends this is an inadequate remedy, arguing that by
       “[a]llowing the Probate Court’s order to stand, under Illinois’ no-fault divorce procedures,
       [we] will [e]nsure that the marriage between Laima Warga and George Warga will be
       terminated.” This is both irrelevant and incorrect. First, this argument has no bearing on
       whether a party has standing under the Act. Second, in contested no-fault divorce cases, the
       grounds for divorce are tried first. 750 ILCS 5/403(e) (West 2014). Even under the no-fault
       principle, the divorce court must find that George and Laima have lived separately for at least
       two years (or there has been a waiver of this requirement by both spouses), that “irreconcilable
       differences have caused the irretrievable breakdown of the marriage,” and that “efforts at
       reconciliation have failed or that future attempts at reconciliation would be impracticable and
       not in the best interests of the family.” 750 ILCS 5/401(a)(2) (West 2014). Laima remains free
       to submit evidence challenging those facts to the divorce court if she chooses.
¶ 26        Our holding regarding Laima’s standing necessarily requires that we affirm the other
       orders which she challenges: (1) denying her motion for substitution of judge; (2) appointing
       independent counsel for George; and (3) otherwise resolving the February 25, 2015 “best
       interests” hearing.

¶ 27                                       CONCLUSION
¶ 28      For these reasons, we affirm the orders below.

¶ 29      Affirmed.




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