                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           Karbin v. Karbin, 2011 IL App (1st) 101545




Appellate Court            JAN KARBIN, Petitioner and Cross-Respondent-Appellee, v. MARCIA
Caption                    LOVENSON KARBIN, By and Through Her Guardian, Kara Hibler,
                           Respondent and Cross-Petitioner-Appellant.



District & No.             First District, Sixth Division
                           Docket No. 1–10–1545


Filed                      June 30, 2011


Held                       Where a husband filed a petition for the dissolution of his marriage to a
(Note: This syllabus       disabled person and the disabled person’s plenary guardian filed a
constitutes no part of     counterpetition for dissolution, the trial court properly dismissed the
the opinion of the court   guardian’s petition after the husband voluntarily dismissed his petition
but has been prepared      and left the guardian’s petition as the only pending dissolution petition,
by the Reporter of         since the Illinois Supreme Court’s rulings in Drews and Burgess that a
Decisions for the          plenary guardian does not have authority to seek a dissolution of marriage
convenience of the         on behalf of award applied to the instant case, and the language of section
reader.)
                           11a–17 of the Probate Act authorizing a guardian to “maintain” a
                           dissolution action if the ward filed a petition for dissolution before being
                           adjudicated a disabled person could not be construed as giving the
                           guardian authority to proceed with seeking a dissolution.


Decision Under             Appeal from the Circuit Court of Cook County, No. 07–D–11313; the
Review                     Hon. William S. Boyd, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, and Linda A.
Appeal                     Bryceland, of Monahan & Cohen, both of Chicago, for appellant.

                           Jordan B. Rifis, of Law Offices of Jordan B. Rifis, PC, and Andrea M.
                           Button Ott, of Law Offices of Andrea M.B. Ott, LLC, both of Oak Park,
                           for appellee.


Panel                      PRESIDING JUSTICE GARCIA delivered the judgment of the court,
                           with opinion.
                           Justice McBride concurred in the judgment and opinion.
                           Justice Cahill dissented, with opinion



                                             OPINION

¶1          Jan Karbin, the husband, filed a petition for dissolution of marriage from his disabled
        wife, Marcia Lovenson Karbin. The wife’s plenary guardian, Kara Hibler, filed a
        counterpetition for dissolution. Thereafter, the husband dismissed his petition and filed a
        motion to dismiss the wife’s counterpetition based on two Illinois Supreme Court decisions
        that bar a disabled person from initiating a dissolution of marriage. The circuit court agreed
        that the decisions applied here and dismissed the wife’s counterpetition. The guardian claims
        that a disabled person should be allowed to pursue a dissolution of marriage where
        procedural and substantiative safeguards can be met at a best interest hearing. The guardian
        argues the supreme court cases that stand as a bar to a guardian proceeding on behalf of a
        disabled spouse as a petitioner in a dissolution petition are outdated and should be deemed
        inapplicable when it can be shown that a dissolution of marriage is consonant with the best
        interest of the disabled person. There is force to this argument. However, we cannot
        distinguish the clear precedents of our supreme court on the proffered basis that a best
        interest hearing provides adequate safeguards to permit a guardian to pursue a petition for
        dissolution of marriage on behalf of a disabled person. Given the clear holdings of the
        supreme court, only the legislature can provide the statutory authority the guardian seeks. We
        affirm.

¶2                                      BACKGROUND
¶3          The parties were married on June 2, 1984. They have two children; one born to them, a
        son, Jacob, who suffers from mental disability and lives in a full-time care facility, and a
        daughter, Kara, Marcia’s daughter from a previous marriage, whom Jan adopted during the
        parties’ marriage.
¶4          After almost 14 years of marriage, Marcia suffered brain damage and became severely


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       disabled after a car accident. Her disability requires full-time care. Jan was appointed plenary
       guardian in 1997. While he was guardian, Jan established an annuity for Marcia out of the
       proceeds of the large settlement award stemming from the car accident. The annuity provides
       for Marcia’s lifetime care.
¶5          Jan suffers from Parkinson’s disease and, in 2004, agreed to transfer his plenary
       guardianship of Marcia to their daughter, Kara, because he could no longer care for Marcia.
       At the time of the guardianship transfer, the agreed order contained an agreement between
       the parties regarding the distribution of funds upon the sale of the marital home. With the
       approval of the guardianship transfer, the probate court approved a six-page settlement
       agreement signed by the parties. After the transfer, Marcia left Illinois with her daughter and
       now guardian, Kara.
¶6          At the time of the proceedings below, Marcia lived in a condominium in Ohio. When Jan
       filed his dissolution petition, he was living with another woman in a townhouse in Illinois.
       They jointly own the townhouse. The guardian claims that Jan is romantically involved with
       the woman he resides with. Jan refutes any romantic involvement; he characterizes the co-
       owner of the townhouse as his live-in caretaker.
¶7          In November 2007, Jan filed a petition for dissolution of marriage. Jan claims he did so
       at the request of Marcia’s guardian with an understanding that the dissolution action would
       be “uncontested and routine.” He claims they agreed that each party would retain the assets
       they possessed at that time of filing and each would be responsible for their respective debts.
¶8          In May 2008, Marcia, through her plenary guardian, filed a counterpetition for
       dissolution. Jan answered and discovery ensued.
¶9          The parties exchanged disclosure of assets and liabilities under Cook County Circuit
       Court Rule 13.3.1 (eff. Jan. 1, 2003). Jan claims his 2007 and 2008 income statements
       showed his monthly income had decreased because Parkinson’s disease prevents him from
       working. He claims he provided the guardian with proof that he receives federal disability
       benefits, which supplement his retirement funds.
¶ 10        On May 5, 2009, Marcia’s guardian filed a motion to compel discovery, alleging Jan’s
       disclosure statement was incomplete. The guardian claimed Jan failed to provide statements
       from a joint savings account, supporting tax forms for his 2007 and 2008 tax filings, annual
       statements from the settlement annuity, and documents regarding a $20,000 investment Jan
       made in Digital Campaign, Inc. The guardian alleged Jan acted “willfully and
       contumaciously” in failing to comply with her discovery requests. Jan “vigorously denied”
       the guardian’s allegations.
¶ 11        Following the filing of the motion to compel discovery, Jan sought leave to voluntarily
       dismiss his petition for dissolution, alleging it was never his “wish to divorce his wife but
       [he] was willing to accommodate the wishes of the wife’s daughter [and] *** guardian.” Jan
       further alleged the guardian had ignored his proposed “Marital Settlement Agreement” in
       favor of seeking additional discovery. According to the motion, the additional discovery the
       guardian demanded was expensive and caused him distress, which negatively affected his
       health. The guardian responded that Jan sought dismissal of his dissolution petition to avoid
       disclosing his assets.

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¶ 12       In July 2009, the trial court granted Jan’s request to voluntarily dismiss his petition for
       dissolution. The dismissal order provided that henceforth Marcia would be designated the
       petitioner in the parties’ dissolution action.
¶ 13       On September 16, 2009, Jan filed an emergency motion to appoint a guardian ad litem
       to determine whether Marcia wished to be divorced from him. Because the court deemed it
       not an emergency, the court made no ruling on the motion. On September 25, 2009, Jan filed
       a second motion seeking the appointment of a guardian ad litem. On October 7, 2009, the
       court determined that Jan’s motion should be filed in probate court, which Jan did on
       October 19, 2009.
¶ 14       On January 5, 2010, without addressing Jan’s request to appoint a guardian ad litem, the
       probate court entered an order concluding that “Guardian Kara Hibler has no authority to
       prosecute a petition for dissolution of marriage.”
¶ 15       Thereafter, Jan moved before the divorce court to strike and dismiss Marcia’s dissolution
       action. Jan attached an affidavit averring that Marcia had indicated she did not wish to be
       divorced from him. The parties filed briefs on the issue of the guardian’s authority to proceed
       with the only dissolution petition pending.
¶ 16       On April 30, 2010, in a written order, the divorce court granted Jan’s motion to dismiss
       Marcia’s petition for dissolution of marriage. The court determined that under two supreme
       court cases, the plenary guardian had no authority to prosecute the petition.
¶ 17       Marcia’s guardian timely appeals.

¶ 18                                         ANALYSIS
¶ 19       In In re Marriage of Drews, 115 Ill. 2d 201, 203-04 (1986), the Illinois Supreme Court
       addressed the issue: “Does a plenary guardian of a disabled adult have standing to maintain
       an action for the dissolution of a ward’s marriage?” The issue had been resolved in many
       decisions from other jurisdictions. “We begin by noting that the issue before us is not novel.
       It has been addressed over the years by the courts of a number of jurisdictions. Research
       reveals a strong majority rule that, absent statutory authorization, a guardian cannot maintain
       an action, on behalf of a ward, for the dissolution of a ward’s marriage. [Citations.]” Id. at
       203. The court noted that Illinois had adopted this majority position early in our
       jurisprudence, citing Pyott v. Pyott, 191 Ill. 280, 288 (1901), and Iago v. Iago, 168 Ill. 339,
       341 (1897), though the rule was not applied in either case. In Pyott, “the guardian sought
       annulment, not dissolution, of the ward’s marriage.” Drews, 115 Ill. 2d at 204. In Iago, “the
       guardian was defending, not maintaining, an action for dissolution brought against the ward.”
       Id. at 204-05. Nonetheless, the court concluded “Illinois follows the majority rule.” Id. at
       205. The court explained its interpretation of the authority granted in section 11a–18(c) of
       the Probate Act of 1975 (Act) as authorizing a plenary guardian to act on behalf of a ward
       in all legal proceedings that are financial, but not personal, in nature. Id. at 206; Ill. Rev.
       Stat. 1983, ch. 110 1/2, ¶ 11a–18(c) (now 755 ILCS 5/11a–18 (West 2008)).
¶ 20       Much as the guardian argues before us, Justice Simon argued in dissent that “both the
       statute and our case law have always held that ‘the primary consideration is the best interest
       of the incompetent.’ [Citations.] *** By dismissing this action before determining whether

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       the claim alleged was in the best interest of the ward, the circuit court has avoided its
       obligation to keep the interest of the ward paramount.” Drews, 115 Ill. 2d at 207-08 (Simon,
       J., dissenting) (quoting Kinnett v. Hood, 25 Ill. 2d 600, 602 (1962)).
¶ 21        In In re Marriage of Burgess, 189 Ill. 2d 270 (2000), our supreme court determined that
       the bar in Drews does not apply to a dissolution petition that was filed before a guardian is
       appointed for the petitioning spouse.
                “[W]e find that the strict rule adopted in Drews, requiring express statutory authority
                for a guardian to act, should not be applied in this case. ***
                     The issue presented in the case currently before us was not decided in Drews.
                Whereas Drews involved a guardian’s power to initiate dissolution of marriage
                proceedings on behalf of a ward, [the petitioner’s] case concerns a guardian’s
                authority to continue a ward’s dissolution of marriage action.” (Emphasis in original.)
                Id. at 274-75.
       The court held that policy reasons underlying the decision in Drews “are particular to the
       facts in that case and are inapposite in the circumstances presented by the instant case.” Id.
       at 275.
¶ 22        The guardian argues that the limitation on a guardian’s authority based on the dichotomy
       between financial and personal matters has been undermined in a recent decision of this
       court, citing In re Estate of K.E.J., 382 Ill. App. 3d 401 (2008). The guardian contends that
       this “modern case law” allows a guardian to consent to personal decisions so long as
       procedural and substantive safeguards are met at a best interest hearing. She claims the
       record here shows that it is in Marcia’s best interest to be divorced from Jan and the circuit
       court erred in dismissing her petition without first conducting a best interest hearing. She
       argues the parties’ incompatible views of the case compel an examination of the best interest
       of Marcia by the circuit court before the guardian can be barred from pursuing the dissolution
       petition. The guardian contends the circuit court erred in its application of the blanket
       prohibition announced in Drews. She urges that a best interest exception should be read into
       the Burgess decision, which found “the strict rule adopted in Drews” did not apply under the
       particular facts presented. Burgess, 189 Ill. 2d at 274.
¶ 23        While the facts in this case may implicate different policy reasons than in Drews in light
       of Jan’s filing of a petition for dissolution of marriage only to dismiss it after the guardian
       filed a counterpetition, as our colleague in dissent observes, once the guardian’s
       counterpetition became the only petition pending, we can find no meaningful distinction with
       the issue resolved in Drews. As the supreme court stated in Burgess, “Drews involved a
       guardian’s power to initiate dissolution of marriage proceedings on behalf of a ward.”
       (Emphasis in original.) Id. If we were to uphold the guardian’s authority to proceed with the
       petition in this case, where the guardian initiated the counterpetition for dissolution of
       marriage and it then became the only petition pending following the dismissal of Jan’s
       petition, there would be little left to the policy reason that girds the rule that a guardian may
       not initiate a dissolution petition on behalf of a ward. A dissolution action remains personal
       in nature. See Drews, 115 Ill. 2d at 206. The authority the guardian needs to proceed with a
       dissolution of marriage, after she filed a counterpetition to Jan’s petition and Jan dismissed


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       his petition, cannot be found in the Act as it has been interpreted by Drews and Burgess, even
       in the face of the guardian’s contention that a hearing would demonstrate that the best
       interest of Marcia favors permitting her dissolution petition to go forward.
¶ 24        We note that after the appellate court issued its opinion in Burgess, which applied the
       Drews decision to preclude a dissolution action then pending and which contained a special
       concurrence emphasizing “the strong legal and public policy reasons for allowing a disabled
       adult plenary guardian to continue a dissolution of marriage originally filed by the disabled
       adult” (In re Marriage of Burgess, 302 Ill. App. 3d 807, 812 (1998) (Tully, J., specially
       concurring)), the legislature amended the probate statute, effective January 1, 2000, granting
       a guardian the specific authority to continue a dissolution proceeding filed prior to a plenary
       guardian being appointed. 755 ILCS 5/11a–17 (West 2008). This amendment prompted a
       special concurrence to the supreme court’s decision permitting the dissolution action to
       continue as “wholly unnecessary and irrelevant.” Burgess, 189 Ill. 2d at 282 (Rathje, J.,
       specially concurring).
¶ 25        Section 11a–17 of the Act was amended to authorize a guardian to “maintain” a
       dissolution action “[i]f the ward filed a petition for dissolution of marriage *** before the
       ward was adjudicated a disabled person.” 755 ILCS 5/11a–17(a–5) (West 2008). We cannot
       read into this narrow authority to “maintain” a dissolution action the authority of a guardian
       to continue with a counterpetition for dissolution after the initial petition for dissolution by
       the nondisabled spouse is dismissed.
¶ 26        We find the circumstances in this case to be indistinguishable from the circumstances
       where the guardian files “an action, on behalf of a ward, for the dissolution of a ward’s
       marriage.” See Drews, 115 Ill. 2d at 203. Had the legislature intended to grant a guardian the
       broader duty to proceed to conclusion on a counterpetition for dissolution of marriage, after
       it is converted to the sole petition for dissolution, the legislature would have done so. We
       cannot read such authority into the statute. Ultsch v. Illinois Municipal Retirement Fund, 226
       Ill. 2d 169, 184 (2007) (“There is no rule of statutory construction that authorizes a court to
       declare that the legislature did not mean what the plain language of the statute says.” (citing
       Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320-21 (2003))).
¶ 27        We can only suggest that the legislature once again amend the statute to permit a
       dissolution of marriage by a ward under the circumstances present in this case, consistent
       with the position taken by Justice Simon in his dissent in Drews. Drews, 115 Ill. 2d at 208
       (Simon, J., dissenting); see Village of Bellwood v. American National Bank & Trust Co. of
       Chicago, 2011 Il App (1st) 093115, ¶ 41 (Cunningham, J., specially concurring) (advocating
       the legislature “craft language to prevent unintended consequences and unfair results”).
¶ 28        We also note the “strong majority rule,” recognized and followed by the Drews court in
       1986, may not be so “strong.” See, e.g., In re Salesky, 958 A.2d 948, 953–54 (N.H. 2008)
       (under the New Hampshire statutory scheme, a probate court may enlarge the guardian’s
       duties: “The only limitation upon the probate court’s authority to impose additional duties
       upon a guardian is that the duties be ‘desirable for the best interests of the ward.’ ”); In re
       Marriage of Ruvalcaba, 850 P.2d 674, 682 (Ariz. Ct. App. 1993) (the court allowed the
       guardian to initiate the dissolution proceeding on behalf of the ward and applied the


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       “substituted judgment” standard to determine if dissolution was warranted because the ward
       manifested an intent to be divorced while competent); In re Marriage of Gannon, 702 P.2d
       465, 467 (Wash. 1985) (As a general rule, a guardian cannot initiate a dissolution proceeding
       because marriage is too personal, but there may be circumstances in which this may be
       authorized: “Unless this course of action is available, the competent party is vested with
       absolute, final control over the marriage. This is not equitable. *** [Citations.] In such
       situations the court’s primary consideration must be the best interests of the ward, although
       the court must also bear in mind possible legal obligations to a spouse.”).

¶ 29                                     CONCLUSION
¶ 30       Like the circuit court below, we are constrained by our supreme court’s decisions in
       Drews and Burgess to rule that a plenary guardian does not have authority to seek a
       dissolution of marriage on behalf of her ward when the counterpetition for dissolution filed
       on behalf of the ward becomes the only dissolution petition pending. The judgment of the
       circuit court is affirmed.
¶ 31       Affirmed.

¶ 32       JUSTICE CAHILL, dissenting:
¶ 33       The majority believes In re Marriage of Drews, 115 Ill. 2d 201 (1986), prohibits a
       guardian from filing a counterpetition for dissolution of marriage on behalf of a ward if the
       non-disabled spouse dismisses the original petition. Apparently, if the non-disabled spouse
       had persisted in his petition, the guardian would be allowed to continue to defend on the
       ward’s behalf, which would include the power to make decisions the guardian believes to be
       in the best interest of the ward.
¶ 34       If this is so, I believe Drews can be limited to cases initiated by the guardian of the
       disabled spouse. I would remand this case with directions to the trial court to decide whether
       the counterpetition filed by the guardian is in the best interest of the ward.




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