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                                   Appellate Court                            Date: 2019.08.12
                                                                              11:18:20 -05'00'



                      Claxton v. Reeves, 2019 IL App (5th) 170200



Appellate Court         DAVI CLAXTON, Petitioner-Appellant and Cross-Appellee, v. JODI
Caption                 L. REEVES, Successor Executor and Personal Representative for
                        Gary L. Claxton, Deceased, Defendant-Appellee and Cross-
                        Appellant.



District & No.          Fifth District
                        Docket No. 5-17-0200



Rule 23 order filed     May 29, 2019
Motion to
publish granted         June 17, 2019
Opinion filed           June 17, 2019



Decision Under          Appeal from the Circuit Court of Madison County, No. 14-D-315; the
Review                  Hon. Maureen D. Schuette, Judge, presiding.



Judgment                Motion granted; cross-appeal dismissed; judgment reversed.


Counsel on              Curtis L. Blood, of Collinsville, and Kelly A. Stephan, of Alton, for
Appeal                  appellant.

                        Clifford C. Emons, of Alton, for appellee.
     Panel                     JUSTICE WELCH delivered the judgment of the court, with opinion.
                               Justices Chapman and Barberis concurred in the judgment and
                               opinion.


                                                OPINION

¶1        The petitioner, Davi Claxton (Davi), appeals the judgment of the circuit court of Madison
      County granting Gary L. Claxton’s (Gary) request to bifurcate the parties’ dissolution of
      marriage proceedings and immediately dissolving their marriage while reserving ruling on the
      disposition of the marital estate. She argues the circuit court abused its discretion in finding
      that appropriate circumstances for entering a bifurcated judgment existed. James Pepper,
      Gary’s former personal representative and executor of his estate, filed a cross-appeal from the
      circuit court’s disposition of the marital estate. Jodi L. Reeves, Gary’s current personal
      representative and successor executor of his estate, has filed a motion to withdraw the cross-
      appeal and a confession of error. For the following reasons, this court grants Reeves’s motion
      to withdraw the cross-appeal and we reverse the circuit court’s judgment.
¶2        Gary and Davi married in 1996. No children were born to the marriage. Gary adopted
      Davi’s son, Garrod, who was an adult at the time of the proceedings at issue. Prior to the
      marriage, Gary and Davi signed an antenuptial agreement, which provided, inter alia, that each
      party gave up all claims to the other’s retirement benefits and accounts. On April 21, 2014,
      Davi filed a petition seeking a judgment of legal separation and separate maintenance. Gary
      filed an answer and a counterpetition for dissolution of marriage, and a complaint for
      declaratory judgment seeking a declaration that the antenuptial agreement was valid and
      binding.
¶3        Prior to trial both parties filed position statements with the court. In her position statement,
      Davi stated that Gary’s attorney had indicated on numerous occasions that Gary’s health was
      “precarious” and that he “could pass away at any moment.”
¶4        Trial commenced on January 26, 2017. The court first heard testimony and argument
      concerning the validity of the antenuptial agreement. Davi argued that the agreement was
      unconscionable because she had no retirement benefits of her own and that while she would
      receive part of Gary’s firefighter’s pension if he died while they were married, she would get
      nothing if he died after they were divorced. The court found the antenuptial agreement to be
      valid and enforceable.
¶5        The court then proceeded on Gary’s counterpetition for dissolution of marriage. Gary
      testified that he had been an Alton firefighter from 1978 to 2013. He retired in 2013 and began
      receiving a pension. Regarding his health, Gary testified that he had been sick for a while but
      that he got really sick “over 4th of July weekend,” that he had been hospitalized in December
      of 2015, and that he had “substantial problems” with his health in the fall of 2016. At the
      conclusion of his testimony Gary sought a judgment of dissolution based on the testimony
      provided and the court’s prior determination that the antenuptial agreement was valid and
      enforceable. Davi objected, arguing that a dissolution at that time would be detrimental to her
      “given the precariousness of the health of the respondent” and the fact that all of the property
      had not been divided. The court declined to enter a judgment of dissolution at that time and
      continued the proceedings until March 6, 2017.

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¶6       On February 28, 2017, Davi filed a motion to continue, arguing that she needed more time
     to review the voluminous discovery materials she had recently received and that she was
     concerned about Gary’s ability to testify as it had come to her attention that he had been
     hospitalized for renal failure. At the March 6, 2017, hearing, Davi argued that a continuance
     was necessary because she had learned during the first day of trial that Gary had accounts with
     four different banks, which had not been previously disclosed, and that subpoenas of those
     records had produced 3000 to 4000 documents. Gary opposed the continuance, arguing that
     Davi was already aware of this information and because of his “ill health.” Based on the need
     to move expeditiously because of Gary’s “health issues,” the court continued the matter until
     March 20, 2017.
¶7       At the March 20, 2017, hearing, Davi testified that “after Gary was diagnosed with his
     illness he decided that he was terminally ill.” She believed he had been diagnosed in 2011. She
     testified that “[Gary] just knew that the doctor said, you have three to five years.” Trial
     continued on March 31, 2017. Gary was not present. His attorney explained that Gary was in
     the hospital undergoing testing for a liver transplant. Davi objected to Gary’s absence, and the
     court elected to proceed while reserving ruling on whether Gary should be required to attend.
     At the conclusion of the trial the court ordered the parties to prepare and submit proposed
     written orders. Gary’s attorney requested the court to enter a judgment of dissolution at that
     time, to which Davi objected. The following discussion then took place:
                  “THE COURT: What’s the condition of Mr. Claxton at this time?
                  MR. STEIGER: He’s doing better. He’s at Barnes. He’s going through a lot of
              testing. He’s in line for a liver transplant. But it’s—after the testimony that was fairly
              stressful on him the second day of trial, he was immediately rehospitalized, and his
              condition has been pretty dire.
                                                    ***
                  THE COURT: Is it your client’s understanding, Counsel, that he needs a transplant?
                  ***
                  MS. STEPHAN: I would imagine given his illness that he does need a transplant.
                  THE COURT: I’m gonna ask your client a question. Is it your understanding,
              ma’am, that he needs a transplant and that he’s hospitalized at this time?
                                                    ***
                  MS. CLAXTON: No, it’s not.
                                                    ***
                  THE COURT: Is it your understanding he has significant health issues?
                  [MS. CLAXTON]: Yes. He does have significant health issues.”
     The court found that based upon Gary’s serious medical condition, appropriate circumstances
     existed to warrant a bifurcated judgment, and entered a judgment of dissolution, reserving
     ruling on the disposition of property and other issues.
¶8       On April 24, 2017, Gary’s attorney filed a suggestion of death stating that Gary had died
     the previous day, and Pepper was substituted as the party respondent. On April 26, 2017, Davi
     filed a motion to reconsider the judgment of dissolution arguing, inter alia, that she had learned
     that there were no death benefits payable to any heir from Gary’s firefighter’s pension other
     than Davi and then only if the judgment of dissolution were vacated. In response, Pepper


                                                  -3-
       argued that pursuant to the antenuptial agreement Davi had no interest in or claim to Gary’s
       pension assets. Pepper also argued that a party’s impending death is an appropriate
       circumstance justifying entry of a bifurcated judgment of dissolution. On May 2, 2017, the
       court denied Davi’s motion to vacate the judgment of dissolution. Davi filed a notice of appeal
       on May 26, 2017. On June 2, 2017, the circuit court entered an order disposing of the marital
       estate. Pepper filed a notice of appeal from that order.
¶9          On appeal, Davi argues, and Reeves concedes, that the circuit court abused its discretion
       in finding that appropriate circumstances existed to enter a bifurcated judgment of dissolution.
       She contends that dissolving the parties’ marriage prior to Gary’s death deprived her of her
       survivor’s benefit under Gary’s pension without providing any benefit to Gary or his estate.
       She further argues that there was no evidence regarding why Gary wanted or needed an
       immediate dissolution of the parties’ marriage. She also notes that there is no evidence
       regarding the precise nature of Gary’s illness or whether he was facing impending death as a
       result.
¶ 10        Section 401 of the Illinois Marriage and Dissolution of Marriage Act provides in relevant
       part, “[j]udgment shall not be entered unless *** the court has considered, approved, reserved
       or made provision for *** the disposition of property. The court shall enter a judgment for
       dissolution that reserves any of these issues *** upon *** a finding by the court that
       appropriate circumstances exist.” 750 ILCS 5/401(b) (West 2016). The impending death of a
       party is an “appropriate circumstance” for entering a bifurcated judgment of dissolution. In re
       Marriage of Breashears, 2016 IL App (1st) 152404, ¶ 25. A decision to grant a request for
       bifurcation and to dissolve a marriage while reserving ruling on the marital estate is a final and
       appealable judgment and is reviewed for an abuse of discretion. Id. ¶¶ 4, 15. An appeal from
       the entry of a bifurcated judgment dissolving a marriage allows the reviewing court to consider
       only the judgment of dissolution and the bifurcation itself, and the reviewing court has no
       jurisdiction to consider other issues. In re Marriage of Tomlins, 2013 IL App (3d) 120099,
       ¶ 31 (citing In re Marriage of Bogan, 116 Ill. 2d 72, 76 (1986)). Where a party to dissolution
       of marriage proceedings dies subsequent to the entry of a judgment for dissolution but before
       judgment on reserved issues, the death does not abate the dissolution proceedings. 750 ILCS
       5/401(b) (West 2016). However, where a party to dissolution of marriage proceedings dies
       prior to the entry of a judgment for dissolution, the dissolution proceedings abate and the circuit
       court loses jurisdiction over all matters concerning the marriage relationship. In re Marriage
       of Ignatius, 338 Ill. App. 3d 652, 658 (2003).
¶ 11        Gary made no written request for a bifurcated judgment. He orally moved for a judgment
       of dissolution at the conclusion of the January 26, 2017, hearing. Although Gary made several
       references to his health during his testimony, the only argument he made in favor of entering
       a judgment of dissolution at that time was his belief that the antenuptial agreement resolved all
       other issues. The court subsequently entered a bifurcated judgment of dissolution based on
       Gary’s ill health, but as Davi notes, there is surprisingly little evidence in the record on this
       issue. Although there are numerous references to Gary’s ill health, the record does not disclose
       the exact nature of Gary’s illness, and the only evidence that his illness was terminal is Davi’s
       testimony that “after Gary was diagnosed with his illness he decided that he was terminally ill”
       and that “[Gary] just knew that the doctor said, you have three to five years.” Although Gary
       died shortly after the entry of the bifurcated judgment of dissolution, the record is silent as to
       the cause of death. We also agree that the bifurcated judgment of dissolution denied Davi


                                                    -4-
       survivor benefits from Gary’s pension while providing no benefit to Gary, his estate, or the
       marital estate.
¶ 12       Reeves has filed a confession of error in which she “concurs with and adopts [the] position
       taken by the Appellant *** and therefore agrees that this Court should reverse the decision of
       the Circuit Court *** as to the Dissolution of the marriage of Gary L. Claxton and Davi
       Claxton.” In other words, Reeves agrees that in light of the lack of actual evidence regarding
       Gary’s health and the fact that the bifurcated judgment of dissolution denied Davi survivor
       benefits from Gary’s pension, appropriate circumstances for entering a bifurcated judgment of
       dissolution did not exist. Under the circumstance of this case and in light of Reeves’s
       confession of error, we conclude that the circuit court abused its discretion in finding that
       appropriate circumstances existed to enter a bifurcated judgment of dissolution.
¶ 13       As noted above, subsequent to Davi filing her notice of appeal the circuit court entered an
       order disposing of all remaining issues. Pepper cross-appealed this order, but Reeves has filed
       a motion to withdraw and dismiss the cross-appeal. We grant that motion.
¶ 14       For the foregoing reasons, we grant Reeves’s motion to dismiss her cross-appeal, and we
       reverse the circuit court’s order dissolving Gary and Davi’s marriage.

¶ 15      Motion granted; cross-appeal dismissed; judgment reversed.




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