                                         2017 IL App (3d) 160323

                                Opinion filed April 27, 2017
     _____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                    2017

     In re MARRIAGE OF                               )  Appeal from the Circuit Court
                                                     )  of the 21st Judicial Circuit,
     DOMINIC J. FALETTI, JR., as Guardian of the )      Kankakee County, Illinois,
     Estate and Person of Dominic J. Faletti, Sr., a )
     Disabled Adult,                                 )
                                                     )
             Petitioner-Appellee,                    )
                                                     )  Appeal No. 3-16-0323
             v.                                      )  Circuit No. 14-D-188
                                                     )

     THOMAS KASHER, as Guardian of the               )

     Estate of Virginia Faletti, and                 )

     TERESA CONVERY, as Guardian of the              )

     Person of Virginia Faletti, a Disabled Adult,   )  Honorable

                                                     )  Adrienne W. Albrecht
             Respondents-Appellants.                 )  Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justices Lytton and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                 OPINION

¶1          The respondents, Thomas Kasher, guardian of the estate of Virginia Faletti, and Teresa

     Convery, guardian of the person of Virginia Faletti, appeal from the circuit court’s denial of their

     motion to vacate the bifurcated judgment of dissolution of marriage. The respondents argue the

     circuit court abused its discretion when it entered the bifurcated judgment of dissolution of

     marriage without jurisdiction, consent, or notice.
¶2                                                  FACTS

¶3          On June 3, 2014, the petitioner, Dominic J. Faletti, Jr., guardian of the estate and person

     of Dominic J. Faletti, Sr., filed a petition for dissolution of the marriage of Dominic J. Faletti Sr.

     and Virginia Faletti. Dominic and Virginia were married on April 9, 1975. Dominic and Virginia

     had no marital children. The petition alleged that Virginia had been guilty of extreme and

     repeated mental cruelty toward Dominic, irreconcilable differences had caused an irretrievable

     breakdown of the marriage, and all efforts at reconciliation had failed.

¶4          On June 24, 2014, the case was called for a hearing on the grounds for dissolution.

     Dominic J. Faletti, Jr. testified that reconciliation was no longer possible and Virginia indicated

     that she no longer wanted to maintain the marriage. The court found that irreconcilable

     differences had caused an irretrievable breakdown in the marriage of Dominic and Virginia who

     had lived apart for six months. The parties indicated that they intended to file affidavits waiving

     the remainder of the two-year separation period.

¶5          On September 12, 2014, counsel for the petitioner, Christopher Bohlen, filed a motion for

     entry of judgment of dissolution of marriage. The motion alleged that Dominic resided in a

     skilled care facility, he had no access to marital funds, and needed to apply for Medicaid. The

     motion attested “[s]o long as [Dominic] is married, he is unable to apply for Medicaid, as the

     assets belonging to both the husband and the wife would be applicable to defray any costs.” In a

     subsequent emergency motion for temporary maintenance, the petitioner alleged that Virginia

     had evicted Dominic from the marital home, and Virginia exercised total control over the

     financial assets of the parties. Thereafter, the respondents filed an emergency motion for

     temporary maintenance alleging that Virginia also resided in a skilled care facility, and she

     lacked sufficient funds to pay for her housing and care.


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¶6          On October 8, 2014, the case was called for status of discovery and presentation of the

     judgment of dissolution. In open court, Bohlen tendered to Kimberley Donald, counsel for the

     respondents, a proposed judgment of dissolution. Donald responded “I’m not giving the authority

     at this time. I need time to review it, and then I will give you *** the authority.” Bohlen

     requested a short continuance noting “[t]here’s some urgency from the standpoint of, uh, nursing

     home payments and so forth[.]” The court continued the case for status of discovery and

     presentation of judgment of dissolution.

¶7          At the October 24, 2014, hearing, Bohlen said that he had filed a motion for temporary

     maintenance because he

                    “thought that there was going to be a judgment of dissolution entered. In that

                    event, we weren’t seeking temporary maintenance—because he would then

                    become, based upon the information we had, eligible for Medicaid assistance.

                            In light of the fact, then, that there was the—After the fact, it was

                    determined there was an objection to the entry of the judgment of dissolution.

                    Bifurcated.”

     Bohlen further stated that in 2013 Virginia received a $1,066,000 medical malpractice

     settlement. Bohlen alleged that the respondents had not disclosed the location of these funds in

     their discovery. Donald explained that the money was no longer in the respondents’ control as it

     had been placed in a revocable trust for the benefit of Virginia’s biological children. Donald

     thought that Virginia no longer had the capacity to revoke the trust. Due to concerns regarding

     Virginia’s mental acuity, Donald was pursuing guardianship proceedings on behalf of Virginia.

     The court ordered the trustee and trust drafting attorney to appear at the next hearing and

     continued the case.


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¶8          At the December 16, 2014, hearing, Bohlen said that the respondents had provided vague

     and insufficient responses to his interrogatories. Attorney Roy Sabuco, who had entered his

     appearance as co-counsel for the respondents, argued that a decline in Virginia’s cognitive

     functioning had rendered her incapable of reasonably responding to the discovery requests.

     Sabuco said that they had not yet initiated guardianship proceedings for Virginia because her

     cognitive function only recently exhibited a rapid decline. Sabuco also noted that the respondents

     had not received an accounting from the petitioners of the funds held in the parties’ joint

     account. Toward the end of the hearing, Bohlen requested the entry of a bifurcated judgment of

     dissolution of marriage. Sabuco responded:

                    “we don’t have any objection philosophically with the entry of that judgment; but

                    I—I think that for the same reasons that we’re having difficulty with the

                    discovery we need the guardian to make that decision. I can represent to the Court

                    that once a guardian is appointed that—that the guardian will—will agree to the

                    entry of the judgment. But I—you know, I don’t think we’re—our client is

                    competent to make that decision on her own at this point.”

     The court continued the case for entry of judgment order.

¶9          On January 5, 2015, the case was called for presentation of the judgment order. Donald

     said that Bohlen had “an order that we are not quite ready to present.” Bohlen responded:

                    “[w]ell, that would be an editorial we. [Bohlen] is ready. This was the judgment

                    order that Sabuco had indicated that he was okay with, but wanted to make sure

                    that the guardianship for—I understand the guardianship has been filed.”




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       Bohlen asked the court to enter the judgment. Donald opposed the order noting that Virginia was

       “not competent” and a guardian had not been appointed by the probate court. The case was

       continued for status on the appointment of a guardian for Virginia.

¶ 10          On January 9, 2015, Donald reported that guardianship proceedings had not been

       completed in the probate court. The case was continued and eventually set for status on

       February 3, 2015. However, the January 23, 2015, docket entry states “judgment for dissolution

       of marriage presented, signed and ordered filed.” The entry does not mention whether the order

       was entered in open court or if either party was present. The written judgment of dissolution of

       marriage, which was filed on the same date, stated “[t]he parties have agreed to bifurcate the

       issues of grounds for the dissolution of marriage, and all remaining issues, including property,

       maintenance, and division and allocation of debt, have not yet been resolved and are reserved.”

¶ 11          On February 20, 2015, the respondents filed a motion to vacate the judgment of

       dissolution of marriage. The motion attested that the judgment was inadvertently entered and

       Teresa Convery, as guardian of Virginia’s person, did not consent to the entry of the judgment as

       it “would not have been her mother’s wish.” In response, the petitioner said that he had “no way

       of knowing whether the guardian of the person did or did not consent to the judgment order,

       however, her attorneys did consent to the judgment order prior to the time of its entry.”

¶ 12          On May 9, 2016, the court heard the respondents’ motion. Sabuco argued that, at the

       conclusion of the January 9, 2015, hearing, the case was continued to February 3, 2015, for

       status on the entry of the judgment. On January 21, 2015, the probate court granted the petition

       for guardianship and appointed guardians of the person and estate of Virginia. The guardianship

       order was entered on January 23, 2015. On the same date, Bohlen presented the judgment of

       dissolution of marriage to the court while the respondents were not present. Sabuco argued that


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       the case was set for presentation of the judgment on February 3, 2015, and the respondents

       received no notice of the January 23, 2015, entry of the bifurcated judgment of dissolution of

       marriage. Sabuco contended that Convery told the respondents’ attorneys that Virginia did not

       want the dissolution because of her strong Catholic background. As a result, Sabuco and Donald

       intended to object to the entry of the judgment at the February 3, 2015, hearing.

¶ 13          In its ruling, the court noted that the case was filed on June 3, 2014. Shortly thereafter,

       the parties conducted a grounds for divorce hearing and neither party objected to the grounds

       heard. The court found:

                      “on December 16th, this Court—in conversation with Counsel, with everyone

                      there, said, Judge, we just need to enter a guardianship and then we’ll enter the

                      judgment order. That was represented by Counsel.

                                Then after that—and—and then, the Court was astounded because both

                      counsels stood there, after this case had been pending for six months and said,

                      Judge, we don’t think our client is competent, we think we need a guardianship,

                      after the case had been pending and these attorneys had been representing this

                      person.

                                So then they filed the guardianship, and the Court gave them an

                      opportunity to do that and time to do that repeatedly. The Court kept resetting this

                      for entry of a judgment order because that’s what the attorneys had indicated to

                      the Court was going to happen.

                                This is not a matter of somebody running in and sneaking in. This is a

                      matter of the Court saying, Okay, where’s the order of guardianship, where’s the

                      judgment order, because that’s where this Court was going.


                                                         6

        Because, honestly, this is a dispute not between the parents and the – this

is a—this is—this is an effort on the part of the adult children to get an advantage

with regards to whatever estate—which the Court wasn’t allowed to find out what

it amounted to because they’re—the—of the intransigence of the children of

Virginia.

        So then the order gets signed. All this Court understood from the attorneys

that it was waiting for was an order of guardianship. And because the grounds had

already been heard, the case had already been filed without any objection, that’s

all this Court was waiting for.

        Both parties were in fragile health. The—both parties were—were in

nursing homes. The Court understood that at the time. Both parties were not

managing their own finances. Their adult children were. So the fault in this case

does not fly with either Mr. Faletti or Mrs. Faletti. It lies within their adult

children.

        And to refuse to enter the order and to vacate the order would, in this

Court’s opinion, validate all of the efforts at obfuscation and delay on the part of

Virginia’s children because that’s what happened in this case.

        It’s a straightforward, simple case. There was a grounds hearing, it was

not contested, and the parties agreed that they would enter an order, and then we

have—and in the meantime, we have delay. And the delay is caused entirely by

Virginia Faletti’s children.

        Therefore, because there was nothing done untoward—the transcripts are

clear. At every stage, the Court is saying, Where’s the order, where’s the order,


                                   7

                      where’s the order? The order was handed up. There was no objection to it. We

                      were simply waiting for the guardianship. That’s the Court’s understanding, that’s

                      Mr. Bohlen’s understanding, and that’s the impression that was given to this

                      Court by the attorneys for Virginia Faletti.

                              So for those reasons, the motion to vacate will be denied.”

¶ 14          The respondents appeal from the court’s denial of their motion to vacate the judgment of

       dissolution.

¶ 15                                               ANALYSIS

¶ 16          The respondents argue that the denial of their motion to vacate the bifurcated judgment of

       dissolution of marriage was the result of an abuse of discretion because neither Virginia nor her

       guardians consented to the entry of the judgment.

¶ 17          Section 2-1203(a) of the Code of Civil Procedure permits a party to move to vacate a

       civil judgment 30 days after its entry. 735 ILCS 5/2-1203(a) (West 2014). We review the court’s

       denial of a motion to determine if the court abused its discretion and did substantial justice

       between the parties. In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414 (1993).

¶ 18          Under the Illinois Marriage and Dissolution of Marriage Act, a court may enter a

       judgment of dissolution of marriage where

                      “the spouses have lived separate and apart for a continuous period in excess of 2

                      years and irreconcilable differences have caused the irretrievable breakdown of

                      the marriage and the court determines 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).




                                                        8

       The spouses may waive the two years separation period if they have lived separate and apart for

       a continuous period of at least six months and they file a written waiver with the court. Id. The

       court shall not enter judgment unless it has jurisdiction and it considered, approved or reserved

       ruling on issues related to child custody and support, spousal support, and property disposition.

       750 ILCS 5/401(b) (West 2014). Where the court reserves any of these issues, it may enter a

       bifurcated judgment “either upon (i) agreement of the parties, or (ii) motion of either party and a

       finding by the court that appropriate circumstances exist.” Id.

¶ 19          The judgment and the court’s oral ruling on the respondents’ motion to vacate the

       dissolution establish that the court thought that the parties had consented to the entry of a

       bifurcated judgment of dissolution of marriage prior to the entry of the order on January 23,

       2015. The court believed that, as there was no objection to the bifurcated judgment from the

       attorneys, it was “simply waiting for the guardianship.” However, the record does not support the

       court’s ruling as the respondents’ attorneys had not consented to the entry of the judgment and

       had expressly reserved the decision on whether to consent to the order for the appointed

       guardian.

¶ 20          Throughout the record, counsel for the respondents withheld its consent to the entry of

       the judgment. On October 8, 2014, Donald stated that she was not giving Bohlen permission to

       enter the dissolution as she needed time to review it. On October 24, 2014, Bohlen recognized

       that, at the prior hearing, “it was determined there was an objection to the entry of the judgment

       of dissolution.” Then, on December 16, 2014, Sabuco said “we don’t have any objection

       philosophically with the entry of that judgment; but *** we need the guardian to make that

       decision.” (Emphasis added.)




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¶ 21          The distinction between “not objecting” and “consenting to” the entry of the judgment is

       paramount to our review of the court’s ruling. The court could only enter a bifurcated judgment

       if the parties consented to it or the court made a finding that appropriate circumstances existed.

       Id. The second clause is not at issue as there is no indication that the court made a finding that

       “appropriate circumstances” required entry of the bifurcated judgment. Id. Instead the court

       found “the parties agreed that they would enter an order.” Thus, we must determine if the record

       establishes that the respondents consented to the entry of the bifurcated judgment.

¶ 22          “Giving consent and offering no objection are different acts.” Mulcahey v. Vehon, 229 Ill.

       App. 454, 471 (1923). A party who does not object to a proceeding assumes a passive position.

       Id. He is neither agreeing to the proposal nor opposing it. Id. In contrast, by providing consent, a

       party assumes an active position in furtherance of the proposal. Id.

¶ 23          From our review of the record, there is no indication that the respondents consented to the

       entry of the bifurcated judgment. Specifically, Sabuco expressly reserved the respondents’

       decision on whether to consent to the judgment for Virginia’s appointed guardian. Consistent

       with Sabuco’s statement, at the January 5, 2015, hearing, Donald reiterated that the respondents

       were not yet ready to consent to the entry of the judgment as the guardianship proceedings had

       not been resolved. On January 9, 2015, Donald reported that the guardianship proceedings were

       still in progress and the case was continued to February 3, 2015, for status on the entry of the

       judgment. Bohlen circumvented the February 3, 2015, status date by filing the bifurcated

       judgment, which the respondents had consistently withheld consent to, on January 23, 2015. The

       guardians of Virginia’s estate and person were appointed on the same date, and there is no

       indication in the record that either of Virginia’s guardians appeared in court on January 23, 2015,

       to expressly consent to the entry of the judgment. Therefore, the record establishes that the


                                                        10 

       judgment was entered without the respondents’ consent, and the court abused its discretion and

       duty to do substantial justice between the parties when it denied the respondents’ motion to

       vacate the judgment.

¶ 24          In his appellee’s brief, the petitioner argues that Sabuco had consented to the entry of the

       judgment on behalf of the guardian when he stated “I can represent to the Court that once a

       guardian is appointed, that—that the guardian will—will agree to the entry of the judgment.”

       This interpretation of Sabuco’s statement is entirely inconsistent with the purpose of appointing a

       guardian and impermissibly infringes on the statutory obligations of the guardian.

¶ 25          During the pendency of this case, Sabuco and Donald initiated guardianship proceedings

       after observing that Virginia’s mental acuity had rapidly declined. While these proceedings

       slowed the progress of the underlying divorce case, Sabuco and Donald had a professional

       obligation to initiate the guardianship proceedings after they observed Virginia’s cognitive

       decline. Ill. Rs. Prof’l Conduct R. 1.14(b) (eff. Jan. 1, 2010). Once appointed, the guardian of

       Virginia’s person was empowered to “make provisions for [Virginia’s] support, care, comfort,

       health, education and maintenance.” 755 ILCS 5/11a-17(a) (West 2014). Such decisions were to

       be made consistent with Virginia’s “personal, philosophical, religious and moral beliefs, and

       ethical values.” 755 ILCS 5/11a-17(e) (West 2014).

¶ 26          The motion to vacate and Sabuco’s argument at the hearing on the motion establish that

       Convery, as guardian of Virginia’s person, sought to exercise her power to make provisions for

       Virginia that were consistent with Virginia’s personal and religious beliefs. 755 ILCS 5/11a­

       17(a), (e) (West 2014). Specifically, Convery told the attorneys that Virginia would not want a

       divorce because of her strong Catholic beliefs. Additionally, Convery felt that the dissolution

       “would not have been her mother’s wish.” These representations establish that Convery did not


                                                       11 

       intend to consent to the entry of the bifurcated judgment of dissolution. Instead, Convery

       reasonably intended to exercise her statutory duties at the February 3, 2015, hearing, to oppose

       the entry of the bifurcated judgment of dissolution of marriage. Id. To interpret Sabuco’s

       prospective statement that the guardian “will agree to the entry of the judgment” as binding on

       the later-appointed guardian would render the guardianship proceedings a mere formality. Such a

       result is entirely inconsistent with the statutory role of a guardian of the person. See 755 ILCS

       5/11a-17 (West 2014). We conclude that Sabuco’s representation that the guardian would

       consent to the entry of the judgment did not bind the guardian and was not prospective consent.

¶ 27                                            CONCLUSION

¶ 28          The judgment of the circuit court of Kankakee County is reversed. The cause is remanded

       with directions to vacate the bifurcated judgment of dissolution of marriage and conduct any

       further proceedings. Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (“In all appeals the reviewing

       court may, in its discretion, and on such terms as it deems just, *** enter any judgment and make

       any order that ought to have been given or made, and make any other and further orders and

       grant any relief *** that the case may require.”).

¶ 29          Reversed and remanded with directions.




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