In rе MARRIAGE OF HERBERT J. DREWS, JR., By his Guardian, LORRAINE DREWS, Petitioner-Appellant, and SUE ANN CARROTHERS DREWS, Respondent-Appellee
No. 84-3019
First District (4th Division)
Opinion filed December 19, 1985.
139 Ill. App. 3d 763 | 487 N.E.2d 1005
Nye, Brent & Shoenberger, Ltd., of Chicago (Constance F. Fisher, of counsel), for appellant.
JUSTICE MCMORROW delivered the opinion of the court:
Lorraine Drews (Lorraine), as legal guardian of her son Herbert Drews, Jr. (Herbert), filed a petition which requested dissolution of Herbert‘s marriage to Sue Ann Carrothers Drews (Sue Ann), distribution of their marital estate, maintenance for Herbert, and attorney fees and costs. Sue Ann filed a motion to dismiss the petition, arguing that Lorraine, as guardian of Herbert, lacked the authority to file a petition for dissolution of the marriage. The trial court granted the motion to dismiss, and Lorraine appeals.
Briefly stated, Lorraine argues that the Illinois Probate Act of 1975 (the Probate Act) (
Based upon the broad purposes of the Probate Act of 1975 and the IMDMA, the dicta of Illinois Supreme Court and appellate court decisions, the majority view of other jurisdictions, and the limited applicability of the substituted judgment doctrine, we conclude that under Illinois law a guardian is generally without the power to institute such proceedings. As a result we find no error in the trial court‘s dismissal of Lorraine‘s petition on the ground that she lacked the authority to institute marriage dissolution proceedings on Herbert‘s behalf.
FACTS
Sue Ann‘s motion to dismiss argued that Lorraine‘s petition failed to state a claim for which relief may be granted. (
In her verified petition for dissolution of marriage, Lorraine alleged that Herbert and Sue Ann were married on June 27, 1979; no children were born to the parties as a result of the marriage; and the couple had lived together from the date of the marriage until approximately May 1, 1981, on which date Herbert entered “residential placement for treatmеnt.”
At the time the petition was filed, Herbert was 31 years old and Sue Ann 28. Herbert was alleged to be “a permanently and totally disabled person, having sustained a grievous brain injury, *** unemployed and *** a resident” of a nursing home in Illinois. Sue Ann was alleged to be “employed and self-supporting.”
Lorraine claimed in the petition that since the date of Herbert‘s entry into residential placement on May 1, 1981, Sue Ann “has failed and refused to perform the duties of a wife under the circumstances and has abandoned [Herbert] to the care of his parents.” Lorraine alleged that without any fault or provocation by Herbert, Sue Ann “has been guilty of desertion and extreme and repeated mental cruelty toward [him].”
Lorraine alleged that during the marriage, Herbert and Sue Ann were able to acquire certain assets which constituted marital property and that all of such property was in Sue Ann‘s possession. She also claimed that there were substantial marital debts arising out of Herbert‘s “accident” (the date of which was not stated anywhere in the petition), and his “consequent injuries,” and that there were “enormous medical, hospital and nursing home bills.” Lorraine stated that Herbert could not support himself, nor did he have the funds with which to maintain the dissolution proceeding or to pay his costs and attorney fees. She alleged, however, that Sue Ann was able bodied and well able to support herself and that she was well able to pay Herbert‘s attorney fees and court costs for the litigation of the cause.
Based upon these allegations, Lorraine requested that the marriage of Herbert and Sue Ann be dissolved, that their marital estate be equitably distributed, that Herbert be awarded maintenance from Sue Ann, and that Herbert be awarded from Sue Ann his attorney fees and costs of suit.
In response to Lorraine‘s petition, Sue Ann filed a motion to dismiss for failure to state a claim (see
Lorraine‘s response to the motion to dismiss claimed that her plenary guardianship over Herbert included the right to institute a divorce action on Herbert‘s behalf. She attached to her response a copy of letters of office granted her on November 12, 1982, which recited in pertinent part that she was “authorized to have the care, management and investment of the ward‘s estate and the custody of the ward and to do all things required by law.”
Following a hearing, the trial court dismissed the petition with prejudice. Lorraine‘s timely appeal followed.1
OPINION
I
Our analysis begins with a consideration of whether the Probate Act of 1975 or the IMDMA specifically provide for or prohibit a guardian‘s institution of marriage dissolution proceedings. For the reasons stated below, we conclude that neither of the acts specifically allows for nor precludes it.
Section 11a-18(c) of the Probate Act of 1975 provides as follows (
“The guardian of the estate of a ward shall appear for and represent the ward in all legal proceedings unless another person is appointed for that purpose as guardian or next friend. This does not impair the pоwer of any court to appoint a
guardian ad litem or next friend to defend the interests of the ward in that court, or to appoint or allow any person as the next friend of a ward to commence, prosecute or defend any proceeding in his behalf.”
Well established rules of statutory construction require that “[t]he words used in a statute ** be given their ordinary and popularly understood meaning” (Kozak v. Retirement Board (1983), 95 Ill. 2d 211, 215, 447 N.E.2d 394), and that the pertinent language be read in the context of the entire provision of which it forms an integral part. (Estep v. Illinois Department of Public Aid (1983), 115 Ill. App. 3d 644, 647, 450 N.E.2d 1281.) Based upon these principles, we conclude that section 11a-18(c) merely specifies those individuals who may appear for and represent the ward. Its purpose is procedural in nature, in that it sets forth the guardian‘s authority to assume a legal role on behalf of the ward. Consequently, we disagree with Lorraine‘s argument that the purpose of the provision is substantive in nature by providing that a guardian may represent a ward in literally “all legal proceedings.” Cf. In re Marriage of Kutchins (1985), 136 Ill. App. 3d 45, 48-49, 482 N.E.2d 1005.
We next consider whether a guardian‘s authority to institute divorce proceedings can be implied from various provisions of the Probate Act of 1975.
Article XIa of the Illinois Probate Act of 1975 provides for the appointment of a guardian for a disabled adult. (
“Guardianship shall be utilized only as is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence. Guardianship shall be ordered only to the extent necessitated by the individual‘s actual mental, physical and adaptive limitatiоns.”
With regard to the duties of a guardian over the ward‘s personal estate, section 11a-17 provides, inter alia, that “[t]o the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and his minor and adult
Section 11a-18 sets fоrth the duties of a guardian with regard to the ward‘s financial estate. It provides in pertinent part that the guardian shall have the care, management and investment of the estate, shall manage the estate frugally, and shall apply the income and principal thereof so far as necessary for the comfort and suitable support of the ward.
Our analysis of these sections leads us to find no explicit basis or duty for a guardian‘s institution of a marriage dissolution action on behalf of the ward. In fact we observe that, to the extent that the Act refers to family and marital matters at all, it obligates the guardian 1) to care for the ward and his minor and adult dependent children, and to provide for their support, health, and education (
Neverthеless we also find unpersuasive Sue Ann‘s claim that the Probate Act of 1975 precludes a guardian‘s institution of a divorce action because the Act does not expressly provide for it. This analysis is not well taken, for it assumes that the Probate Act of 1975 specifically enumerates the actions which a guardian may undertake on behalf of a ward, whereas in fact no such specific listing is stated in the Act. Based upon Sue Ann‘s premise, the logical conclusion would be that the Act prohibits a guardian from instituting any claim on behalf of the ward since no specific enumeration is stated. This result was clearly not the intention of the Aсt, nor is it the law in Illinois. See
Our analysis of the IMDMA similarly reveals no guidance to a de-
This contention is flawed, however, since its application would preclude a guardian from appearing on behalf of a spouse who is a respondent in a dissolution action. Nevertheless, Illinois law clearly permits this. (Iago v. Iago (1897), 168 Ill. 339, 48 N.E. 30; Merneigh v. Merneigh (1954), 2 Ill. App. 2d 352, 119 N.E.2d 492.) Furthermore, section 403(a) pertains to the necessary allegations of a dissolution petition; it does not address the question of which person may institute such proceedings. Section 302(a), on the other hand, is a codification of Pyott v. Pyott (1901), 191 Ill. 280, 61 N.E. 88, which recognized the guardian‘s authority to institute an action for invalidity of a marriage on behalf of the ward. Accordingly, there is no basis for comparison of the two sections.2
Based upon the analysis set forth above, we conclude that neither the Probate Act of 1975 nor the IMDMA specifically determines whether a guardian is permitted to or prohibited from instituting an action to dissolve a ward‘s marriage to another.
Since the common law powers of guardians still exist where they are not inconsistent with Illinois statutory law (Gits v. Foreman (1935), 360 Ill. 461, 467-68, 196 N.E. 434; Hempstead v. Broad (1916), 275 Ill. 358, 363, 114 N.E. 120; Wright v. Comley (1884), 14 Ill. App. 551, 553), we turn to an analysis of Illinois common law. In this regard the parties cite to three Illinois Supreme Court Decisions (Pyott v. Pyott (1901), 191 Ill. 280, 61 N.E. 88; Iago v. Iago (1897), 168 Ill. 339, 48 N.E. 30; Bradford v. Abend (1878), 89 Ill. 78) and one Illinois Appellate Court decision (Newman v. Newman (1963), 42 Ill. App. 2d 203, 191 N.E.2d 614).
The parties’ arguments raise the question of whether these decisions constitute stare decisis with regard to the issue under review, or whether they are instead mere obiter dicta. If a rule stated in a case is “the expression of opinion upon a point in a case deliberately passed upon by the court” it is not obiter dictum but rather judicial dictum and nonetheless binding precedent. (Scovill Manufacturing Co. v. Cassidy (1916), 275 Ill. 462, 470, 114 N.E. 181.) Consequently “[w]hether a legal proposition stated in an opinion is obiter dictum is to be determined from a reading of the entire opinion. If the opinion expressed on a legal question is one casually reached by the court on an issue unrelated to the essence of the controversy or based on hypothetical facts, then it is obiter dictum.” (Larson v. Johnson (1953), 1 Ill. App. 2d 36, 40, 116 N.E.2d 187; see also Community Renewal Society v. Department of Labor (1982), 108 Ill. App. 3d 773, 779, 439 N.E.2d 975.) Illinois Supreme Court obiter dicta are not binding authority, although they may be persuasive. Williams v. Crickman (1980), 81 Ill. 2d 105, 113, 405 N.E.2d 799.
Our analysis of the above-referenced cases leads us to conclude that they serve only as dicta for the proposition that a guardian lacks the power to institute a marriage dissolution action. Bradford v. Abend (1878), 89 Ill. 78, held that a disabled spouse‘s conservator possessed the authority to institute an action to vacate a divorce judgment, on the ground that the prior decree, although founded upon the disabled spouse‘s petition for dissolution of the marriage, had been nevertheless obtained through fraud. In Iago v. Iago (1897), 168 Ill. 339, 48 N.E. 30, the court concluded that the disabled spouse‘s legal representative could also institute an action to vacate a prior divorce decree under circumstances where the divorce had been granted upon the competent spouse‘s petition for dissolution. Pyott v. Pyott (1901), 191 Ill. 280, 61 N.E. 88, concerned the question of whether a spouse‘s guardian could institute an action to
We also consider the recent decision of In re Marriage of Kutchins (1985), 136 Ill. App. 3d 45, 482 N.E.2d 1005, in which the court‘s holding was “limited to the single proposition that one who has been adjudged to be a disabled person and for whom an estate guardian has been appointed, has legal capacity to sue for dissolution of marriage.” (136 Ill. App. 3d 45, 49.) The court noted the majority rule of other jurisdictions to the effect that “a mentally incompetent person cannot sue for dissolution of marriage, either on his own behalf or by a guardian or next friend” and further commented that “Illinois has long since followed this rule,” citing to Bradford v. Abend (1878), 89 Ill. 78, and Iago v. Iago (1897), 168 Ill. 339, 48 N.E. 30. Nevertheless the court‘s analysis was centered upon a consideration of whether “the appointment of a guardian of the estate is a sufficient finding of incompetency which would bar the ward from seeking a dissolution of marriage.” (In re Marriage of Kutchins (1985), 136 Ill. App. 3d 45, 47, 482 N.E.2d 1005.) The court concluded that appointment of an estate guardian was insufficient in and of itself to preclude a ward‘s institution of such proceedings, reasoning that a finding of disability to manage one‘s estate or financial affairs “is a different and more demanding test оf mental competency than is applicable to determining whether [a ward] is competent to enter into or dissolve a marriage.” (136 Ill. App. 3d 45, 48.) Because the court in Kutchins was concerned with the capacity of a disabled spouse to institute dissolution of marriage proceedings where a guardian had been appointed over the spouse‘s estate, we conclude that its reference to the authority of a plenary guardian to commence such an action was obiter dictum.
As a result, we find no clear precedent in the above decisions that a guardian may never institute a dissolution of marriage action on behalf of the wаrd. Instead they establish that (1) a guardian or next friend may institute an action to vacate a divorce decree entered against the disabled spouse when the spouse was disabled and without guardian or next friend protection (Iago v. Iago (1897), 168 Ill. 339, 48 N.E. 30; Bradford v. Abend (1878), 89 Ill. 78; Newman v. Newman (1963), 42 Ill. App. 2d 203, 191 N.E.2d 614), and (2) a
III
Although the decisions considered above do not rise to the level of stare decisis with regard to the issue presently before us, nevertheless they remain persuasive authority on the question. In addition, the decisions of other jurisdictions, while not binding upon this court, present somе guidance to a determination of the present cause. On this basis, then, we consider the persuasive value of the decisional law of Illinois and other jurisdictions in tandem.
Our research reveals that 16 jurisdictions have considered the question of whether a guardian possesses the authority to institute dissolution of marriage proceedings on behalf of the disabled spouse. Of these, 12 have determined that a guardian lacks such power, reasoning that the guardian‘s authority was strictly regulated by a statute which did not provide for such power, or that the decision to seek dissolution of a marriage is an inherently personal right, thе exercise of which cannot or should not be delegated to a guardian. (See Wood v. Beard (Fla. App. 1958), 107 So. 2d 198, 199-201; Phillips v. Phillips (1947), 203 Ga. 106, 108-12, 45 S.E.2d 621, 622-24; State ex rel. Quear v. Madison Circuit Court (1951), 229 Ind. 503, 506-08, 99 N.E.2d 254, 256-57; Mohler v. Shank‘s Estate (1895), 93 Iowa 273, 279-80, 61 N.W. 981, 983-84; Birdzell v. Birdzell (1885), 33 Kan. 433, 435-36, 6 P. 561, 561-62; Johnson v. Johnson (1943), 294 Ky. 77, 78, 170 S.W.2d 889, 889; Higginbotham v. Higginbotham (Mo. App. 1940), 146 S.W.2d 856, 857; In re Jennings (1981), 187 N.J. Super. 55, 58-59, 453 A.2d 572, 574; Mohrmann v. Kob (1943), 291 N.Y. 181, 187-90, 51 N.E.2d 921, 923-24; Freeman v. Freeman (1977), 34
Upon considered reflection of the holdings and reasoning of the jurisprudence of this State as well as that of other jurisdictions, we determine the better view is that a guardian generally lacks the authority to institute an action for dissolution of a ward‘s marriage where the ward is unable to form an intelligent decision to seek such dissolution.
We are particularly persuaded by the consideration that, because there is no fault in a marriage that might not be forgiven by a spouse, the decision to seek marriage dissolution is a strictly personal right and a matter of personal choice and concern. Indeed, the courts in Iago, Pyott, Newman, and Kutchins all specifically recognized, albeit in dicta, that “the right to sue for an absolute divorce is a personal right and requires the intelligent action of the injured party ***.” (Pyott v. Pyott (1901), 191 Ill. 280, 288, 61 N.E. 88; see also Iago v. Iago (1897), 168 Ill. 339, 341, 48 N.E. 30; Newman v. Newman (1963), 42 Ill. App. 2d 203, 213, 191 N.E.2d 614; In re Marriage of Kutchins (1985), 136 Ill. App. 3d 45, 47, 482 N.E.2d 1005.) In addition we note that Illinois has long recognized and honored the sanctity of the marital bond. In fact the stated рurpose of the IMDMA itself is to “strengthen and preserve the integrity of marriage and safeguard family relationships ***.” (
Furthermore, we are equally mindful of the consideration that dissolution of a marriage has an enormous impact not only upon the ward, but also upon the ward‘s spouse. Dissolution severs, termi-
IV
Lorraine proposes that this court adopt decisions of other States which recognize that the guardian possesses the authority to make certain “personal” decisions on behalf of the ward based upon the doctrine of substituted judgment, and extend application of this doctrine to the context of marriage dissolution proceedings.
The doctrine of substituted judgment requires the court to “don the mental mantle of the incompetent” (In re Carson (1962), 39 Misc. 2d 544, 545, 241 N.Y.S.2d 288, 289), to “substitute itself as nearly as may be for the incompetent, and to act upon the same motives and considerations as would have moved her.” (City Bank Farmers Trust Co. v. McGowan (1945), 323 U.S. 594, 599, 89 L. Ed. 483, 489, 65 S. Ct. 496, 501.) In its traditional conception, the rule authorized the court to permit gifts from the disabled ward‘s estate to persons to whom the ward owed no duty of support. See Ex Parte Whitbread (1916), 2 Mer. Rep. 99, 35 Eng. Rep. 878; In re Buckley‘s Estate (1951), 330 Mich. 102, 47 N.W.2d 33; see also In re Guardianship of Bohac (Fla. App. 1980), 380 So. 2d 550 (gift for tax and estate planning purposes).) In its more contemporary conception the doctrine has been expanded in order to serve as a justification for authorization of a guardian‘s consent to certain medical treatments on behalf of the ward. Sеe, e.g., Strunk v. Strunk (Ky. 1969), 445 S.W.2d 145 (renal transplant); In re Moe (1982), 385 Mass. 555, 432 N.E.2d 712 (sterilization); In re Guardianship of Roe (1981), 383 Mass. 415, 421, 421 N.E.2d 40 (forcible administration of antipsychotic drugs); Superintendent of Belchertown State School v. Saikewicz (1977), 373 Mass 728, 370 N.E.2d 417 (refusal of chemotherapy); In re Conroy (1985), 98 N.J. 321, 486 A.2d 1209, modifying In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647 (withdrawal of life-support systems); In re Guardianship of Ingram (1984), 102 Wash. 2d 827, 689 P.2d 1363 (radiation or surgery).
However, in our view the facts of the present case are analogous to neither the traditional nor the contemporary conception of the substituted judgment doctrine. The record of the instant case fails to establish any facts to support the conclusion that Herbert would have wanted to seek dissolution of his marriage to Sue Ann under any cir-
CONCLUSION
Based upon the reasoning set forth above, we conclude that under Illinois law a guardian is generally without the authority to commence a marriage dissolution proceeding on behalf of the ward. Parenthetically, we recognize the possibility that there may be cоmpelling instances where it could be clearly shown that dissolution of the ward‘s marriage “is necessary to promote the well-being of the disabled person, to protect him from neglect, exploitation, or abuse, and to encourage development of his maximum self-reliance and independence” (
For the reasons stated, the order of the trial court is affirmed.
Affirmed.
JOHNSON, J., concurs.
PRESIDING JUSTICE JIGANTI, dissenting:
Lorraine Drews was appointed by the court as the plenary guardian (
The wife filed a motion to dismiss, contending that the right to file for a dissolution of a marriage is a personal right and must be brought by the spouse and сannot be maintained by a guardian on behalf of her ward. The trial court granted the motion. The result of granting the motion was, of course, to hold as a matter of law, at least under this factual setting, that a plenary guardian of the person and the estate has no legal right to seek a marriage dissolution. As a consequence, the court then cannot exercise its discretionary authority in determining whether the guardian‘s actions were in the ward‘s best interests.
The majority in considering this issue finds that there is nothing in either of the Probate Act of 1975 or in the IMDMA which either provides for or excludes the institution of the dissolution proceeding by the guаrdian. Further, the majority finds that there is no precedent in the decisions that it examined which holds that a guardian
I respectfully dissent from the holding and from the reasoning of the majority. I believe that the right to seek a divorce is encompassеd within the duties of a plenary guardian who is charged with the responsibility of acting in the ward‘s best interests. Upon appointment as a guardian, the guardian is empowered to make all necessary decisions concerning the ward‘s best interests. (
In considering the fact that the marriage dissolution is strictly a personal right, the majority expresses a noble sentiment when it says that in a marriage there is no fault that may not be forgiven. To a totally and permanently disabled ward who has been abandoned and deprived of a portion of his marital estate and is in no position to forgive, the sentimentality lacks substance. Still considering this idea that marriage dissolution is a personal right that cannot be exercised by a guardian, other courts have found that the guardian may consent to an operation (In re Guardianship of Roe (1981), 383 Mass. 415, 421, 421 N.E.2d 40, sterilization (In re Moe (1982), 385 Mass. 555, 432 N.E.2d 712), donation of a kidney (Strunk v. Strunk (Ky. 1969), 445 S.W.2d 145) and even consent to remove life support systems and allow the ward to die (In re Conroy (1985), 98 N.J. 321, 486 A.2d 1209, modifying In re Quinlan (1976), 70 N.J. 10, 355 A.2d 647). No more personal is the right to dissolve a marriage.
I would reverse this dismissal that was based on the pleadings. This matter should be remanded to that part of the trial court which established the guardianship. That judge should thoroughly consider all of the circumstances regarding the alleged abandonment and marital estate matters and determine whether the guardian‘s initiation of marriage dissolution proceedings is in the ward‘s best interests.