*1 rapidly circumstances is not of them. developing one
By ignoring significant number of factors in mitiga- tion, and considering a improperly factor supposed ag- gravation, the trial judge sentencing abused his discre- tion. That abuse has here resulted in miscarriage of I justice. therefore dissent.
(No. 63005.
In re MARRIAGE OF HERBERT DREWS, JR., J.
SUE ANN CARROTHERS DREWS, Appellee (Lorraine Drews, Guardian, Appellant).
Opinion Rehearing December 30, 1987. January denied SIMON, J., dissenting. *2 Associates, Chicago, appel-
Sandra G. & of Nye lant. Fleck, Ltd., B.
Schiller, (David DuCanto & of Chicago Siewerth, of counsel), appellee. Yavitz and Sarane C. court: delivered the JUSTICE MORAN opinion Drews, of Petitioner, Lorraine as plenary guardian Drews, Jr., for disso- son, her Herbert J. petition Cook lution his in the circuit court of Drews, ap- Sue Ann Carrothers County. Respondent, with and filed motion dismiss peared petition of action. for failure to state cause prejudice memo The trial court ordered submit parties Af their randa law support respective positions. submitted, ter the memoranda court reviewing motion to with granted dismiss respondent’s petition affirmed, concluding A divided prejudice. appellate authority law give Illinois does for the dissolution of proceeding institute 3d We (139 peti granted Rule 315 Court pursuant Supreme tioner’s appeal (103 Ill. 2d R. aof peti
We note that we are the dismissal reviewing Therefore, facts contained tion. the well-pleaded Knox Col as for dissolution will be taken true. petition lege Corp. Celotex Ill. 2d in June son were married respondent Petitioner’s and as and 1979 and thereafter resided husband together a se- son sustained wife. In October petitioner’s of an as a disabling injury vere and head consequence in her role as continued Respondent accident. automobile wife until at she May residing which time ceased in the marital home and abandoned her to his husband parents’ care. As a and result her son’s per- manent and total disability, petitioner sought over his estate and guardianship person. As plenary guardian, petitioner had of the ward. custody She also had authority his estate as as manage well “to do all acts law.” required by Under the authority her appointment plenary guardian, filed for dissolution of his marriage.
Petitioner alleged respondent was of de- “guilty sertion and extreme and repeated mental cruelty” further alleged that respondent was possession sub- all of stantially the marital property. Petitioner, on be- half of her sought judgment dissolution, equita- ble distribution of the marital property, an award of from to the respondent ward.
Respondent moved to dismiss the with petition preju- *3 dice, that specifically claiming petitioner was without to maintain an action for the her ward’s marriage. The motion was granted.
A single issue is a presented for decision. Does ple- a nary disabled adult have to main- an tain action for the dissolution of a ward’s marriage? We begin by that the issue is noting before us novel. It has been addressed over years by a courts of number of Research jurisdictions. reveals that, rule strong majority authorization, absent statutory cannot action, maintain an ward, for the dissolution of a ward’s v. marriage. Wood Beard 198, 200; Dist. Ct. (Fla. 1958), 107 So. 2d App. v. Phillips Phillips (1947), 106, 108-09, 112, 203 Ga. 45 Quear ex v. 621, S.E.2d State rel. Madison 622, 624; Circuit Court 229 (1951), 503, 504-05, Ind. 99 N.E.2d Mohler v. Shank's Estate 254, 255; 273, (1895), 93 Iowa v. Birdzell Birdzell 277-79, 981, 983; 61 N.W. 33 (1885), 204 v. Johnson Johnson 561, 561-62; 433, 435-36, 6 P.
Kan. Stevens 889-90; 77, 78, 889, 170 294 S.W.2d (1943), Ky. Higgin- v. 162; Stevens 446, 266 Mich. 254 N.W. (1934), botham v. Higginbotham 146 (Mo. App. 1940), Ct. re Jennings (1981), In Super. 187 N.J. 856, 857; S.W.2d Kob Mohrmann v. 574; 55, 58-59, (1943), 453 A.2d 921, 924-25; Freeman 189-90, 291 N.Y. v. Freeman 237 302-03, N.C. (1977), App. 34 Hart v. Hart 705 Ct. 857, 858; (Tex. 1986), S.E.2d v. Campbell (1941), Campbell 242 Ala. S.W.2d cf. rule 401, 401-02 141, 142, (stating general 5 So. 2d Cohn Carlisle statutory authorization); but finding 126, 128, 260,. 37 262 (finding N.E.2d (1941), Kuta v. Kuta 154 Neb. statutory authorization); au- (finding 559 264-66, N.W.2d thorization). (Pyott position.
Illinois early adopted majority 280, 288; Iago v. Iago Pyott Ill. Pyott However, contends case because the do not. control present in those cases rule contained majority
statement dicta. We and con have reviewed cases both merely is without merit. clude that this contention with cases, recited, approval, In this court both to seek without capacity rule that but observed dissolution of ward’s Pyott, before it. on the facts inapplicable rule was annul sought the guardian rule was inapplicable The court dissolution, ment, not can bring the well-settled rule cited void. a marriage to declare action, on behalf Marriage of the Illinois 302(a)(1) with section (Compare *4 Act, guardian gives which Marriage Dissolution of and an invalidity (formerly, seek a declaration standing to 1983, ch. Rev. Stat. (Ill. nulment) Iago, was inap rule the majority 302(a)(1)).) par. not main plicable guardian defending, brought against action for dissolution taining, ward. The fact that the rule was not on applicable mere its the facts of these cases does not invalidate applica tion in the case. proper
We conclude that Illinois rule. follows Thus, authorization, a cannot guardian absent action, institute an for the dissolu- tion the ward’s marriage.
Petitioner that her status as argues confers her the upon pro instant bring She contends ceeding. that section the Pro 18(c) 11a — Act of 1975 bate Rev. Stat. par. accords her 18(c)) to seek the requisite standing 11a — of her ward’s marriage. Section 18(c) provides pertinent part 11a — the estate of a ward shall appear “[t]he and all legal proceedings unless the ward in represent another for that appointed purpose or next friend.” (Emphasis added.) Petitioner 18(c).) contends that this 11a — language encompasses to main standing necessary tain the action. present We do not agree.
An examination of section which contains the provision according legal standing to a es guardian, tablishes that the standing limited the dis charge of duties with guardian’s to a respect ward’s Thus, estate. section in relevant 18(a) provides part: care, of the estate shall have the man-
“[T]he agement estate, manage investment shall frugally estate apply and shall the income and principal so necessary the estate far as suit- comfort and support able education his minor and children, dependent persons by adult related blood or marriage who dependent upon are to support entitled *5 him, for other the court any purpose
from which ward, to for the deems be the best interests the of the ward of may approve making the agreements the court determines to be for the 110½, (Ill. Stat. ch. ward’s best interests.” Rev. 18(a).) par. 11a — to these the discharge order responsibilities, requisite to guardian is the
legal standing subpara clear, therefore, It that the ac (c). standing is graph a the ward all guardian “represent legal corded the does not initiation of an proceedings” encompass for a ward’s which is marriage, dissolution of Pyott Pyott financial, proceeding. personal, af of a over the responsibility personal the governed section 11a — 17 of by fairs of ward 110½, Act Rev. Stat. ch. par. Probate of the ward 17(a) grants Section custody 11a — 11a — on behalf of guardian, and directs the guardiap the care, comfort, provision “support, the make and such health, professional education Rev. as are Stat. appropriate.” services re Further, 17(a).) as is to “assist ward insofar quired, possible, of maximum self-reliance independence.” development (I 17(a).) par. 11a — ll. which nothing gov section We observe relationship erns to maintain or de standing grants
fend any legal proceeding. Act of 1975
The two Probate provisions guardian, a limited or plenary the duties either govern limited related read together, grant only when management on the bearing to matters directly solely remaining have scrutinized estate. We 1975 regulating guardi- Act of of the Probate provisions that none of anship disabled adults and conclude them accord limited or guardian, plenary, to maintain an action for the dissolution Thus, rule to the case at marriage. general applying we bar, hold that lacks standing necessary maintain action for the dissolution of her ward’s herein, For the reasons stated we affirm the judg- ment the appellate court.
Judgment affirmed. SIMON, JUSTICE dissenting:
The holds that a guardian lacks to initiate a dissolution-of-marriage proceeding because the action is too to fall within personal the stat ute governing guardians disabled adults. Rev. Stat. ch. 1985, 110½, pars. through 11a — 1 It 23.) reads the statute as to authorizing bring suits in to only regard financial In matters. its con reaching clusion, the majority stresses that most foreign jurisdic preclude tions guardians from dissolution-of- maintaining marriage actions absent authorization. Because the court views the Illinois statute as silent this re gard, the two occasions which the court reached this issue it adopted most position foreign v. jurisdictions (Pyott 191 Ill. Pyott (1901), 168 Iago (1897), Ill. 339), my colleagues have de termined that guardians institute may actions on of their wards. of the statute too majority’s interpretation re
strictive. to statute, According guardianship is to be utilized to “protect from neglect, exploita [the ward] tion, abuse” addition, In both the statute and our case law
have held that “the is the always primary consideration best interest the incompetent.” (Kinnett v. Hood 208 600, 602; 2d Ill. Rev. Stat.
(1962),
If
legal proceeding
the initiation
par. 11a —
to
to the
can be shown
be beneficial
though personal
ought
to
and welfare of
it.
dismissing
determining
allow
this
before
By
claim
interest of the
alleged
whether
best
to
obligation
circuit
avoided its
keep
court has
paramount.
the interest of
ward
recognized
guardians
Other
have
jurisdictions
to
decisions on the
personal
have
make
authority
Strunk
Strunk (Ky.
1969),
445
(See
behalf.
ward’s
re
In
to
a renal
transplant);
145
seek
(authority
S.W.2d
Guardianship
Roe
woman);
to
a mentally incompetent
sterilize
(authority
re
Conroy (author
ity D.W. 3d our appellate is vested with broad authority court held consent interest of a ward and could act the best even for her retarded ward when mentally an abortion life necessary protect the abortion was not make decisions allowing guardians or health. By *7 “the actions, dig a court preserves regarding and af incompetent] a person and worth nity [an rights to that the same panoply fords Superin in recognizes competent persons.” choices it State School v. Saikewicz tendent Belchertown 428. relies cases on which the two Illinois a disso lacks initiate holding Pyott Iago (Pyott 191 Ill. lution a time during 339) were written much more were relatively infrequent when divorces (see difficult to obtain grounds now marriage (irretrievable breakdown
401(2) based divorce)). Denying is, these precedents my judgment, case antiquated overly reading narrow the statute is neither the best interest I public. ward nor the would therefore hold that the should entertain the guard- ian’s its petition obligation to de- perform termine whether a dissolution of is in the best interest of the ward.
(No. 63329. MELECOSKY, STANLEY v. MCCARTHY Appellant, al., BROTHERS COMPANY et Appellees.
Opinion Rehearing December 30, 1987. January denied