In Re Marriage of Epsteen
The plaintiff, as guardian of her disabled adult daughter, is seeking financial support from her ex-husband’s estate. Two judges in the trial court dismissed four counts of her complaint. Three were dismissed because they were not timely filed pursuant to the nonclaim statute of the Probate Act of 1975 (the Probate Act) (
FACTS
Marilyn D. Epsteen, now known as Marilyn D. Zalud (Marilyn), was divorced from Peter Epsteen (Peter) on August 14, 1973, in Cook County, Illinois. Jill Ann Epsteen (Jill) was born to Marilyn and
According to a supplemental judgment for divorce entered December 21, 1973, Peter was required to pay $300 per month in child support for Jill. The judgment also required that Peter:
“i) *** pay and defray in their entirety the costs and expenses of providing for JILL ANN EPSTEEN, minor child of the parties hereto, subject to further order of this court or agreement of the parties hereon, such special therapy and education as may from time to time be requisite for the cure, treatment, alleviation or palliation of the condition of mildmental retardation and perceptual learning difficulties which the said JILL ANN EPSTEIN [sic] experiences regardless of the attainment by her of the age of majority. It is further ordered that the parties hereto join in the making of an application to competent authority of the State of Illinois, or any political subdivision thereof, for a grant or grants of funds in aid of the treatment or special education of the said JILL ANN EPSTEEN, and that to the extent that any such funds may be derived, the same shall be delivered to, and shall be and remain the property of [Peter].”
Peter was required to pay the premiums on two life insurance policies. One policy was for $100,000, and the other was for $35,000. Marilyn was the primary beneficiary of both policies. The judgment forbade Marilyn or Peter from doing anything that would
According to both parties, after the divorce Peter moved to California and resided there until his death.
On July 15, 1992, Marilyn filed a petition asking for “the award of a sum of money from the property of Peter Epsteen for the support of Jill Ann Epsteen.” In an agreed order dated July 30, 1993, the court, among other things, ordered Peter to pay $725 per month to Marilyn for Jill’s support. Marilyn’s July 15 petition was continued and set for status. In the same paragraph, the order stated: “[t]he parties stipulate and agree that the estate plan shall take effect upon Peter’s death and not during his lifetime.”
Peter died on December 8, 1997, in Palm Springs, California, leaving an estate with
California Proceedings
On March 10, 1998, Mary filed a petition for probate of will and for letters testamentary with the superior court of California, County of Riverside. Peter’s will was admitted to probate on April 13, 1998. On August 7, 1998, Marilyn, as guardian of Jill’s person and estate, filed a creditor’s claim for $11 million against Peter’s estate. In an attachment, she contended the cost of maintaining Jill was approximately $80,000 per year, and Jill’s life expectancy was 78 years, of which 41 years were remaining. Jill lived in a community living facility in Illinois and was a public charge. On October 5, 1998, Mary filed a rejection of the creditor’s claim.
On October 19, 1998, in Riverside County, California, Marilyn filed a petition for family allowance, seeking enforcement of the $725 monthly support payments, which had ceased after Peter’s death in December 1997. Mary filed an objection to the petition for family allowance, contending Jill had received $550 per month in social security benefits, which should be applied to offset any obligation the estate might have. The objection also stated Marilyn had received life insuranee proceeds in excess of $100,000, from a life insurance policy maintained by Peter for Jill’s benefit, the proceeds to be used for Jill’s support and maintenance.
On December 24, 1998, in Riverside County, California, Marilyn filed a complaint for support of disabled person and for quasi-specific performance and imposition of constructive trust, requesting an award equal to the cost of supporting and maintaining Jill for the remainder of her life, estimated at $80,000 per year and in excess of $10 million over Jill’s lifetime. The complaint set out three causes of action: (1) that the defendants — Mary, as executrix of Peter’s estate and trustee of the Epsteen Family Trust, and David Roth, as co-trustee — were liable for the support of Jill as a disabled adult child; (2) that Peter’s estate was in violation of the divorce judgment and the agreed order, by failing to pay child support, failing to pay the premiums of the two life insurance policies, and failing to provide for Jill’s support in the estate plan; and (3) that a constructive trust be imposed upon the property of the probate estate and the Epsteen Family Trust in order to provide for Jill’s support. The complaint also sought an award of miscellaneous costs incurred in caring for Jill prior to Peter’s death, in the amount of $13,243.24. The awards were to come from Peter’s estate, and then from the Epsteen Family Trust.
Mary filed a motion for summary judgment, contending the State of Illinois had exclusive jurisdiction over the court orders arising from the dissolution of marriage. She contended the California court had no power to change or modify the Illinois order; at best, the court could enforce the existing order of $725 per month in incidental support. According to Mary, this amount had been paid monthly since Peter’s death.
On May 17, 2000, the superior court of California, County of Riverside, entered an order staying the action to determine whether a suit had been filed by Marilyn in Illinois for Jill’s financial support. Marilyn
Illinois Proceedings
On April 10, 2000, Marilyn filed her complaint to enforce supplemental judgment of divorce of December 21, 1973, in the circuit court of Cook County, domestic relations division. The relevant counts for purposes of this appeal are counts III through VI. Count III sought restitution against the estate for Peter’s failure to pay premiums on the two life insurance policies, causing one policy to be terminated and the other diminished in value. Count IV sought modification of the $725 monthly support payments for Jill, pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (
Mary brought a section 2—619 motion to dismiss counts IV V and VI, contending: (1) the complaint was time-barred, pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act and section 18—12 of the Probate Act, requiring a claim to be brought within two years of the decedent’s death (
In a January 5, 2001, order, Judge Edmund Ponce de Leon granted the motions to dismiss and for judgment on the pleadings as to counts IV V and VI. The court held counts IV and V were not commenced within the time limited by law (
Cross-Appeal: Motion for Sanctions
After Marilyn filed her motion to reconsider, Mary brought a motion for Supreme Court Rule 137 sanctions. 155 Ill. 2d R. 137. Mary does not provide a citation to the record for this motion, and we are unable to find a copy of the motion in the record. On May 4, 2001, Judge Ponce de Leon entered an order denying Marilyn’s motion for reconsideration and denying Mary’s motion for sanctions. Marilyn’s notice of appeal was filed May 31, 2001. Mary filed a notice of cross-appeal on June
DECISION
I. Section 2 — 619(a)(3)
Judge Ponce de Leon dismissed count VI of Marilyn’s complaint because, pursuant to
Count VI contended that in the agreed order entered July 30, 1993, Peter represented to the court that he would provide support for Jill by way of an estate plan, and he failed to make such an estate plan. The relevant paragraph in the agreed order states: “5. That the ‘Petition for Establishment for the Award of a Sum of Money from the Property of Peter Epsteen for the Support of Jill Ann Epsteen’ filed by Marilyn on the 15th day of July, 1992 is continued and set for STATUS on the_day of July, 1993 at 9:30 p.m. in Courtroom 703 at 1340 S. Michigan Avenue, Chicago, Illinois without further notice to the parties. The parties stipulate and agree that the estate plan shall take effect upon Peter’s death and not during his lifetime.” Count VI prayed for an order of the court enforcing an estate plan against Peter’s estate to provide for the care, maintenance, and welfare of Jill, for her remaining life expectancy.
In the California complaint, the second cause of action contended: “the provisions of Peter Epsteen’s Last Will and The Epsteen Family Trust were not amended thereafter to provide for Jill’s support and maintenance, that Jill is not a beneficiary under the Epsteen Family Trust or any other entity established by Peter Epsteen and, accordingly, that Peter Epsteen’s estate plan did not provide for the support of Jill, contrary to the Agreed Order in the Divorce Proceeding and the representations made by and on Peter Epsteen’s behalf in connection therewith.” The complaint contended that the estate was liable for the support and maintenance of Jill, or if the estate was inadequate, the defendants as trustees were hable. The third cause of action in California alleged the same basis and asked for the remedies of quasi-specific performance and the imposition of a constructive trust on the assets of the estate for Jill’s support and maintenance.
Factors a court should consider in deciding whether to dismiss a case under
The section refers to the “same cause,” not the “same cause of action.” Actions are “for the same cause” when “relief is requested on substantially the same set of facts.” Skolnick v. Martin,
We find the trial court did not abuse its discretion in dismissing count VI under
It appears that the trial court applied the proper analysis in balancing the policy of avoiding duplicative litigation against the interests of the plaintiff. California has a greater interest in litigation over an interest in Peter’s estate since that is where the estate is located and where Epsteen’s will was admitted to probate.
Marilyn does not respond to the contention that the lawsuits in Illinois and California involve the same parties and the same cause. Rather, she contends the dismissal of count VI as a split action improperly rewards legal maneuvering by the defendants. According to Marilyn, she was forced to pursue her action against the estate in California because the Illinois courts lacked subject matter jurisdiction over the estate.
Most of Marilyn’s claims live on in the California litigation. See Zalud v. Epsteen, No. E031075 (Cal. Ct. App. December 23, 2002). In the unreported California appellate opinion, the court first held the trial court did not err in granting Mary’s motion for summary judgment as to the claim for quasi-specific performance. Marilyn had asked for quasi-specific performance of Peter’s agreement in the 1993 agreed order to provide for Jill’s future support as part of his estate plan. The court held there was no such agreement created by the language
Whether one cause of action was disposed of through summary judgment is irrelevant to our
II.
Judge Ponce de Leon dismissed counts IV and V and Judge Katz dismissed count III, as time-barred under
“(d) *** When a parent obligated to pay support or educational expenses, or both, dies, the amount of support or educational expenses, or both, may be enforced, modified, revoked or commuted to a lump sum payment, as equity may require, and that determination may be provided for at the time of the dissolution of the marriage or thereafter.
(e) The right to petition for support or educational expenses, or both, under Sections 505 and 513 is not extinguished by the death of a parent. Upon a petition filed before or after a parent’s death, the court may award sums of money out of the decedent’s estate for the child’s support or educational expenses, or both, as equity may require. The time within which a claim may be filed against the estate of a decedent under Sections 505 and 513 and subsection (d) and this subsection shall be governed by the provisions of the Probate Act of 1975, as a barrable, noncontingent claim.”750 ILCS 5/510(d) ,(e) (West 2000).
Section 513 provides:
“(a) The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require, for the support of the child or children of the parties who have attained majority in the following instances:
(1) When the child is mentally or physically disabled and not otherwise emancipated, an application for support may be made before or after the child has attained majority” 750 ILCS 57513(a) (West 2000).
The parties agree that
“(a) Every claim against the estate of a decedent, except expenses of administration and surviving spouse’s or child’saward, is barred as to all of the decedent’s estate if: (1) Notice is given to the claimant as provided in Section 18—3 and the claimant does not file a claim with the representative or the court on or before the date stated in the notice; or
(2) Notice of disallowance is given to the claimant as provided in Section 18—11 and the claimant does not file a claim with the court on or before the date stated in the notice; or
(3) The claimant or the claimant’s address is not known to or reasonably ascertainable by the representative and the claimant does not file a claim with the representative or the court on or before the date stated in the published notice as provided in Section 18—3.
(b) Unless sooner barred under subsection (a) of this Section, all claims which could have been barred under this Section are, in any event, barred 2 years after decedent’s death, whether or not letters of office are issued upon the estate of the decedent.”755 ILCS 5/18—12(a) , (b) (West 2000).
Here, Peter died on December 8, 1997, and Marilyn filed her petition on April 10, 2000, more than two years after the date of death.
Marilyn contends her claim is not barred by
We disagree with Marilyn’s contention that her fifing a claim in California within two years of Peter’s death is sufficient to satisfy the limitations period in Illinois. She argues that the executor had notice of her claim by virtue of the fact that it was filed in California. She cites no authority in support of that proposition. Nor could we find any. We conclude
Marilyn contends she could not have filed a claim in Illinois because the courts lacked subject matter jurisdiction over Peter’s estate. However, her claim was not made under the Probate Act, but
Marilyn next contends the Illinois court failed to give full faith and credit to her timely claim filed in California. We find this argument was waived because it was never raised in the trial court. See Robinson v. Toyota Motor Credit Corp.,
Marilyn next contends the Illinois court erred when finding it had no jurisdiction to hear the case. She contends her complaint sought enforcement and modification over an existing court order, not a new claim for support, as defined by the Probate Act. Her claims, however, were not based on the Probate Act, but on
Marilyn’s final contention is that the statute of limitations should be tolled, either for a person with disabilities, pursuant to section 13—211 of the Code of Civil Procedure (
Even if
For the reasons we have given, we conclude the two trial court judges correctly dismissed counts III, IY Y and VI. We note that Judge Ponce de Leon also granted Mary’s motion for judgment on the pleadings as to counts IY Y and VI. Because Marilyn’s complaint presents a material issue of fact, that motion should have been denied. See Howard v. County of Cook,
III. Cross-Appeal: Motion for Sanctions
Mary’s motion for sanctions is not in the record. It is the appellant’s burden to present a sufficiently complete record on appeal. Foutch v. O'Bryant,
CONCLUSION
We affirm the rulings of the trial court dismissing counts III through VI of the complaint. We reverse the trial court’s order granting judgment on the pleadings as to counts IY Y and VI. We affirm the trial court’s denial of sanctions on the cross-appeal.
No. 1 — 01—2695, Affirmed in part and reversed in part.
No. 1 — 02—0925, Affirmed.
SOUTH, PJ., and HOFFMAN, J., concur.
Notes
Mary raises issues concerning Marilyn’s notice of appeal and her authority to pursue an appeal. We find no merit to these contentions.