Karbin v. Karbin

ILLINOIS OFFICIAL REPORTS
Appellate Court

Karbin v. Karbin, 2011 IL App (1st) 101545

Appellate Court JAN KARBIN, Petitioner and Cross-Respondent-Appellee, v. MARCIA
Caption LOVENSON KARBIN, By and Through Her Guardian, Kara Hibler,
Respondent and Cross-Petitioner-Appellant.

District & No. First District, Sixth Division
Docket No. 1–10–1545

Filed June 30, 2011

Held Where a husband filed a petition for the dissolution of his marriage to a
(Note: This syllabus disabled person and the disabled person’s plenary guardian filed a
constitutes no part of counterpetition for dissolution, the trial court properly dismissed the
the opinion of the court guardian’s petition after the husband voluntarily dismissed his petition
but has been prepared and left the guardian’s petition as the only pending dissolution petition,
by the Reporter of since the Illinois Supreme Court’s rulings in Drews and Burgess that a
Decisions for the plenary guardian does not have authority to seek a dissolution of marriage
convenience of the on behalf of award applied to the instant case, and the language of section
reader.)
11a–17 of the Probate Act authorizing a guardian to “maintain” a
dissolution action if the ward filed a petition for dissolution before being
adjudicated a disabled person could not be construed as giving the
guardian authority to proceed with seeking a dissolution.

Decision Under Appeal from the Circuit Court of Cook County, No. 07–D–11313; the
Review Hon. William S. Boyd, Judge, presiding.

Judgment Affirmed.
Counsel on Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, and Linda A.
Appeal Bryceland, of Monahan & Cohen, both of Chicago, for appellant.

Jordan B. Rifis, of Law Offices of Jordan B. Rifis, PC, and Andrea M.
Button Ott, of Law Offices of Andrea M.B. Ott, LLC, both of Oak Park,
for appellee.

Panel PRESIDING JUSTICE GARCIA delivered the judgment of the court,
with opinion.
Justice McBride concurred in the judgment and opinion.
Justice Cahill dissented, with opinion

OPINION

¶1 Jan Karbin, the husband, filed a petition for dissolution of marriage from his disabled
wife, Marcia Lovenson Karbin. The wife’s plenary guardian, Kara Hibler, filed a
counterpetition for dissolution. Thereafter, the husband dismissed his petition and filed a
motion to dismiss the wife’s counterpetition based on two Illinois Supreme Court decisions
that bar a disabled person from initiating a dissolution of marriage. The circuit court agreed
that the decisions applied here and dismissed the wife’s counterpetition. The guardian claims
that a disabled person should be allowed to pursue a dissolution of marriage where
procedural and substantiative safeguards can be met at a best interest hearing. The guardian
argues the supreme court cases that stand as a bar to a guardian proceeding on behalf of a
disabled spouse as a petitioner in a dissolution petition are outdated and should be deemed
inapplicable when it can be shown that a dissolution of marriage is consonant with the best
interest of the disabled person. There is force to this argument. However, we cannot
distinguish the clear precedents of our supreme court on the proffered basis that a best
interest hearing provides adequate safeguards to permit a guardian to pursue a petition for
dissolution of marriage on behalf of a disabled person. Given the clear holdings of the
supreme court, only the legislature can provide the statutory authority the guardian seeks. We
affirm.

¶2 BACKGROUND
¶3 The parties were married on June 2, 1984. They have two children; one born to them, a
son, Jacob, who suffers from mental disability and lives in a full-time care facility, and a
daughter, Kara, Marcia’s daughter from a previous marriage, whom Jan adopted during the
parties’ marriage.
¶4 After almost 14 years of marriage, Marcia suffered brain damage and became severely

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 disabled after a car accident. Her disability requires full-time care. Jan was appointed plenary
guardian in 1997. While he was guardian, Jan established an annuity for Marcia out of the
proceeds of the large settlement award stemming from the car accident. The annuity provides
for Marcia’s lifetime care.
¶5 Jan suffers from Parkinson’s disease and, in 2004, agreed to transfer his plenary
guardianship of Marcia to their daughter, Kara, because he could no longer care for Marcia.
At the time of the guardianship transfer, the agreed order contained an agreement between
the parties regarding the distribution of funds upon the sale of the marital home. With the
approval of the guardianship transfer, the probate court approved a six-page settlement
agreement signed by the parties. After the transfer, Marcia left Illinois with her daughter and
now guardian, Kara.
¶6 At the time of the proceedings below, Marcia lived in a condominium in Ohio. When Jan
filed his dissolution petition, he was living with another woman in a townhouse in Illinois.
They jointly own the townhouse. The guardian claims that Jan is romantically involved with
the woman he resides with. Jan refutes any romantic involvement; he characterizes the co-
owner of the townhouse as his live-in caretaker.
¶7 In November 2007, Jan filed a petition for dissolution of marriage. Jan claims he did so
at the request of Marcia’s guardian with an understanding that the dissolution action would
be “uncontested and routine.” He claims they agreed that each party would retain the assets
they possessed at that time of filing and each would be responsible for their respective debts.
¶8 In May 2008, Marcia, through her plenary guardian, filed a counterpetition for
dissolution. Jan answered and discovery ensued.
¶9 The parties exchanged disclosure of assets and liabilities under Cook County Circuit
Court Rule 13.3.1 (eff. Jan. 1, 2003). Jan claims his 2007 and 2008 income statements
showed his monthly income had decreased because Parkinson’s disease prevents him from
working. He claims he provided the guardian with proof that he receives federal disability
benefits, which supplement his retirement funds.
¶ 10 On May 5, 2009, Marcia’s guardian filed a motion to compel discovery, alleging Jan’s
disclosure statement was incomplete. The guardian claimed Jan failed to provide statements
from a joint savings account, supporting tax forms for his 2007 and 2008 tax filings, annual
statements from the settlement annuity, and documents regarding a $20,000 investment Jan
made in Digital Campaign, Inc. The guardian alleged Jan acted “willfully and
contumaciously” in failing to comply with her discovery requests. Jan “vigorously denied”
the guardian’s allegations.
¶ 11 Following the filing of the motion to compel discovery, Jan sought leave to voluntarily
dismiss his petition for dissolution, alleging it was never his “wish to divorce his wife but
[he] was willing to accommodate the wishes of the wife’s daughter [and] *** guardian.” Jan
further alleged the guardian had ignored his proposed “Marital Settlement Agreement” in
favor of seeking additional discovery. According to the motion, the additional discovery the
guardian demanded was expensive and caused him distress, which negatively affected his
health. The guardian responded that Jan sought dismissal of his dissolution petition to avoid
disclosing his assets.

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¶ 12 In July 2009, the trial court granted Jan’s request to voluntarily dismiss his petition for
dissolution. The dismissal order provided that henceforth Marcia would be designated the
petitioner in the parties’ dissolution action.
¶ 13 On September 16, 2009, Jan filed an emergency motion to appoint a guardian ad litem
to determine whether Marcia wished to be divorced from him. Because the court deemed it
not an emergency, the court made no ruling on the motion. On September 25, 2009, Jan filed
a second motion seeking the appointment of a guardian ad litem. On October 7, 2009, the
court determined that Jan’s motion should be filed in probate court, which Jan did on
October 19, 2009.
¶ 14 On January 5, 2010, without addressing Jan’s request to appoint a guardian ad litem, the
probate court entered an order concluding that “Guardian Kara Hibler has no authority to
prosecute a petition for dissolution of marriage.”
¶ 15 Thereafter, Jan moved before the divorce court to strike and dismiss Marcia’s dissolution
action. Jan attached an affidavit averring that Marcia had indicated she did not wish to be
divorced from him. The parties filed briefs on the issue of the guardian’s authority to proceed
with the only dissolution petition pending.
¶ 16 On April 30, 2010, in a written order, the divorce court granted Jan’s motion to dismiss
Marcia’s petition for dissolution of marriage. The court determined that under two supreme
court cases, the plenary guardian had no authority to prosecute the petition.
¶ 17 Marcia’s guardian timely appeals.

¶ 18 ANALYSIS
¶ 19 In In re Marriage of Drews, 115 Ill. 2d 201, 203-04 (1986), the Illinois Supreme Court
addressed the issue: “Does a plenary guardian of a disabled adult have standing to maintain
an action for the dissolution of a ward’s marriage?” The issue had been resolved in many
decisions from other jurisdictions. “We begin by noting that the issue before us is not novel.
It has been addressed over the years by the courts of a number of jurisdictions. Research
reveals a strong majority rule that, absent statutory authorization, a guardian cannot maintain
an action, on behalf of a ward, for the dissolution of a ward’s marriage. [Citations.]” Id. at
203. The court noted that Illinois had adopted this majority position early in our
jurisprudence, citing Pyott v. Pyott, 191 Ill. 280, 288 (1901), and Iago v. Iago, 168 Ill. 339,
341 (1897), though the rule was not applied in either case. In Pyott, “the guardian sought
annulment, not dissolution, of the ward’s marriage.” Drews, 115 Ill. 2d at 204. In Iago, “the
guardian was defending, not maintaining, an action for dissolution brought against the ward.”
Id. at 204-05. Nonetheless, the court concluded “Illinois follows the majority rule.” Id. at
205. The court explained its interpretation of the authority granted in section 11a–18(c) of
the Probate Act of 1975 (Act) as authorizing a plenary guardian to act on behalf of a ward
in all legal proceedings that are financial, but not personal, in nature. Id. at 206; Ill. Rev.
Stat. 1983, ch. 110 1/2, ¶ 11a–18(c) (now 755 ILCS 5/11a–18 (West 2008)).
¶ 20 Much as the guardian argues before us, Justice Simon argued in dissent that “both the
statute and our case law have always held that ‘the primary consideration is the best interest
of the incompetent.’ [Citations.] *** By dismissing this action before determining whether

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 the claim alleged was in the best interest of the ward, the circuit court has avoided its
obligation to keep the interest of the ward paramount.” Drews, 115 Ill. 2d at 207-08 (Simon,
J., dissenting) (quoting Kinnett v. Hood, 25 Ill. 2d 600, 602 (1962)).
¶ 21 In In re Marriage of Burgess, 189 Ill. 2d 270 (2000), our supreme court determined that
the bar in Drews does not apply to a dissolution petition that was filed before a guardian is
appointed for the petitioning spouse.
“[W]e find that the strict rule adopted in Drews, requiring express statutory authority
for a guardian to act, should not be applied in this case. ***
The issue presented in the case currently before us was not decided in Drews.
Whereas Drews involved a guardian’s power to initiate dissolution of marriage
proceedings on behalf of a ward, [the petitioner’s] case concerns a guardian’s
authority to continue a ward’s dissolution of marriage action.” (Emphasis in original.)
Id. at 274-75.
The court held that policy reasons underlying the decision in Drews “are particular to the
facts in that case and are inapposite in the circumstances presented by the instant case.” Id.
at 275.
¶ 22 The guardian argues that the limitation on a guardian’s authority based on the dichotomy
between financial and personal matters has been undermined in a recent decision of this
court, citing In re Estate of K.E.J., 382 Ill. App. 3d 401 (2008). The guardian contends that
this “modern case law” allows a guardian to consent to personal decisions so long as
procedural and substantive safeguards are met at a best interest hearing. She claims the
record here shows that it is in Marcia’s best interest to be divorced from Jan and the circuit
court erred in dismissing her petition without first conducting a best interest hearing. She
argues the parties’ incompatible views of the case compel an examination of the best interest
of Marcia by the circuit court before the guardian can be barred from pursuing the dissolution
petition. The guardian contends the circuit court erred in its application of the blanket
prohibition announced in Drews. She urges that a best interest exception should be read into
the Burgess decision, which found “the strict rule adopted in Drews” did not apply under the
particular facts presented. Burgess, 189 Ill. 2d at 274.
¶ 23 While the facts in this case may implicate different policy reasons than in Drews in light
of Jan’s filing of a petition for dissolution of marriage only to dismiss it after the guardian
filed a counterpetition, as our colleague in dissent observes, once the guardian’s
counterpetition became the only petition pending, we can find no meaningful distinction with
the issue resolved in Drews. As the supreme court stated in Burgess, “Drews involved a
guardian’s power to initiate dissolution of marriage proceedings on behalf of a ward.”
(Emphasis in original.) Id. If we were to uphold the guardian’s authority to proceed with the
petition in this case, where the guardian initiated the counterpetition for dissolution of
marriage and it then became the only petition pending following the dismissal of Jan’s
petition, there would be little left to the policy reason that girds the rule that a guardian may
not initiate a dissolution petition on behalf of a ward. A dissolution action remains personal
in nature. See Drews, 115 Ill. 2d at 206. The authority the guardian needs to proceed with a
dissolution of marriage, after she filed a counterpetition to Jan’s petition and Jan dismissed

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 his petition, cannot be found in the Act as it has been interpreted by Drews and Burgess, even
in the face of the guardian’s contention that a hearing would demonstrate that the best
interest of Marcia favors permitting her dissolution petition to go forward.
¶ 24 We note that after the appellate court issued its opinion in Burgess, which applied the
Drews decision to preclude a dissolution action then pending and which contained a special
concurrence emphasizing “the strong legal and public policy reasons for allowing a disabled
adult plenary guardian to continue a dissolution of marriage originally filed by the disabled
adult” (In re Marriage of Burgess, 302 Ill. App. 3d 807, 812 (1998) (Tully, J., specially
concurring)), the legislature amended the probate statute, effective January 1, 2000, granting
a guardian the specific authority to continue a dissolution proceeding filed prior to a plenary
guardian being appointed. 755 ILCS 5/11a–17 (West 2008). This amendment prompted a
special concurrence to the supreme court’s decision permitting the dissolution action to
continue as “wholly unnecessary and irrelevant.” Burgess, 189 Ill. 2d at 282 (Rathje, J.,
specially concurring).
¶ 25 Section 11a–17 of the Act was amended to authorize a guardian to “maintain” a
dissolution action “[i]f the ward filed a petition for dissolution of marriage *** before the
ward was adjudicated a disabled person.” 755 ILCS 5/11a–17(a–5) (West 2008). We cannot
read into this narrow authority to “maintain” a dissolution action the authority of a guardian
to continue with a counterpetition for dissolution after the initial petition for dissolution by
the nondisabled spouse is dismissed.
¶ 26 We find the circumstances in this case to be indistinguishable from the circumstances
where the guardian files “an action, on behalf of a ward, for the dissolution of a ward’s
marriage.” See Drews, 115 Ill. 2d at 203. Had the legislature intended to grant a guardian the
broader duty to proceed to conclusion on a counterpetition for dissolution of marriage, after
it is converted to the sole petition for dissolution, the legislature would have done so. We
cannot read such authority into the statute. Ultsch v. Illinois Municipal Retirement Fund, 226
Ill. 2d 169, 184 (2007) (“There is no rule of statutory construction that authorizes a court to
declare that the legislature did not mean what the plain language of the statute says.” (citing
Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 320-21 (2003))).
¶ 27 We can only suggest that the legislature once again amend the statute to permit a
dissolution of marriage by a ward under the circumstances present in this case, consistent
with the position taken by Justice Simon in his dissent in Drews. Drews, 115 Ill. 2d at 208
(Simon, J., dissenting); see Village of Bellwood v. American National Bank & Trust Co. of
Chicago, 2011 Il App (1st) 093115, ¶ 41 (Cunningham, J., specially concurring) (advocating
the legislature “craft language to prevent unintended consequences and unfair results”).
¶ 28 We also note the “strong majority rule,” recognized and followed by the Drews court in
1986, may not be so “strong.” See, e.g., In re Salesky, 958 A.2d 948, 953–54 (N.H. 2008)
(under the New Hampshire statutory scheme, a probate court may enlarge the guardian’s
duties: “The only limitation upon the probate court’s authority to impose additional duties
upon a guardian is that the duties be ‘desirable for the best interests of the ward.’ ”); In re
Marriage of Ruvalcaba, 850 P.2d 674, 682 (Ariz. Ct. App. 1993) (the court allowed the
guardian to initiate the dissolution proceeding on behalf of the ward and applied the

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 “substituted judgment” standard to determine if dissolution was warranted because the ward
manifested an intent to be divorced while competent); In re Marriage of Gannon, 702 P.2d
465, 467 (Wash. 1985) (As a general rule, a guardian cannot initiate a dissolution proceeding
because marriage is too personal, but there may be circumstances in which this may be
authorized: “Unless this course of action is available, the competent party is vested with
absolute, final control over the marriage. This is not equitable. *** [Citations.] In such
situations the court’s primary consideration must be the best interests of the ward, although
the court must also bear in mind possible legal obligations to a spouse.”).

¶ 29 CONCLUSION
¶ 30 Like the circuit court below, we are constrained by our supreme court’s decisions in
Drews and Burgess to rule that a plenary guardian does not have authority to seek a
dissolution of marriage on behalf of her ward when the counterpetition for dissolution filed
on behalf of the ward becomes the only dissolution petition pending. The judgment of the
circuit court is affirmed.
¶ 31 Affirmed.

¶ 32 JUSTICE CAHILL, dissenting:
¶ 33 The majority believes In re Marriage of Drews, 115 Ill. 2d 201 (1986), prohibits a
guardian from filing a counterpetition for dissolution of marriage on behalf of a ward if the
non-disabled spouse dismisses the original petition. Apparently, if the non-disabled spouse
had persisted in his petition, the guardian would be allowed to continue to defend on the
ward’s behalf, which would include the power to make decisions the guardian believes to be
in the best interest of the ward.
¶ 34 If this is so, I believe Drews can be limited to cases initiated by the guardian of the
disabled spouse. I would remand this case with directions to the trial court to decide whether
the counterpetition filed by the guardian is in the best interest of the ward.

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