specially concurring:
I concur in the decision of the majority, because I agree that Mid-America had neither a right to intervene nor a right to appeal from the order ultimately denying dissolution. I write specially because I am uncertain whether Mid-America’s claimed interest was too speculative and hypothetical or too lacking in enforceability to require that it be given a right to intervene. Accordingly, I prefer not to decide the case on those grounds. I agree with the majority that Mid-America’s interest in the dissolution proceedings was only incidental. That was so because of the nature of the marital relationship and of proceedings to dissolve marriages. I would decide the case solely on the basis of the incidental nature of Mid-America’s interest.
Mid-America’s interest is deemed to be hypothetical and speculative, because respondent had .not yet filed any Jones Act case. However, Mid-America’s interest is much less so than that of those seeking intervention in the cases of In re Appointment of Special State’s Attorneys (1976) 42 Ill. App. 3d 176, 356 N.E.2d 195, or in United Steel Workers of America, Local 5292 v. Bailey (1975), 29 Ill. App. 3d 392, 329 N.E.2d 867. In the former case, the county board chairman would have been subject to contempt only if he and other officers had refused to obey a court order entered in the suit against the board. The board, as an entity, was a party to the suit. In the latter case, an employer of union workers sought to intervene in a suit brought by the union against his member workers for fines for failure to support a strike against him. The employer maintained he had an interest, because, if the union could fine his employees, the union’s bargaining power would be strengthened to his economic disadvantage. Mid-America’s interest here is more like that of the parties seeking to intervene in Bashore. They maintained that they had a right to intervene in a suit where the question of whether landowners could redeem from a tax sale was in issue, because, if redemption were allowed and made, they would have liens against the premises. Although I concurred in the Bashore opinion, I am reluctant to uphold the denial of leave to intervene here on the fact that no suit under the Jones Act had been filed. Mid-America’s lack of a sufficient interest is more basic than that.
I am also reluctant to approve denial of intervention on the ground that Mid-America’s interest does not involve an affirmative property right. In a proper case, intervention should be allowed when the decision in the case might destroy a right of defense otherwise available to the party seeking intervention. However, a marriage dissolution proceeding is not a proper case to allow such intervention.
In addition to the interests that spouses have in a proceeding to dissolve a marriage, it has been said that the State and the unemancipated children of the marriage also have an interest. (In re Fisher (1958), 15 Ill. 2d 139, 153 N.E.2d 832.) Others have an interest in the portion of the proceedings involved with division and distribution of property of the parties if they also have an interest in that property. (Baker v. Baker (1955), 6 Ill. App. 2d 557, 128 N.E.2d 616.) Other than the circuit court case of Zitouniadis v. Hawks (Va. Cir. Ct.), 1972 Am. Mar. Cas. 2133, I am unaware of any case where others have been permitted to intervene. The interests of the State and of the parties’ children are in the stability and maintenance of marriage. No person except a spouse to a marriage has any right to have it dissolved. During his lifetime, the deceased petitioner had a right to withdraw his petition for dissolution at any time, and Mid-America could not have complained. This would have been so even if, before the decree was final, petitioner had been injured, knew he was to die, and had withdrawn the petition so that respondent could file a Jones Act case. After death, the petitioner’s control of the dissolution proceeding passed to petitioner’s personal representative.
Regardless of whether petitioner had grounds for dissolution of his marriage and regardless of whether the trial court erred in refusing to dissolve the marriage, petitioner’s marital status at the time of his death was a fortuitous circumstance as far as Mid-America was concerned. Thus, any collateral consequences that status might have had on Mid-America, regardless of its importance, created only an incidental interest which was not entitled to be protected by the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.). I deem this to be the basic reason why Mid-America had no right to intervene.