In re Marriage of Faletti

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Appellate Court Date: 2017.07.28
09:24:16 -05'00'

In re Marriage of Faletti, 2017 IL App (3d) 160323

Appellate Court In re MARRIAGE OF DOMINIC J. FALETTI, JR., as Guardian of
Caption the Estate and Person of Dominic J. Faletti, Sr., a Disabled Adult,
Petitioner-Appellee, v. THOMAS KASHER, as Guardian of the
Estate of Virginia Faletti, and TERESA CONVERY, as Guardian of
the Person of Virginia Faletti, a Disabled Adult, Respondents-
Appellants.

District & No. Third District
Docket No. 3-16-0323

Filed April 27, 2017

Decision Under Appeal from the Circuit Court of Kankakee County, No. 14-D-188;
Review the Hon. Adrienne W. Albrecht, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on Roy A. Sabuco, Zachary B. Pollack, and Kimberley M. Donald, of
Appeal Sabuco, Beck, Hansen, Massino & Pollack, P.C., of Joliet, for
appellants.

Christopher W. Bohlen, of Barmann, Bohlen & Jacobi, P.C., of
Kankakee, for appellee.
 Panel PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the
court, with opinion.
Justices Lytton and Schmidt concurred in the judgment and opinion.

OPINION

¶1 The respondents, Thomas Kasher, guardian of the estate of Virginia Faletti, and Teresa
Convery, guardian of the person of Virginia Faletti, appeal from the circuit court’s denial of
their motion to vacate the bifurcated judgment of dissolution of marriage. The respondents
argue that the circuit court abused its discretion when it entered the bifurcated judgment of
dissolution of marriage without jurisdiction, consent, or notice.

¶2 FACTS
¶3 On June 3, 2014, the petitioner, Dominic J. Faletti, Jr., guardian of the estate and person of
Dominic J. Faletti, Sr., filed a petition for dissolution of the marriage of Dominic J. Faletti, Sr.,
and Virginia Faletti. Dominic and Virginia were married on April 9, 1975. Dominic and
Virginia had no marital children. The petition alleged that Virginia had been guilty of extreme
and repeated mental cruelty toward Dominic, irreconcilable differences had caused an
irretrievable breakdown of the marriage, and all efforts at reconciliation had failed.
¶4 On June 24, 2014, the case was called for a hearing on the grounds for dissolution.
Dominic J. Faletti, Jr. testified that reconciliation was no longer possible and Virginia
indicated that she no longer wanted to maintain the marriage. The court found that
irreconcilable differences had caused an irretrievable breakdown in the marriage of Dominic
and Virginia, who had lived apart for six months. The parties indicated that they intended to
file affidavits waiving the remainder of the two-year separation period.
¶5 On September 12, 2014, counsel for the petitioner, Christopher Bohlen, filed a motion for
entry of judgment of dissolution of marriage. The motion alleged that Dominic resided in a
skilled care facility, had no access to marital funds, and needed to apply for Medicaid. The
motion attested “[s]o long as [Dominic] is married, he is unable to apply for Medicaid, as the
assets belonging to both the husband and the wife would be applicable to defray any costs.” In
a subsequent emergency motion for temporary maintenance, the petitioner alleged that
Virginia had evicted Dominic from the marital home, and Virginia exercised total control over
the financial assets of the parties. Thereafter, the respondents filed an emergency motion for
temporary maintenance, alleging that Virginia also resided in a skilled care facility and lacked
sufficient funds to pay for her housing and care.
¶6 On October 8, 2014, the case was called for status of discovery and presentation of the
judgment of dissolution. In open court, Bohlen tendered to Kimberley Donald, counsel for the
respondents, a proposed judgment of dissolution. Donald responded “I’m not giving the
authority at this time. I need time to review it, and then I will give you *** the authority.”
Bohlen requested a short continuance noting “[t]here’s some urgency from the standpoint of,
uh, nursing home payments and so forth.” The court continued the case for status of discovery
and presentation of judgment of dissolution.

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¶7 At the October 24, 2014, hearing, Bohlen said that he had filed a motion for temporary
maintenance because he
“thought that there was going to be a judgment of dissolution entered. In that event, we
weren’t seeking temporary maintenance—because he would then become, based upon
the information we had, eligible for Medicaid assistance.
In light of the fact, then, that there was the—After the fact, it was determined there
was an objection to the entry of the judgment of dissolution. Bifurcated.”
Bohlen further stated that in 2013 Virginia received a $1,066,000 medical malpractice
settlement. Bohlen alleged that the respondents had not disclosed the location of these funds in
their discovery. Donald explained that the money was no longer in the respondents’ control as
it had been placed in a revocable trust for the benefit of Virginia’s biological children. Donald
thought that Virginia no longer had the capacity to revoke the trust. Due to concerns regarding
Virginia’s mental acuity, Donald was pursuing guardianship proceedings on behalf of
Virginia. The court ordered the trustee and trust drafting attorney to appear at the next hearing
and continued the case.
¶8 At the December 16, 2014, hearing, Bohlen said that the respondents had provided vague
and insufficient responses to his interrogatories. Attorney Roy Sabuco, who had entered his
appearance as cocounsel for the respondents, argued that a decline in Virginia’s cognitive
functioning had rendered her incapable of reasonably responding to the discovery requests.
Sabuco said that they had not yet initiated guardianship proceedings for Virginia because her
cognitive function only recently exhibited a rapid decline. Sabuco also noted that the
respondents had not received an accounting from the petitioners of the funds held in the
parties’ joint account. Toward the end of the hearing, Bohlen requested the entry of a
bifurcated judgment of dissolution of marriage. Sabuco responded:
“[W]e don’t have any objection philosophically with the entry of that judgment; but
I—I think that for the same reasons that we’re having difficulty with the discovery we
need the guardian to make that decision. I can represent to the Court that once a
guardian is appointed that—that the guardian will—will agree to the entry of the
judgment. But I—you know, I don’t think we’re—our client is competent to make that
decision on her own at this point.”
The court continued the case for entry of judgment order.
¶9 On January 5, 2015, the case was called for presentation of the judgment order. Donald
said that Bohlen had “an order that we are not quite ready to present.” Bohlen responded:
“[W]ell, that would be an editorial we. [Bohlen] is ready. This was the judgment order
that Sabuco had indicated that he was okay with, but wanted to make sure that the
guardianship for—I understand the guardianship has been filed.”
Bohlen asked the court to enter the judgment. Donald opposed the order, noting that Virginia
was “not competent” and a guardian had not been appointed by the probate court. The case was
continued for status on the appointment of a guardian for Virginia.
¶ 10 On January 9, 2015, Donald reported that guardianship proceedings had not been
completed in the probate court. The case was continued and eventually set for status on
February 3, 2015. However, the January 23, 2015, docket entry states “judgment for
dissolution of marriage presented, signed and ordered filed.” The entry does not mention
whether the order was entered in open court or if either party was present. The written

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 judgment of dissolution of marriage, which was filed on the same date, stated “[t]he parties
have agreed to bifurcate the issues of grounds for the dissolution of marriage, and all remaining
issues, including property, maintenance, and division and allocation of debt, have not yet been
resolved and are reserved.”
¶ 11 On February 20, 2015, the respondents filed a motion to vacate the judgment of dissolution
of marriage. The motion attested that the judgment was inadvertently entered and Teresa
Convery, as guardian of Virginia’s person, did not consent to the entry of the judgment as it
“would not have been her mother’s wish.” In response, the petitioner said that he had “no way
of knowing whether the guardian of the person did or did not consent to the judgment order,
however, her attorneys did consent to the judgment order prior to the time of its entry.”
¶ 12 On May 9, 2016, the court heard the respondents’ motion. Sabuco argued that, at the
conclusion of the January 9, 2015, hearing, the case was continued to February 3, 2015, for
status on the entry of the judgment. On January 21, 2015, the probate court granted the petition
for guardianship and appointed guardians of the person and estate of Virginia. The
guardianship order was entered on January 23, 2015. On the same date, Bohlen presented the
judgment of dissolution of marriage to the court while the respondents were not present.
Sabuco argued that the case was set for presentation of the judgment on February 3, 2015, and
the respondents received no notice of the January 23, 2015, entry of the bifurcated judgment of
dissolution of marriage. Sabuco contended that Convery told the respondents’ attorneys that
Virginia did not want the dissolution because of her strong Catholic background. As a result,
Sabuco and Donald intended to object to the entry of the judgment at the February 3, 2015,
hearing.
¶ 13 In its ruling, the court noted that the case was filed on June 3, 2014. Shortly thereafter, the
parties conducted a grounds for divorce hearing and neither party objected to the grounds
heard. The court found:
“[O]n December 16th, this Court—in conversation with Counsel, with everyone there,
said, Judge, we just need to enter a guardianship and then we’ll enter the judgment
order. That was represented by Counsel.
Then after that—and—and then, the Court was astounded because both counsels
stood there, after this case had been pending for six months and said, Judge, we don’t
think our client is competent, we think we need a guardianship, after the case had been
pending and these attorneys had been representing this person.
So then they filed the guardianship, and the Court gave them an opportunity to do
that and time to do that repeatedly. The Court kept resetting this for entry of a judgment
order because that’s what the attorneys had indicated to the Court was going to happen.
This is not a matter of somebody running in and sneaking in. This is a matter of the
Court saying, Okay, where’s the order of guardianship, where’s the judgment order,
because that’s where this Court was going.
Because, honestly, this is a dispute not between the parents and the—this is a—this
is—this is an effort on the part of the adult children to get an advantage with regards to
whatever estate—which the Court wasn’t allowed to find out what it amounted to
because they’re—the—of the intransigence of the children of Virginia.
So then the order gets signed. All this Court understood from the attorneys that it
was waiting for was an order of guardianship. And because the grounds had already

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 been heard, the case had already been filed without any objection, that’s all this Court
was waiting for.
Both parties were in fragile health. The—both parties were—were in nursing
homes. The Court understood that at the time. Both parties were not managing their
own finances. Their adult children were. So the fault in this case does not fly with either
Mr. Faletti or Mrs. Faletti. It lies within their adult children.
And to refuse to enter the order and to vacate the order would, in this Court’s
opinion, validate all of the efforts at obfuscation and delay on the part of Virginia’s
children because that’s what happened in this case.
It’s a straightforward, simple case. There was a grounds hearing, it was not
contested, and the parties agreed that they would enter an order, and then we
have—and in the meantime, we have delay. And the delay is caused entirely by
Virginia Faletti’s children.
Therefore, because there was nothing done untoward—the transcripts are clear. At
every stage, the Court is saying, Where’s the order, where’s the order, where’s the
order? The order was handed up. There was no objection to it. We were simply waiting
for the guardianship. That’s the Court’s understanding, that’s Mr. Bohlen’s
understanding, and that’s the impression that was given to this Court by the attorneys
for Virginia Faletti.
So for those reasons, the motion to vacate will be denied.”
¶ 14 The respondents appeal from the court’s denial of their motion to vacate the judgment of
dissolution.

¶ 15 ANALYSIS
¶ 16 The respondents argue that the denial of their motion to vacate the bifurcated judgment of
dissolution of marriage was the result of an abuse of discretion because neither Virginia nor her
guardians consented to the entry of the judgment.
¶ 17 Section 2-1203(a) of the Code of Civil Procedure permits a party to move to vacate a civil
judgment 30 days after its entry. 735 ILCS 5/2-1203(a) (West 2014). We review the court’s
denial of a motion to determine if the court abused its discretion and did substantial justice
between the parties. In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414 (1993).
¶ 18 Under the Illinois Marriage and Dissolution of Marriage Act, a court may enter a judgment
of dissolution of marriage where
“the spouses have lived separate and apart for a continuous period in excess of 2 years
and irreconcilable differences have caused the irretrievable breakdown of the marriage
and the court determines that efforts at reconciliation have failed or that future attempts
at reconciliation would be impracticable and not in the best interests of the family.” 750
ILCS 5/401(a)(2) (West 2014).
The spouses may waive the two years separation period if they have lived separate and apart
for a continuous period of at least six months and they file a written waiver with the court. Id.
The court shall not enter judgment unless it has jurisdiction and it considered, approved, or
reserved ruling on issues related to child custody and support, spousal support, and property
disposition. 750 ILCS 5/401(b) (West 2014). Where the court reserves any of these issues, it

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 may enter a bifurcated judgment “either upon (i) agreement of the parties, or (ii) motion of
either party and a finding by the court that appropriate circumstances exist.” Id.
¶ 19 The judgment and the court’s oral ruling on the respondents’ motion to vacate the
dissolution establish that the court thought that the parties had consented to the entry of a
bifurcated judgment of dissolution of marriage prior to the entry of the order on January 23,
2015. The court believed that, as there was no objection to the bifurcated judgment from the
attorneys, it was “simply waiting for the guardianship.” However, the record does not support
the court’s ruling as the respondents’ attorneys had not consented to the entry of the judgment
and had expressly reserved the decision on whether to consent to the order for the appointed
guardian.
¶ 20 Throughout the record, counsel for the respondents withheld consent to the entry of the
judgment. On October 8, 2014, Donald stated that she was not giving Bohlen permission to
enter the dissolution as she needed time to review it. On October 24, 2014, Bohlen recognized
that, at the prior hearing, “it was determined there was an objection to the entry of the judgment
of dissolution.” Then, on December 16, 2014, Sabuco said “we don’t have any objection
philosophically with the entry of that judgment; but *** we need the guardian to make that
decision.” (Emphases added.)
¶ 21 The distinction between “not objecting” and “consenting to” the entry of the judgment is
paramount to our review of the court’s ruling. The court could only enter a bifurcated judgment
if the parties consented to it or the court made a finding that appropriate circumstances existed.
Id. The second clause is not at issue as there is no indication that the court made a finding that
“appropriate circumstances” required entry of the bifurcated judgment. Id. Instead the court
found “the parties agreed that they would enter an order.” Thus, we must determine if the
record establishes that the respondents consented to the entry of the bifurcated judgment.
¶ 22 “Giving consent and offering no objection are different acts.” Mulcahey v. Vehon, 229 Ill.
App. 454, 471 (1923). A party who does not object to a proceeding assumes a passive position.
Id. He is neither agreeing to the proposal nor opposing it. Id. In contrast, by providing consent,
a party assumes an active position in furtherance of the proposal. Id.
¶ 23 From our review of the record, there is no indication that the respondents consented to the
entry of the bifurcated judgment. Specifically, Sabuco expressly reserved the respondents’
decision on whether to consent to the judgment for Virginia’s appointed guardian. Consistent
with Sabuco’s statement, at the January 5, 2015, hearing, Donald reiterated that the
respondents were not yet ready to consent to the entry of the judgment as the guardianship
proceedings had not been resolved. On January 9, 2015, Donald reported that the guardianship
proceedings were still in progress and the case was continued to February 3, 2015, for status on
the entry of the judgment. Bohlen circumvented the February 3, 2015, status date by filing the
bifurcated judgment, which the respondents had consistently withheld consent to, on
January 23, 2015. The guardians of Virginia’s estate and person were appointed on the same
date, and there is no indication in the record that either of Virginia’s guardians appeared in
court on January 23, 2015, to expressly consent to the entry of the judgment. Therefore, the
record establishes that the judgment was entered without the respondents’ consent, and the
court abused its discretion and duty to do substantial justice between the parties when it denied
the respondents’ motion to vacate the judgment.
¶ 24 In his appellee’s brief, the petitioner argues that Sabuco had consented to the entry of the
judgment on behalf of the guardian when he stated “I can represent to the Court that once a

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 guardian is appointed, that—that the guardian will—will agree to the entry of the judgment.”
This interpretation of Sabuco’s statement is entirely inconsistent with the purpose of
appointing a guardian and impermissibly infringes on the statutory obligations of the guardian.
¶ 25 During the pendency of this case, Sabuco and Donald initiated guardianship proceedings
after observing that Virginia’s mental acuity had rapidly declined. While these proceedings
slowed the progress of the underlying divorce case, Sabuco and Donald had a professional
obligation to initiate the guardianship proceedings after they observed Virginia’s cognitive
decline. Ill. R. Prof’l Conduct (2010) R. 1.14(b) (eff. Jan. 1, 2010). Once appointed, the
guardian of Virginia’s person was empowered to “make provisions] for [Virginia’s] support,
care, comfort, health, education and maintenance.” 755 ILCS 5/11a-17(a) (West 2014). Such
decisions were to be made consistent with Virginia’s “personal, philosophical, religious and
moral beliefs, and ethical values.” 755 ILCS 5/11a-17(e) (West 2014).
¶ 26 The motion to vacate and Sabuco’s argument at the hearing on the motion establish that
Convery, as guardian of Virginia’s person, sought to exercise her power to make provisions for
Virginia that were consistent with Virginia’s personal and religious beliefs. 755 ILCS
5/11a-17(a), (e) (West 2014). Specifically, Convery told the attorneys that Virginia would not
want a divorce because of her strong Catholic beliefs. Additionally, Convery felt that the
dissolution “would not have been her mother’s wish.” These representations establish that
Convery did not intend to consent to the entry of the bifurcated judgment of dissolution.
Instead, Convery reasonably intended to exercise her statutory duties, at the February 3, 2015,
hearing, to oppose the entry of the bifurcated judgment of dissolution of marriage. Id. To
interpret Sabuco’s prospective statement that the guardian “will agree to the entry of the
judgment” as binding on the later-appointed guardian would render the guardianship
proceedings a mere formality. Such a result is entirely inconsistent with the statutory role of a
guardian of the person. See 755 ILCS 5/11a-17 (West 2014). We conclude that Sabuco’s
representation that the guardian would consent to the entry of the judgment did not bind the
guardian and was not prospective consent.

¶ 27 CONCLUSION
¶ 28 The judgment of the circuit court of Kankakee County is reversed. The cause is remanded
with directions to vacate the bifurcated judgment of dissolution of marriage and conduct any
further proceedings. Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (“In all appeals the reviewing
court may, in its discretion, and on such terms as it deems just, *** enter any judgment and
make any order that ought to have been given or made, and make any other and further orders
and grant any relief *** that the case may require.”).

¶ 29 Reversed and remanded with directions.

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