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In Re Estate of Whittington

OPINION FILED JUNE 5, 1985.

IN RE ESTATE OF CHERRY WHITTINGTON, AN INCOMPETENT, ET AL. (JEAN LYONS, GUARDIAN, APPELLEE,

v.

DANIEL BUTE, CONSERVATOR, ET AL., APPELLANTS).



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of La Salle County, the Hon. Leonard Hoffman, Judge, presiding.

JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 27, 1985.

On May 2, 1978, the petitioner, Cherry Whittington, killed her husband. After trial on charges of murder and manslaughter, she was found not guilty by reason of insanity. She was committed to the Zeller Mental Health Center in December 1978, where she remained until November 1979, when she was released to the care of a halfway house in Peoria. Daniel Bute was appointed conservator of the petitioner's estate in 1978 when she was judged incompetent. At the time of the killing, the petitioner's two-month-old son, Richard Whittington, was placed with his great aunt, Jean Lyons, the respondent in this case. Lyons was later appointed Richard's guardian, and the child has lived with her ever since.

In 1981, the petitioner married Howard Price. Soon after, she filed a petition in the circuit court of La Salle County to terminate the conservatorship of her estate and the guardianship of her son and to have the child returned to her custody. The circuit court denied the petition on February 5, 1982. A new judge was assigned to the conservatorship in March 1983, and the petitioner then filed a series of petitions for termination of both the conservatorship and the guardianship, none of which were ruled upon. On May 24, 1983, Daniel Bute filed a petition to terminate the conservatorship, but did not give notice to the respondent. After a hearing on Bute's petition on June 3, 1983, at which the petitioner, Howard Price, Bute, and a neighbor of the Prices testified and a letter from a psychiatrist who had examined the petitioner was submitted, the judge ordered the conservatorship terminated. Upon learning of the order, the respondent filed a motion to vacate and another to reconsider the order, both of which were denied.

On July 1, 1983, the petitioner filed a petition to terminate Richard's guardianship and return him to her custody. The respondent filed a motion to dismiss, and the petitioner moved for summary judgment. On August 22, 1983, the judge denied the respondent's motion for dismissal and granted the petitioner's motion for summary judgment, which resulted in an order terminating Richard's guardianship and restoring custody to the petitioner. However, execution of the custody order was stayed pending appeal of both of the orders — that terminating the conservatorship as well as that terminating the guardianship. The appellate court reversed both orders. (124 Ill. App.3d 198.) Leave to appeal to this court was granted under our Rule 315 (87 Ill.2d R. 315).

Two issues are presented in this appeal: first, whether the legal guardian of a minor child has the right to be given notice of and to be present at a hearing on a petition to terminate the conservatorship of the child's mother's estate; and second, whether it was proper to grant summary judgment on the petition to terminate Richard's guardianship and change his physical custody. Our answer to both inquiries is in the negative.

TERMINATION OF THE CONSERVATORSHIP OF PETITIONER'S ESTATE

The petitioner appeals from the decision of the appellate court reversing the circuit court's order terminating the conservatorship of her estate. The respondent successfully argued to the appellate court that she was entitled to notice of the hearing on the conservatorship. The petitioner argues that under the statute applicable at the time of the hearing, section 11a-20(c) of the Probate Act of 1975 as amended (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 11a-20(c)), the respondent was not entitled to notice. That statute provides:

"(c) Notice of the hearing on a petition under this Section, together with a copy of the petition, shall be given to the ward, unless he is the petitioner, and to the guardian, not less than 14 days before the hearing."

The guardian referred to in section 11a-20(c) was Daniel Bute, referred to above as the conservator. He gave notice of the hearing and a copy of the petition to Cherry Whittington, the ward, and the only person to whom the statute required notice be given under these circumstances. Thus the statutory requirements were met.

The respondent argued to the appellate court that, under the notice provision in effect in 1978 when the conservatorship was established, she was entitled to notice as an "interested person." At that time, the statute provided:

"(b) Notice of the hearing on any petition to be adjudged competent and for revocation of letters of office shall be given to the representative and to such other interested persons as the court directs * * *." (Ill. Rev. Stat. 1977, ch. 110 1/2, par. 11-14(b).)

The appellate court noted that this section was not in effect at the time the question of notice was pertinent; when the petition was filed and the hearing held, this section had been replaced by section 11a-20(c), quoted above, which required notice to no one but the petitioner in this case.

However, the appellate court decided that if the guardianship and conservatorship had been established under the present statute, the petitioner's conservator would also have had the care and custody of Richard, and would therefore have been entitled to notice. This is, however, an erroneous statement of the law. Section 11a-17 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 11a-17) describes the duties of the guardian of a person; section 11a-18 (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 11a-18) describes the duties of the guardian of an estate, sometimes referred to herein as a conservator. Nothing in this statute warrants the assumption that the guardian of an incompetent's estate must also be the guardian of the incompetent's person, much less the guardian of the incompetent's minor children. Moreover, in this case, ...


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