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In Re Marriage of Drews

OPINION FILED DECEMBER 19, 1985.

IN RE MARRIAGE OF HERBERT J. DREWS, JR., BY HIS GUARDIAN, LORRAINE DREWS, PETITIONER-APPELLANT, AND SUE ANN CARROTHERS DREWS, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Cook County; the Hon. Richard H. Jorzak, Judge, presiding.

JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:

Lorraine Drews (Lorraine), as legal guardian of her son Herbert Drews, Jr. (Herbert), filed a petition which requested dissolution of Herbert's marriage to Sue Ann Carrothers Drews (Sue Ann), distribution of their marital estate, maintenance for Herbert, and attorney fees and costs. Sue Ann filed a motion to dismiss the petition, arguing that Lorraine, as guardian of Herbert, lacked the authority to file a petition for dissolution of the marriage. The trial court granted the motion to dismiss, and Lorraine appeals.

Briefly stated, Lorraine argues that the Illinois Probate Act of 1975 (the Probate Act) (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 1-1 et seq.) provides for a guardian's authority to institute dissolution proceedings on behalf of the ward; that Illinois case law does not expressly prohibit a guardian from instituting marriage dissolution proceedings; and that the doctrine of substituted judgment authorizes a guardian's maintenance of a divorce claim. Sue Ann contends that both the Probate Act of 1975 and the Illinois Marriage and Dissolution of Marriage Act (the IMDMA) (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) prohibit a guardian from instituting marriage dissolution proceedings; that Illinois common law and the majority of other jurisdictions prohibit the institution of such proceedings; and that the doctrine of substituted judgment is inapplicable in the context of a guardian's authority to institute a dissolution action on behalf of a ward.

Based upon the broad purposes of the Probate Act of 1975 and the IMDMA, the dicta of Illinois Supreme Court and appellate court decisions, the majority view of other jurisdictions, and the limited applicability of the substituted judgment doctrine, we conclude that under Illinois law a guardian is generally without the power to institute such proceedings. As a result we find no error in the trial court's dismissal of Lorraine's petition on the ground that she lacked the authority to institute marriage dissolution proceedings on Herbert's behalf.

FACTS

Sue Ann's motion to dismiss argued that Lorraine's petition failed to state a claim for which relief may be granted. (Ill. Rev. Stat. 1983, ch. 110, par. 2-615.) Therefore all well-pleaded facts in the pleading are assumed to be true for the purposes of review. See Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 426, 430 N.E.2d 976.

In her verified petition for dissolution of marriage, Lorraine alleged that Herbert and Sue Ann were married on June 27, 1979; no children were born to the parties as a result of the marriage; and the couple had lived together from the date of the marriage until approximately May 1, 1981, on which date Herbert entered "residential placement for treatment."

At the time the petition was filed, Herbert was 31 years old and Sue Ann 28. Herbert was alleged to be "a permanently and totally disabled person, having sustained a grievous brain injury, * * * unemployed and * * * a resident" of a nursing home in Illinois. Sue Ann was alleged to be "employed and self-supporting."

Lorraine claimed in the petition that since the date of Herbert's entry into residential placement on May 1, 1981, Sue Ann "has failed and refused to perform the duties of a wife under the circumstances and has abandoned [Herbert] to the care of his parents." Lorraine alleged that without any fault or provocation by Herbert, Sue Ann "has been guilty of desertion and extreme and repeated mental cruelty toward [him]."

Lorraine alleged that during the marriage, Herbert and Sue Ann were able to acquire certain assets which constituted marital property and that all of such property was in Sue Ann's possession. She also claimed that there were substantial marital debts arising out of Herbert's "accident" (the date of which was not stated anywhere in the petition), and his "consequent injuries," and that there were "enormous medical, hospital and nursing home bills." Lorraine stated that Herbert could not support himself, nor did he have the funds with which to maintain the dissolution proceeding or to pay his costs and attorney fees. She alleged, however, that Sue Ann was able bodied and well able to support herself and that she was well able to pay Herbert's attorney fees and court costs for the litigation of the cause.

Based upon these allegations, Lorraine requested that the marriage of Herbert and Sue Ann be dissolved, that their marital estate be equitably distributed, that Herbert be awarded maintenance from Sue Ann, and that Herbert be awarded from Sue Ann his attorney fees and costs of suit.

In response to Lorraine's petition, Sue Ann filed a motion to dismiss for failure to state a claim (see Ill. Rev. Stat. 1983, ch. 110, par. 2-615) in which she argued that Lorraine's guardianship power did not encompass the institution of dissolution proceedings, but instead, as requested in Lorraine's petition for guardianship, was limited to the institution of a personal injury action on Herbert's behalf based upon the accident which precipitated his disability, to the defense of a foreclosure action which had been instituted against him, and to the provision of his care and maintenance in view of his disability. Sue Ann argued that Lorraine's guardianship power did not encompass the institution of marriage dissolution proceedings, and further that the right to file for dissolution of marriage is a personal one which can be exercised only by a spouse to the marriage.

Lorraine's response to the motion to dismiss claimed that her plenary guardianship over Herbert included the right to institute a divorce action on Herbert's behalf. She attached to her response a copy of letters of office granted her on November 12, 1982, which recited in pertinent part that she was "authorized to have the care, management and investment of the ward's estate and the custody of the ward and to do all things required by law."

Following a hearing, the trial court dismissed the petition with prejudice. Lorraine's timely appeal followed. *fn1

OPINION

I

Our analysis begins with a consideration of whether the Probate Act of 1975 or the IMDMA specifically provide for or prohibit a guardian's institution of marriage dissolution proceedings. For the reasons stated below, we conclude that ...


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