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In Re Estate of Comiskey

OPINION FILED AUGUST 5, 1986.

IN RE ESTATE OF VERNON O. COMISKEY (M. MARIE COMISKEY, CLAIMANT-APPELLANT,

v.

ESTATE OF VERNON O. COMISKEY, DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski, Judge, presiding.

PRESIDING JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 2, 1986.

Appellant, M. Marie Comiskey, and decedent, Vernon O. Comiskey, were divorced in 1970. The decree provided for alimony for Marie and child support for their minor daughter, Deborah. Various post-decree actions for alleged arrearage in alimony and child support were litigated in the trial and appellate courts. Although the mandate from the appellate court issued on April 17, 1977, Marie did not continue to prosecute her claim against Vernon for approximately five years, when she filed a claim against his estate. It is that claim which is at issue in this appeal.

In the underlying litigation, Comiskey v. Comiskey (1977), 48 Ill. App.3d 17, 366 N.E.2d 87, appeal denied (1977), 66 Ill.2d 629, the trial court held a hearing on Marie's petition for the entry of a rule to show cause why Vernon should not be held in contempt of court for nonpayment of child support and alimony. On July 31, 1975, as a result of those proceedings, the trial court entered a modification of the decree for divorce which found that Vernon was in arrears in the sum of $10,179.86 and ordered payments of $500 per month on this arrearage in addition to his regular $300-per-month alimony payments. The court did not find Vernon guilty of contempt. Custody of Deborah was awarded to Vernon. Marie appealed. The appellate court reversed by returning Deborah to the custody of Marie and holding that Vernon's "failure to comply with the judgment order constituted a contempt of court." (48 Ill. App.3d 17, 25, 366 N.E.2d 87.) The court did not disturb the amount of the arrearage but remanded the cause to the trial court to determine what portion constituted child support and what portion constituted alimony. The court also held that it does not follow that punishment must be imposed upon Vernon for this contempt because the best interests of all would be served by determining the exact arrearage of alimony and child support and working out a reasonable program for liquidation of the amounts due. "If this payment is thus accomplished, it would follow that defendant has purged himself from guilt of contemptuous conduct." 48 Ill. App.3d 17, 25, 366 N.E.2d 87.

Vernon O. Comiskey died on December 22, 1981. On January 25, 1982, decedent's will was admitted to probate and letters testamentary issued to Joan C. Comiskey, decedent's present wife. A guardian ad litem was appointed for Deborah, the minor daughter of the decedent from his marriage with Marie.

On July 22, 1982, Marie filed a claim against the estate, which sought to recover $18,609.18, based upon the unpaid arrearage of alimony and child support, plus interest at the rate of 9% per annum. Defendant filed an answer and affirmative defense, essentially denying the claims and asserting the defense of laches.

Neither party pursued this claim in the probate division until April 17, 1985, when defendant moved to dismiss the claim for want of prosecution. Plaintiff moved to transfer the claim to the domestic relations division for hearing. The motion was denied and the claim proceeded to hearing before the probate division. After hearing, the claim was dismissed with prejudice on the basis of laches. Reconsideration was denied on June 5, 1985, and this timely appeal followed.

The issue to be determined on this appeal is whether the claim of M. Marie Comiskey was properly dismissed on the theory of laches, in spite of the fact that the claim was timely filed in the probate division and well within the applicable 20-year statute of limitations.

I

• 1 The claim filed by Marie against the estate asserts rights on her own and on behalf of Deborah, the minor child of the decedent and Marie. To the extent that the defense of laches is asserted against the minor, it must fail. It was the duty of the trial court to protect the interests of the minor against the defense of laches. "We should be loth to admit that the power of the court is inadequate to protect the rights of the infant * * *. The court must do for the infant, all that an adult can do for himself, without imputing to him neglect for not having acted when he was incapable of acting." (Smith v. Sackett (1849), 10 Ill. 534, 548.) Wilson v. Augur (1898), 176 Ill. 561, 571, held: "Laches could not be imputed to complainant during his minority." Therefore, the defense of laches was erroneously applied to the portion of Marie's claim asserted on behalf of the minor.

II

Defendant does not dispute the fact that Marie's claim was filed within the applicable 20-year statute of limitations. (Carpenter v. Metropolitan Trust Co. (1945), 327 Ill. App. 220, 63 N.E.2d 658), and within six months after letters testamentary issued (Ill. Rev. Stat. 1983, ch. 110, par. 13-209). The relevant period for determining the application of laches is from April 17, 1977, when the mandate issued from the appellate court in Comiskey v. Comiskey (1977), 48 Ill. App.3d 17, 366 N.E.2d 87, appeal denied (1977), 66 Ill.2d 629, until July 22, 1982, when the claim was filed in the decedent's estate.

• 2 The defendant contends that a second period be considered for the application of laches. That period would commence on July 22, 1982, when the claim was filed, until April 17, 1985, when the defendant moved to dismiss the claim in the probate division. We disagree. Having filed an answer and affirmative defense to the claim, the estate had an equal responsibility to set the claim for hearing. (See, e.g., Martin Brothers Implement Co. v. Diepholz (1982), 109 Ill. App.3d 283, 288, 440 N.E.2d 320, appeal denied (1982), 92 Ill.2d 568.) Moreover, laches is not applicable to this period because the estate did not show any ...


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