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In Re Marriage of Drews

OPINION FILED DECEMBER 19, 1986.

IN RE MARRIAGE OF HERBERT J. DREWS, JR., AND SUE ANN CARROTHERS DREWS, APPELLEE (LORRAINE DREWS, GUARDIAN, APPELLANT).


Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Richard H. Jorzak, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 30, 1987.

Petitioner, Lorraine Drews, as plenary guardian of her son, Herbert J. Drews, Jr., filed a petition for dissolution of his marriage in the circuit court of Cook County. Respondent, Sue Ann Carrothers Drews, appeared and filed a motion to dismiss the petition with prejudice for failure to state a cause of action.

The trial court ordered the parties to submit memoranda of law in support of their respective positions. After reviewing the memoranda submitted, the court granted respondent's motion to dismiss the petition with prejudice. A divided appellate court affirmed, concluding that Illinois law does not give a guardian the authority to institute a proceeding for the dissolution of a ward's marriage. (139 Ill. App.3d 763, 776.) We granted petitioner's appeal pursuant to Supreme Court Rule 315 (103 Ill.2d R. 315).

We note that we are reviewing the dismissal of a petition. Therefore, the well-pleaded facts contained in the petition for dissolution will be taken as true. Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 421.

Petitioner's son and respondent were married in June 1979 and thereafter resided together as husband and wife. In October 1980, petitioner's son sustained a severe and disabling head injury as a consequence of an automobile accident. Respondent continued in her role as wife until May 1981, at which time she ceased residing in the marital home and abandoned her husband to his parents' care. As a result and because of her son's permanent and total disability, petitioner sought and was granted plenary guardianship over his estate and person. As plenary guardian, petitioner had custody of the ward. She also had authority to manage his estate as well as "to do all acts required by law." Under the authority of her appointment as plenary guardian, petitioner filed for dissolution of his marriage.

Petitioner alleged that respondent was "guilty of desertion and extreme and repeated mental cruelty" and further alleged that respondent was in possession of substantially all of the marital property. Petitioner, on behalf of her ward, sought judgment of dissolution, equitable distribution of the marital property, and an award of maintenance from respondent to the ward.

Respondent moved to dismiss the petition with prejudice, specifically claiming that petitioner was without standing to maintain an action for the dissolution of her ward's marriage. The motion was granted.

A single issue is presented for decision. Does a plenary guardian of a disabled adult have standing to maintain an action for the dissolution of a ward's marriage?

We begin by noting that the issue before us is not novel. It has been addressed over the years by the courts of a number of jurisdictions. Research reveals a strong majority rule that, absent statutory authorization, a guardian cannot maintain an action, on behalf of a ward, for the dissolution of a ward's marriage. Wood v. Beard (Fla. Dist. Ct. App. 1958), 107 So.2d 198, 200; Phillips v. Phillips (1947), 203 Ga. 106, 108-09, 112, 45 S.E.2d 621, 622, 624; State ex rel. Quear v. Madison Circuit Court (1951), 229 Ind. 503, 504-05, 99 N.E.2d 254, 255; Mohler v. Shank's Estate (1895), 93 Iowa 273, 277-79, 61 N.W. 981, 983; Birdzell v. Birdzell (1885), 33 Kan. 433, 435-36, 6 P. 561, 561-62; Johnson v. Johnson (1943), 294 Ky. 77, 78, 170 S.W.2d 889, 889-90; Stevens v. Stevens (1934), 266 Mich. 446, 254 N.W. 162; Higginbotham v. Higginbotham (Mo. Ct. App. 1940), 146 S.W.2d 856, 857; In re Jennings (1981), 187 N.J. Super. 55, 58-59, 453 A.2d 572, 574; Mohrmann v. Kob (1943), 291 N.Y. 181, 189-90, 51 N.E.2d 921, 924-25; Freeman v. Freeman (1977), 34 N.C. App. 301, 302-03, 237 S.E.2d 857, 858; Hart v. Hart (Tex. Ct. App. 1986), 705 S.W.2d 332; cf. Campbell v. Campbell (1941), 242 Ala. 141, 142, 5 So.2d 401, 401-02 (stating the general rule but finding statutory authorization); Cohn v. Carlisle (1941), 310 Mass. 126, 128, 37 N.E.2d 260, 262 (finding statutory authorization); Kuta v. Kuta (1951), 154 Neb. 263, 264-66, 47 N.W.2d 558, 559 (finding statutory authorization).

Illinois early adopted the majority position. (Pyott v. Pyott (1901), 191 Ill. 280, 288; Iago v. Iago (1897), 168 Ill. 339, 341.) However, petitioner contends that Pyott and Iago do not control the present case because the statement of the majority rule contained in those cases is merely dicta. We have reviewed both cases and conclude that this contention is without merit.

In both cases, this court recited, with approval, the majority rule that a guardian is without capacity to seek dissolution of a ward's marriage but observed that the rule was inapplicable on the facts before it. In Pyott, the rule was inapplicable because the guardian sought annulment, not dissolution, of the ward's marriage. The court cited the well-settled rule that a guardian can bring an action, on behalf of a ward, to declare a marriage void. (Compare with section 302(a)(1) of the Illinois Marriage and Dissolution of Marriage Act, which gives a guardian standing to seek a declaration of invalidity (formerly, annulment) of a ward's marriage (Ill. Rev. Stat. 1983, ch. 40, par. 302(a)(1)).) In Iago, the majority rule was inapplicable because the guardian was defending, not maintaining, an action for dissolution brought against the ward. The mere fact that the rule was not applicable on the facts of these cases does not invalidate its application in the proper case.

We conclude that Illinois follows the majority rule. Thus, absent statutory authorization, a guardian cannot institute an action, on behalf of a ward, for the dissolution of the ward's marriage.

Petitioner argues that her status as plenary guardian confers upon her the standing to bring the instant proceeding. She contends that section 11a-18(c) of the Probate Act of 1975 (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 11a-18(c)) accords her the ...


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