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03/31/95 MATTER ESTATE JENNIFER C. DYNIEWICZ v.

March 31, 1995

IN THE MATTER: THE ESTATE OF JENNIFER C. DYNIEWICZ, MARK C. DYNIEWICZ, MELISSA S. DYNIEWICZ, MICHAEL D. DYNIEWICZ AND KELLY K. DYNIEWICZ, HAROLD F. FRIETAG AND VIRGINIA D. FREITAG, DEFENDANTS-APPELLANTS/CROSS-APPELLEES, AND HANOVER INSURANCE COMPANY, SURETY-APPELLANT/CROSS-APPELLEE,
v.
JENNIFER C. DYNIEWICZ, MARK C. DYNIEWICZ, MELISSA S. DYNIEWICZ, MICHAEL D. DYNIEWICZ AND KELLY K. DYNIEWICZ, PLAINTIFFS-APPELLEES/CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Richard R. Rochester and Henry A. Budzinski, Judges Presiding.

The Honorable Justice Hartman delivered the opinion of the court: DiVITO and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

Defendants Harold F. Freitag and Virginia D. Freitag, co-guardians of the persons and estates of their five grandchildren, Jennifer, Mark, Melissa, Michael and Kelly Dyniewicz (Dyniewicz children), appeal from the circuit court's order disallowing certain expenditures and charging them guardian ad litem fees following a final estate accounting. Hanover Insurance Company (Hanover), surety on the co-guardians' $25,000 bond, appeals from that part of the order directing it to pay the amount of its bond if the co-guardians failed to pay within 30 days. The Dyniewicz children cross-appeal from the circuit court's order refusing to assess the co-guardians for charges expended after they reached majority and for their attorneys' fees.

The questions raised in this appeal include whether the circuit court abused its discretion in (1) assessing guardian ad litem fees against the co-guardians; (2) denying the co-guardians' petition for fees; (3) denying the co-guardians attorneys' fees; (4) surcharging the co-guardians for using estate funds to purchase certain insurance policies; and (5) ordering the surety to forfeit its bond. On cross-appeal, the questions raised are whether the circuit court erred in failing to surcharge the co-guardians for expenditures made after the Dyniewicz children reached majority; and whether the circuit court erred in vacating that portion of its order granting the Dyniewicz children's petition for attorneys' fees.

On May 19, 1980, Harold F. Freitag, the maternal grandfather of the Dyniewicz children, was appointed guardian of their estates and persons following the death of their natural parents. Freitag filed an oath, a bond for $25,000 issued by the Hanover Insurance Company (Hanover) as surety, and retained attorney John R. Rafferty to represent the estates. On August 8, 1984, Virginia Freitag, the maternal grandmother of the Dyniewicz children, was appointed co-guardian. Four estate accounts were submitted to the circuit court from 1981 through 1985; however, the co-guardians failed to file current accounts after that date.

The Dyniewicz children reached their majorities on the following dates:

Jennifer - May 21, 1988

Mark - April 29, 1989

Melissa - August 8, 1990

Michael - September 5, 1991

Kelly - still a minor.

In the cases of three of the Dyniewicz children, expenditures were made by the co-guardians after majority was attained, as follows:

Jennifer - $31,562.33

Mark - $19,714.69

Melissa - $8,174.22

No allegations were made or evidence submitted to the effect that the post-minority expenditures were made for anyone's benefit but the wards.

On July 5, 1991, the circuit court granted Jennifer's petition requesting a final accounting and distribution of her estate and ordered the co-guardians to deposit the liquid assets of her estate into a bank account and file a final accounting within 30 days. On July 29, 1991, the court appointed Robert Sklodowski as guardian ad litem for the "Estate of Dyniewicz" and continued the final estate accounting to a future date. Attorney Robert P. Beilfuss also entered an appearance that day on behalf of Harold F. Freitag and Virginia D. Freitag, individually.

No accounting having yet been filed, on August 16, 1991, the circuit court again ordered the co-guardians to file their final accounting within 30 days. In the absence of that accounting, on October 1, 1991, the court ordered the co-guardians to surrender all financial records and issued a rule to show cause why they should not be held in contempt for their failure to file their final account. The co-guardians subsequently filed their final account for Jennifer's estate on October 18, 1991. Although the other Dyniewicz children also petitioned the court for a final account and distribution, these final accounts were not filed due to a dispute between attorneys Rafferty and Beilfuss over who should prepare them. The court ordered the co-guardians to prepare these accounts as well and they were filed in late April, 1992.

On April 2, 1992, Jennifer filed objections to the co-guardians' final account of her estate assets; the remaining Dyniewicz children filed ...


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