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November 8, 1996



Released for Publication December 22, 1996.

The Honorable Justice Gordon delivered the opinion of the court. McNULTY, P.j. and Hourihane, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Vera Howse filed a petition seeking appointment of herself as the successor guardian of the person of the minor, Kirsten Johnson, her niece, after Kirsten's mother and guardian, Barbara Johnson, died. Kirsten, who was 16 years old, signed the petition and nominated Vera Howse as the guardian of her person. Attached to Howse's petition was a copy of Barbara Johnson's will in which she nominated her sister, Vera Howse, as guardian of Kirsten's person and estate. Eric Johnson, Kirsten's father, moved to dismiss Howse's petition and alternatively sought appointment of himself as Kirsten's successor guardian. After the hearing, the trial court denied Eric Johnson's motion and request to be appointed Kirsten's guardian and granted Howse's petition. The court determined that it was in Kirsten's best interest that Howse be appointed the guardian of her person. Eric Johnson appeals.

The issues raised in this appeal are whether the probate court had jurisdiction to appoint a nonparent as guardian of a minor when a parent is living and able to care for the minor and whether the trial court afforded the surviving, noncustodial parent a fair hearing.

The evidence presented at the hearing on the petitions seeking appointment of guardianship showed that the marriage of Barbara and Eric Johnson was dissolved pursuant to judgment entered on September 26, 1983. That judgment awarded sole custody of Kirsten Johnson to Barbara and provided visitation rights to Eric. Eric was required to pay $500 per month in child support and was responsible for Kirsten's extraordinary medical expenses.

On May 28, 1986, Kirsten sustained multiple trauma with severe head injuries. *fn1 A personal injury lawsuit was filed on her behalf and that lawsuit was settled in 1990. In accordance with the settlement agreement, Kirsten received a cash payment of $750,000 plus a structured settlement annuity that guaranteed total payments of $4,485,405.88 with expected total payments reaching as high as $14,418,036.24. First Colonial Trust Company was named by the probate court to act as the guardian of Kirsten's estate. Barbara Johnson, the custodial parent, remained as the guardian of Kirsten's person until her death on April 30, 1995.

Vera Howse, Barbara Johnson's sister, testified that in 1993, for a period of about three weeks while Barbara was in the hospital undergoing a bone marrow transplant, she was appointed by the court to care for Kirsten. After Barbara was released from the hospital, Howse continued to assist Barbara and cared for Kirsten by bringing food and making sure that Kirsten attended school and doctor appointments. In June 1994, when Barbara could no longer care for herself or Kirsten, Barbara and Kirsten moved into Howse's home in Matteson, Illinois. Howse made arrangements for Kirsten to have necessary dental work performed and for her to attend counselling at school. She also talked to Kirsten's teachers on several occasions. Howse regularly took Kirsten to her church in Chicago even though Howse attended another church.

Howse stated that, after Barbara's divorce and until June 1994, Eric Johnson was not involved in the day-to-day responsibilities toward Kirsten. She stated that she also never saw him during the three-week period in 1993 when Barbara was hospitalized. Howse had no knowledge whether Eric called the house to see how Kirsten was doing or whether Kirsten had any contact with Eric during that three-week period. She stated that the first time Eric came to see Kirsten after her move to Matteson was in October 1994. According to Howse, Eric visited Kirsten once in February 1995 and a couple of times in March. Howse did not think that Eric took Kirsten over to his house on any of those occasions and stated that Kirsten never stayed overnight at Eric's house.

Howse further testified that while Barbara was alive and living with her, she would receive about $500 per month from Barbara. She stated that she did not know whether Barbara was receiving any child support payments from Eric.

Howse stated that she wanted to be Kirsten's guardian because Kirsten was "like [her] daughter" and because she helped Barbara raise Kirsten since Kirsten was born. She stated that she raised Kirsten in "a Christian atmosphere" and with love.

On cross-examination by Kirsten's guardian ad litem, Howse stated that Eric visited Kirsten a few times in April 1995 before Barbara died. At that time, Eric did not offer to provide any money or to take custody of Kirsten. She stated that in May 1995 Kirsten stayed overnight at Eric's house. Kirsten also stayed overnight a couple of times in June. On none of those occasions did Eric offer to provide any money to Howse. Howse stated that Eric visited Kirsten in July 1995 and once in August. He took Kirsten for about a week and a half in September without Howse's consent. Howse further stated that from the time of Barbara's death until the hearing, Eric had never provided her with any financial support for Kirsten and had never discussed Kirsten's daily needs, education, or religious instruction with her.

On cross-examination by Eric's counsel, Howse testified that she never approached Eric to discuss Kirsten's daily needs, educational needs, religious education or support. Howse admitted that she did not have personal knowledge regarding any child support payments made by Eric to Barbara. She stated that the sole basis for her testimony regarding Eric's support payments was a conversation she had with ...

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