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Lerner v. Lerner

September 29, 2000

IN RE THE MARRIAGE OF
SUSANNAH LERNER,
PETITIONER-APPELLANT,
V.
ROBERT M. LERNER,
RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Justice Cerda

Appeal from the Circuit Court of Cook County Honorable James G. Donegan, Judge Presiding.

Petitioner, Susannah Lerner, has appealed for the second time a matter concerning the October 22, 1990, post-divorce judgment which ordered that respondent, Robert M. Lerner, pay support and medical expenses for their disabled adult child, Andrew Lerner.

FACTS

In the prior appeal of petitioner, this court reversed the circuit court order of August 27, 1992, which vacated the support order of October 22, 1990, and we reinstated the support order of October 22, 1990. In re Marriage of Lerner, No. 1-92-3310 (1994).

On September 2, 1998, the circuit court entered an order that respondent Robert Lerner had no obligation to pay support or medical expenses for his adult child because a probate court determination of disability was required prior to a domestic relations court having jurisdiction to award support for a disabled adult child.

The circuit court determined that the September 2, 1998, order involved the following question of law: "Whether an alleged mentally disabled person is a necessary party to a petition pursuant to Section 5/513 (a)(1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/513) to determine the nature and extent of his disability, when it occurred, whether it is temporary or permanent in nature." The September 2, 1998, order is the subject of this appeal. We reverse and remand for further proceedings.

The circuit court order of October 22, 1990, determined that Andrew, who was an adult at that time, was disabled pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/513 (West 1998)) (the Act) and was in need of support. Robert was ordered to pay support to Susannah for Andrew. Judgment was entered in favor of Susannah and against Robert for $28,387.72 for Andrew's medical expenses.

The circuit court thus found that, under Section 513, Andrew was disabled prior to his 18th birthday. If the court had found that Andrew had become disabled after he became an adult, the circuit court could not have ordered Robert to pay support for Andrew pursuant to section 513.

According to the prior Rule 23 order, petitioner filed, on November 21, 1989, a petition for support of Andrew, who allegedly was mentally disabled since before his 18th birthday. On September 18, 1990, an order of default was entered against respondent based on his failure to file an appearance, appear in court on that date, and to comply with discovery orders. A prove up was held on October 17, 1990, and on October 22, 1990, the trial court granted petitioner's request. Respondent was ordered to maintain medical insurance for Andrew so long as Andrew was disabled, to pay a portion of Andrew's medical bills to date, and to pay $1,500 per month to petitioner for Andrew's support.

Also according to the Rule 23 order, on May 15, 1991, respondent filed a petition to vacate the October 22, 1990, order. On August 27, 1992, the trial court vacated the October 22, 1990, order with respect to Andrew, noting that there was no prior determination of his disability and that petitioner lacked standing to bring such a petition for an adult. Petitioner appealed from the 1992 order.

The appellate court held that respondent's petition to vacate should have been denied because he had not established due diligence in bringing the petition. The trial court's order of October 27, 1992, was vacated.

On March 26, 1997, respondent filed a petition to declare the October 22, 1990, order void. He argued that no notice of the proceedings had been served on Andrew under the Probate Act.

On September 2, 1998, the trial court granted respondent's second motion to vacate. The order stated the following:

1) A probate court proceeding was necessary for Andrew to have a legal representative to determine the nature and extent of Andrew's disability, if it did exist. The probate court would have to determine the date when the disability originated and whether it was permanent or temporary. The domestic relations court would ...


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