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In re Marriage of Epsteen

May 28, 2003

IN RE THE MARRIAGE OF: MARILYN D. EPSTEEN, PLAINTIFF, AND MARY B. EPSTEEN, AS EXECUTRIX OF THE ESTATE OF PETER EPSTEEN, DEFENDANT.
MARILYN D. EPSTEEN, N/K/A MARILYN D. ZALUD, GUARDIAN OF THE ESTATE OF JILL ANN EPSTEEN, A DISABLED PERSON, PLAINTIFF-APPELLANT/ CROSS-APPELLEE,
v.
MARY B. EPSTEEN, AS EXECUTRIX OF THE ESTATE OF PETER EPSTEEN, NATIONAL LIFE INSURANCE COMPANY A/K/A NATIONAL LIFE OF VERMONT, LORI ANN EPSTEEN, CYNTHIA MARIE EPSTEEN, DEBRA NAN EPSTEEN, AND JAMES ALVIN EPSTEEN, DEFENDANTS-APPELLEES/ CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Edmund Ponce de Leon, Judge Presiding.

The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

The plaintiff, as guardian of her disabled adult daughter, is seeking financial support from her ex-husband's estate. Two judges in the trial court dismissed four counts of her complaint. Three were dismissed because they were not timely filed pursuant to the non-claim statute of the Probate Act, and one was dismissed because another case was pending in California for the same cause. The plaintiff appeals the trial court's dismissal of her claims. We affirm the dismissals.

FACTS

Marilyn D. Epsteen, now known as Marilyn D. Zalud (Marilyn), was divorced from Peter Epsteen (Peter) on August 14, 1973, in Cook County, Illinois. Jill Ann Epsteen (Jill) was born to Marilyn and Peter on July 16, 1961. Jill is mentally disabled with an I.Q. of 58. She was adjudicated a disabled person and made a ward of the court by the Circuit Court of Cook County on July 8, 1991. Marilyn was appointed the Plenary Guardian of Jill's estate and person.

According to a Supplemental Judgment for Divorce entered December 21, 1973, Peter was required to pay $300 per month in child support for Jill. The judgment also required that Peter:

"i) *** pay and defray in their entirety the costs and expenses of providing for JILL ANN EPSTEEN, minor child of the parties hereto, subject to further order of this court or agreement of the parties hereon, such special therapy and education as may from time to time be requisite for the cure, treatment, alleviation or palliation of the condition of mild mental retardation and perceptual learning difficulties which the said JILL ANN EPSTEIN experiences regardless of the attainment by her of the age of majority. It is further ordered that the parties hereto join in the making of an application to competent authority of the State of Illinois, or any political subdivision thereof, for a grant or grants of funds in aid of the treatment or special education of the said JILL ANN EPSTEEN, and that to the extent that any such funds may be derived, the same shall be delivered to, and shall be and remain the property of [Peter]."

Peter was required to pay the premiums on two life insurance policies. One policy was for $100,000, and the other was for $35,000. Marilyn was the primary beneficiary of both policies. The judgment forbade Marilyn or Peter from doing anything which would effectuate any diminution in the face value of the life insurance policies.

According to both parties, after the divorce Peter moved to California and resided there until his death.

On July 15, 1992, Marilyn filed a petition asking for "the award of a sum of money from the property of Peter Epsteen for the support of Jill Ann Epsteen." In an agreed order dated July 30, 1993, the court, among other things, ordered Peter to pay $725 per month to Marilyn for Jill's support. Marilyn's July 15 petition was continued and set for status. In the same paragraph, the order stated: "[t]he parties stipulate and agree that the estate plan shall take effect upon Peter's death and not during his lifetime."

Peter died on December 8, 1997, in Palm Springs, California, leaving an estate with an estimated value of $650,000. Mary B. Epsteen (Mary), Peter's wife, was appointed executrix of his estate. His will provided: "From a prior marriage, I have four (4) children now living, namely DEBRA PETTIT, JAMES EPSTEEN, JILL ANN EPSTEEN, and CINDY EPSTEEN and one (1) deceased child, namely LORI ANN EPSTEEN. *** I have intentionally and with full knowledge omitted to provide for my children from my prior marriage and all other persons not mentioned in this instrument."

California Proceedings

On March 10, 1998, Mary filed a Petition for Probate of Will and for Letters Testamentary with the Superior Court of California, County of Riverside. Peter's will was admitted to probate on April 13, 1998. On August 7, 1998, Marilyn, as guardian of Jill's person and estate, filed a creditor's claim for $11 million against Peter's estate. In an attachment, she contended the cost of maintaining Jill was approximately $80,000 per year, and Jill's life expectancy was 78 years, of which 41 years were remaining. Jill lived in a community living facility in Illinois and was a public charge. On October 5, 1998, Mary filed a rejection of the creditor's claim.

On October 19, 1998, in Riverside County, California, Marilyn filed a Petition for Family Allowance, seeking enforcement of the $725 monthly support payments which had ceased after Peter's death in December 1997. Mary filed an Objection to the Petition for Family Allowance, contending Jill had received $550 per month in social security benefits, which should be applied to offset any obligation the estate might have. The Objection also stated Marilyn had received life insurance proceeds in excess of $100,000, from a life insurance policy maintained by Peter for Jill's benefit, the proceeds to be used for Jill's support and maintenance.

On December 24, 1998, in Riverside County, California, Marilyn filed a Complaint for Support of Disabled Person and for Quasi-Specific Performance and Imposition of Constructive Trust, requesting an award equal to the cost of supporting and maintaining Jill for the remainder of her life, estimated at $80,000 per year and in excess of $10 million over Jill's lifetime. The complaint set out three causes of action: (1) that the defendants--Mary, as executrix of Peter's estate and trustee of the Epsteen Family Trust, and David Roth, as co-trustee--were liable for the support of Jill as a disabled adult child; (2) that Peter's estate was in violation of the divorce judgment and the agreed order, by failing to pay child support, failing to pay the premiums of the two life insurance policies, and failing to provide for Jill's support in the estate plan; and, (3) that a constructive trust be imposed upon the property of the probate estate and the Epsteen Family Trust in order to provide for Jill's support. The complaint also sought an award of miscellaneous costs incurred in caring for Jill prior to Peter's death, in the amount of $13,243.24. The awards were to come from Peter's estate, and then from the Epsteen Family Trust. Mary filed a motion for summary judgment, contending the State of Illinois had exclusive jurisdiction over the court orders arising from the dissolution of marriage. She contended the California court had no power to change or modify the Illinois order; at best, the court could enforce the existing order of $725 per month in incidental support. According to Mary, this amount had been paid monthly since Peter's death.

On May 17, 2000, the Superior Court of California, County of Riverside, entered an order staying the action to determine whether a suit had been filed by Marilyn in Illinois for Jill's financial support. Marilyn filed the instant complaint in Illinois on April 10, 2000. While the case was pending in Illinois, the California court lifted the stay and granted Mary's motion for summary judgment. Marilyn appealed. The Court of Appeal of the State of California, Fourth Appellate District, issued an unpublished opinion on December 23, 2002. The court reversed summary judgment on Counts I and II of the complaint but affirmed summary judgment on Count III, the claim for quasi-specific performance. Marilyn was granted costs for the appeal.

Illinois Proceedings

On April 10, 2000, Marilyn filed her Complaint to Enforce Supplemental Judgment of Divorce of December 21, 1973, in the Circuit Court of Cook County, Domestic Relations Division. The relevant counts for purposes of this appeal are Counts III through VI. Count III sought restitution against the estate for Peter's failure to pay premiums on the two life insurance policies, causing one policy to be terminated and the other diminished in value. Count IV sought modification of the $725 monthly support payments for Jill, pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act, based on the discovery of decedent's large estate. Count V sought financial support for Jill in the amount of expenses paid by the State of Illinois, pursuant to section 513 of the Act. Count VI sought enforcement of an estate plan which was to have included provisions for Jill's support.

Mary brought a 2-619 motion to dismiss Counts IV, V, and VI, contending: (1) the complaint was time-barred, pursuant to section 510 of the Illinois Marriage and Dissolution of Marriage Act and section 18-12 of the Probate Act, requiring a claim to be brought within two years of the decedent's death (750 ILCS 5/510 (West 2000); 755 ILCS 5/18-12 (West 2000)), and (2) the complaint was an improper splitting of an action between California and Illinois, based on section 2-619(a)(3) of the Illinois Code of Civil Procedure (735 ILCS 5/2-619(a)(3) (West 2000)) (another action pending between the same parties for the same cause). In a January 5, 2001, order, Judge Edmund Ponce de Leon granted the motions to dismiss and for judgment on the pleadings as to Counts IV, V, and VI. The court held Counts IV and V were not commenced within the time limited by law (735 ILCS 5/2-619(a)(5) (West 2000)), and Count VI was a split action, based on section 2-619(a)(3) (735 ILCS 5/ 2-619(a)(3) (West 2000)). Marilyn filed an amended motion to reconsider on February 5, 2001. The motion was denied. On April 2, 2002, Judge Nancy Katz granted Mary's motion to dismiss Count III of the complaint, finding it was time-barred under section 510 of the Illinois Marriage and Dissolution of Marriage Act. ...


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