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Jan Karbin v. Marcia Lovenson Karbin

June 30, 2011

JAN KARBIN,
PETITIONER AND CROSS-RESPONDENT-APPELLEE,
v.
MARCIA LOVENSON KARBIN, BY AND THROUGH HER GUARDIAN, KARA HIBLER.
RESPONDENT AND CROSS-PETITIONER-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 07 D 11313 The Honorable William S. Boyd

The opinion of the court was delivered by: Presiding Justice Garcia

Judge Presiding. PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion.

Justice Cahill dissented, with opinion.

OPINION

Jan Karbin, the husband, filed a petition for dissolution of marriage from his disabled wife, Marcia Lovenson Karbin. The wife's plenary guardian, Kara Hibler, filed a counterpetition for dissolution. Thereafter, the husband dismissed his petition and filed a motion to dismiss the wife's counterpetition based on two Illinois Supreme Court decisions that bar a disabled person from initiating a dissolution of marriage. The circuit court agreed that the decisions applied here and dismissed the wife's counterpetition. The guardian claims that a disabled person should be allowed to pursue a dissolution of marriage where procedural and substantiative safeguards can be met at a best interest hearing. The guardian argues the supreme court cases that stand as a bar to a guardian proceeding on behalf of a disabled spouse as a petitioner in a dissolution petition are outdated and should be deemed inapplicable when it can be shown that a dissolution of marriage is consonant with the best interest of the disabled person. There is force to this argument. However, we cannot distinguish the clear precedents of our supreme court on the proffered basis that a best interest hearing provides adequate safeguards to permit a guardian to pursue a petition for dissolution of marriage on behalf of a disabled person. Given the clear holdings of the supreme court, only the legislature can provide the statutory authority the guardian seeks. We affirm.

BACKGROUND

The parties were married on June 2, 1984. They have two children; one born to them, a son, Jacob, who suffers from mental disability and lives in a full-time care facility, and a daughter, Kara, Marcia's daughter from a previous marriage, whom Jan adopted during the parties' marriage.

After almost 14 years of marriage, Marcia suffered brain damage and became severely disabled after a car accident. Her disability requires full-time care. Jan was appointed plenary guardian in 1997. While he was guardian, Jan established an annuity for Marcia out of the proceeds of the large settlement award stemming from the car accident. The annuity provides for Marcia's lifetime care.

Jan suffers from Parkinson's disease and, in 2004, agreed to transfer his plenary guardianship of Marcia to their daughter, Kara, because he could no longer care for Marcia. At the time of the guardianship transfer, the agreed order contained an agreement between the parties regarding the distribution of funds upon the sale of the marital home. With the approval of the guardianship transfer, the probate court approved a six-page settlement agreement signed by the parties. After the transfer, Marcia left Illinois with her daughter and now guardian, Kara.

At the time of the proceedings below, Marcia lived in a condominium in Ohio. When Jan filed his dissolution petition, he was living with another woman in a townhouse in Illinois. They jointly own the townhouse. The guardian claims that Jan is romantically involved with the woman he resides with. Jan refutes any romantic involvement; he characterizes the co-owner of the townhouse as his live-in caretaker.

In November 2007, Jan filed a petition for dissolution of marriage. Jan claims he did so at the request of Marcia's guardian with an understanding that the dissolution action would be "uncontested and routine." He claims they agreed that each party would retain the assets they possessed at that time of filing and each would be responsible for their respective debts.

In May 2008, Marcia, through her plenary guardian, filed a counterpetition for dissolution. Jan answered and discovery ensued.

The parties exchanged disclosure of assets and liabilities under Cook County Circuit Court Rule 13.3.1 (eff. Jan. 1, 2003). Jan claims his 2007 and 2008 income statements showed his monthly income had decreased because Parkinson's disease prevents him from working. He claims he provided the guardian with proof that he receives federal disability benefits, which supplement his retirement funds.

On May 5, 2009, Marcia's guardian filed a motion to compel discovery, alleging Jan's disclosure statement was incomplete. The guardian claimed Jan failed to provide statements from a joint savings account, supporting tax forms for his 2007 and 2008 tax filings, annual statements from the settlement annuity, and documents regarding a $20,000 investment Jan made in Digital Campaign, Inc. The guardian alleged Jan acted "willfully and ...

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