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Jan Karbin v. Marcia Lovenson Karbin

October 4, 2012


The opinion of the court was delivered by: Justice Freeman

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, Karmeier, Burke, and Theis concurred in the judgment and opinion.


¶ 1 In this case we consider whether we should overrule In re Marriage of Drews, 115 Ill. 2d 201 (1986), which held that a plenary guardian lacks standing to institute dissolution of marriage proceedings on behalf of the ward. For the reasons that follow, we believe a guardian has the authority to seek permission from the court to file a dissolution petition on behalf of the ward if such petition is found to be in the ward's best interests.


¶ 3 Jan and Marcia Karbin were married on June 2, 1984. At that time, Marcia had one daughter, Kara, whom Jan adopted. They later had one child together, Jacob, who is mentally disabled and resides in a full-time care facility.

¶ 4 After a serious car accident in 1997, Marcia suffered brain damage and became totally disabled, requiring full-time care. Jan was appointed plenary guardian of Marcia's person and estate. For the next seven years, Jan provided for Marcia's needs in their home. Jan also established an annuity for Marcia's lifetime care out of the proceeds of a large personal injury settlement award resulting from the car accident.

¶ 5 By 2004, however, Jan could no longer care for Marcia due to his own Parkinson's disease, and transferred his plenary guardianship of Marcia to Kara. At the time of this transfer, the probate court approved a six-page settlement agreement signed by the parties. This agreement provided, inter alia, for the distribution of funds upon the sale of the parties' home, as well as the division of their joint accounts and personal effects. After the guardianship transfer, Marcia left Illinois to live with Kara in Ohio.

¶ 6 On November 9, 2007, after living apart for nearly three years, Jan petitioned the circuit court of Cook County for dissolution of his marriage. The petition alleged noncohabitation and irreconcilable differences. On May 19, 2008, Marcia, through Kara, filed a verified counterpetition, alleging the same bases as Jan.

¶ 7 Discovery ensued. In 2009, Marcia filed a motion to compel discovery and petitioned the court for interim attorney fees and costs. Soon after, Jan moved for voluntary dismissal of his petition for dissolution. Jan alleged he had filed the petition at Kara's request, with the understanding that "each party would retain the assets and liabilities in their own name." Jan further claimed it was never his wish to divorce Marcia, but he had been willing to accommodate Kara's wishes as Marcia's guardian. Jan further claimed he had provided Marcia with a proposed marital settlement agreement, which Marcia ignored. Jan also filed a petition for temporary maintenance, interim attorney fees and costs.

¶ 8 In response, Marcia claimed that, based upon documents produced by Jan, it appeared he was concealing assets and income. Marcia further claimed that other documents showed that Jan had been romantically involved with another woman for some time, and that he and the woman were living together in a residence which Marcia believed Jan purchased with marital funds.

¶ 9 The litigation continued. Jan filed a motion to dismiss Marcia's motion to compel discovery. In his supporting affidavit, Jan stated that he believed that Marcia did not wish to pursue dissolution of her marriage.

¶ 10 Marcia moved to dismiss Jan's petition for temporary maintenance. She attached a copy of the warranty deed and mortgage for the property where Jan and the woman resided, which stated that they owned the property as a married couple. Marcia further alleged that Jan had numerous assets that he was attempting to conceal.

¶ 11 On July 29, 2009, the circuit court granted Jan's motion for voluntary dismissal of his dissolution petition. The court ordered that, in light of its dismissal, the parties were to be realigned, with Marcia as the petitioner and Jan as the respondent. The court also granted Marcia's motion to compel discovery.

¶ 12 On September 15, 2009, Marcia filed an emergency petition for a rule to show cause why Jan should not be held in contempt for his failure to comply with the July 29 court order. The next day, Jan filed his own emergency motion supported by an affidavit which stated that Marcia had told him that she did not wish to divorce him. Jan asked for appointment of a guardian ad litem to determine whether Marcia wished to continue with the dissolution proceedings.

¶ 13 Jan also filed a response to Marcia's motion to dismiss his petition for temporary maintenance and interim attorney fees. Jan admitted he had resided with another woman, but denied they were romantically involved. Jan claimed the woman was his live-in caregiver. He also denied that he knew the warranty deed and the mortgage to the property where they resided listed the woman as his wife. Although he admitted the couple had a joint checking account, he explained that he was often unable to write and that the joint account was simply a convenience.

¶ 14 On October 7, 2009, the circuit court ruled that Jan's motion to appoint a guardian ad litem should be heard in the court's probate division. Jan thereafter moved to dismiss Marcia's counterpetition, maintaining that pursuant to this court's decision in In re Marriage of Drews, 115 Ill. 2d 201 (1986), Kara, as Marcia's plenary guardian, had no authority to pursue a dissolution proceeding on Marcia's behalf. Marcia responded by alleging that Jan's motives for requesting dismissal of her counterpetition were "purely financial in nature, as Jan would stand to inherit from Marcia's estate in the event of her death."

¶ 15 On January 5, 2010, the probate court held that Kara had no standing to file a petition for dissolution of marriage on Marcia's behalf. Thereafter, on April 30, 2010, the judge in the domestic relations case ruled that under Drews, "a guardian does not have the authority to litigate a dissolution of marriage action as a petitioner" and granted Jan's motion to dismiss Marcia's counterpetition.

ΒΆ 16 Marcia appealed. A majority of the appellate court panel affirmed, holding that Drews controlled. 2011 IL App (1st) 101545. In dissent, Justice Cahill believed Drews to be factually ...

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