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In re Estate of Mosquera

Court of Appeals of Illinois, First District, Fifth Division

May 10, 2013

Katie Mosquera, Respondent-Appellee. Alejandro R. Mosquera and Fernando R. Mosquera, Claimants-Appellants,

Held [*]

In proceedings arising from claims made against decedent’s estate by two adult children of decedent’s first marriage and the petition of decedent’s disabled child seeking a dependent child’s award, the trial court properly dismissed the children’s claim pursuant to the consent judgment in their parents’ divorce judgment awarding them the life insurance benefits decedent had through his employment, since the judgment only applied to minor children and the policy was not provided through decedent’s employment; however, the trial court erred in dismissing the disabled child’s petition on the ground that he became disabled after he had reached adulthood, because the only relevant factor was whether the child was unable to maintain himself and would likely become a public charge.

Appeal from the Circuit Court of Cook County, No. 11-P-248; Hon. Review James G. Riley, Judge, presiding.

David T. Arena, Patrick D. Owens, and Adam J. Poteracki, all of Di Appeal Monte & Lizak, LLC, of Park Ridge, for appellants.

Barry A. Feinberg, Daniel J. Fumagalli, and David J. Feinberg, all of Chuhak & Tecson, P.C., of Chicago, for appellee.

Panel JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Taylor concurred in the judgment and opinion.



¶ 1 Claimants, Alejandro and Fernando Mosquera, are the children of the marriage of Marta Markman and the decedent, Raul Mosquera. Alejandro was born on November 27, 1979, and Fernando was born in June 1981. The decedent's marriage to Markman ended in a divorce pursuant to a consent judgment entered in Howard County, Maryland, on June 15, 1993. At the time the consent judgment was entered, Alejandro was 13 years old and Fernando was 12 years old.

¶ 2 The decedent was later remarried to the respondent in this case, Katie Mosquera. That marriage produced one child, Elizabeth Mosquera. The decedent died intestate on January 10, 2011. Respondent filed a petition for letters of administration on February 1, 2011. Respondent submitted an affidavit of heirship along with the petition, in which she attested, among other things, that Fernando was disabled. On February 1, 2011, respondent was appointed the supervised administrator of the decedent's estate. On that same date, the circuit court entered an order declaring heirship, in which the court found that Fernando was an adult disabled heir of the decedent.

¶ 3 On June 9, 2011, respondent filed a petition for spousal award seeking $132, 381, pursuant to section 15-1 of the Probate Act of 1975 (the Act) (755 ILCS 5/15-1 (West 2010)). Respondent was subsequently awarded three separate partial spouse's awards which totaled $80, 000.

¶ 4 On July 11, 2011, Fernando filed a petition for child's award (the Petition), seeking an award of $203, 709.33 pursuant to section 15-2(a) of the Act (755 ILCS 5/15-2(a) (West 2010)).[1] That section, entitled "Child's award, " provides:

"(a) If a minor or adult dependent child of the decedent does not reside with the surviving spouse of the decedent at the time of decedent's death, there shall be allowed to that child, exempt from the enforcement of a judgment, garnishment or attachment in the possession of the representative, a sum of money that the court deems reasonable for the proper support of the child for the period of 9 months after the death of the decedent, in a manner suited to the condition in life of the minor child and to the condition of the estate. The award may in no case be less than $10, 000 and shall be paid for the benefit of the child to such person as the court directs." 755 ILCS 5/15-2(a) (West 2010).

Fernando claimed that he was an "adult dependent child" within the meaning of the Act because he was unable to maintain himself and was a public charge. Fernando specifically claimed that he was afflicted with Crohn's disease and schizoaffective disorder and that he had resided in the inpatient psychiatry service at Johns Hopkins hospital since August 2010. The Social Security Administration (SSA) found Fernando to be disabled as of May 12, 2002, and began paying disability benefits to him in November of 2003. Fernando asserted that he incurred numerous hospital expenses as a result of his conditions and that the award he sought represented the expenses he would incur during the nine months after the decedent's death.

¶ 5 Respondent filed a response to the Petition on August 12, 2011. Respondent argued that Fernando was competent when he reached 18 years of age and that it was not until he was an adult that the SSA declared him disabled. Because Fernando's disability did not occur until he was an adult, respondent argued, Fernando was not an adult dependent child within the meaning of the Act. Respondent also argued that the equities favored not awarding Fernando the adult dependent child award. Respondent claimed that the decedent left behind a surviving spouse and a child from that marriage who needed continued financial support because the decedent was the primary wage earner in the family. However, the estate could not continue to support respondent and her child if the court awarded Fernando the award he sought. Fernando replied by arguing that he need not have become disabled when he was a minor in order to qualify for the adult dependent child award and that, under the Act, the spouse's award and the child's award were to be treated equally.

¶ 6 Fernando and Alejandro filed a claim (the Claim) against the decedent's estate on July 12, 2011. They asserted that the consent judgment entered in their parent's divorce obligated the decedent to "irrevocably designate the minor children as the beneficiaries of at least 50% of all life insurance benefits available to him through his employment." Claimants alleged that on December 1, 1998, on information and belief, the decedent purchased a $500, 000 AXA Equitable life insurance policy (the Policy) through his employer, R. N. Mosquera, M.D., S.C. The decedent paid premiums for the policy out of his employer's checking account, and the claimants attached two checks to their claim evidencing payments on May 21 and November 17, 2008. The claimants argued that the decedent violated the consent judgment by naming respondent as the beneficiary of the policy and that on February 17, 2011, AXA Equitable paid a death benefit to respondent in the amount of $553, 831.26. Claimants asked the court to award them $276, 915.63, which represented 50% of the death benefits paid under the Policy.

¶ 7 Respondent filed a motion to dismiss the Claim pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2010)). Respondent claimed that the consent judgment only obligated the decedent to maintain the claimants as irrevocable beneficiaries while they were minors and that, because the claimants were adults at the time of the decedent's death, they were not required to be designated as irrevocable beneficiaries at that time. Respondent also claimed that the decedent obtained the life insurance policy individually, not through his employment, and therefore claimants were not entitled to proceeds from that policy.

¶ 8 On December 15, 2011, the circuit court heard arguments on the Petition and the Claim. The court dismissed the Petition on the ground that the Act required Fernando to have become a dependent disabled child when he was a minor. The court dismissed the Claim on two grounds. First, the court found that the provision in the consent judgment only applied when Fernando and Alejandro were minors and that, because they were adults when the decedent passed away, Fernando and Alejandro were not entitled to be named beneficiaries of the Policy. Second, the court found that the Policy was not available through the decedent's employment but, rather, was purchased by the decedent personally. The court therefore ordered that the "619 is sustained on both counts."[2] This appeal followed.

¶ 9 On appeal, claimants challenge the circuit court's dismissal of the Claim and Fernando challenges the dismissal of the Petition. Both the Claim and the Petition were dismissed pursuant to section 2-619 of the Code.[3] A section 2-619 motion admits the legal sufficiency of the claim, but raises defects, defenses, or other affirmative matter apparent on the face of the claim or established by external submissions which defeat the action. AIDA v. Time Warner Entertainment Co., 332 Ill.App.3d 154, 158 (2002). When ruling on a section 2-619 argument, a court must accept as true all well-pled facts in the claim and all inferences that reasonably can be drawn in the claimant's favor. Chicago Teachers Union, Local 1 ...

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