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In re Marriage of Faletti

Court of Appeals of Illinois, Third District

April 27, 2017

In re MARRIAGE OF DOMINIC J. FALETTI, JR., as Guardian of the Estate and Person of Dominic J. Faletti, Sr., a Disabled Adult, Petitioner-Appellee,
v.
THOMAS KASHER, as Guardian of the Estate of Virginia Faletti, and TERESA CONVERY, as Guardian of the Person of Virginia Faletti, a Disabled Adult, Respondents-Appellants.

         Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois, Circuit No. 14-D-188 Honorable Adrienne W. Albrecht Judge, Presiding.

          PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Lytton and Schmidt concurred in the judgment and opinion.

          OPINION

          HOLDRIDGE PRESIDING JUSTICE.

         ¶ 1 The respondents, Thomas Kasher, guardian of the estate of Virginia Faletti, and Teresa Convery, guardian of the person of Virginia Faletti, appeal from the circuit court's denial of their motion to vacate the bifurcated judgment of dissolution of marriage. The respondents argue the circuit court abused its discretion when it entered the bifurcated judgment of dissolution of marriage without jurisdiction, consent, or notice.

         ¶ 2 FACTS

         ¶ 3 On June 3, 2014, the petitioner, Dominic J. Faletti, Jr., guardian of the estate and person of Dominic J. Faletti, Sr., filed a petition for dissolution of the marriage of Dominic J. Faletti Sr. and Virginia Faletti. Dominic and Virginia were married on April 9, 1975. Dominic and Virginia had no marital children. The petition alleged that Virginia had been guilty of extreme and repeated mental cruelty toward Dominic, irreconcilable differences had caused an irretrievable breakdown of the marriage, and all efforts at reconciliation had failed.

         ¶ 4 On June 24, 2014, the case was called for a hearing on the grounds for dissolution. Dominic J. Faletti, Jr. testified that reconciliation was no longer possible and Virginia indicated that she no longer wanted to maintain the marriage. The court found that irreconcilable differences had caused an irretrievable breakdown in the marriage of Dominic and Virginia who had lived apart for six months. The parties indicated that they intended to file affidavits waiving the remainder of the two-year separation period.

         ¶ 5 On September 12, 2014, counsel for the petitioner, Christopher Bohlen, filed a motion for entry of judgment of dissolution of marriage. The motion alleged that Dominic resided in a skilled care facility, he had no access to marital funds, and needed to apply for Medicaid. The motion attested "[s]o long as [Dominic] is married, he is unable to apply for Medicaid, as the assets belonging to both the husband and the wife would be applicable to defray any costs." In a subsequent emergency motion for temporary maintenance, the petitioner alleged that Virginia had evicted Dominic from the marital home, and Virginia exercised total control over the financial assets of the parties. Thereafter, the respondents filed an emergency motion for temporary maintenance alleging that Virginia also resided in a skilled care facility, and she lacked sufficient funds to pay for her housing and care.

         ¶ 6 On October 8, 2014, the case was called for status of discovery and presentation of the judgment of dissolution. In open court, Bohlen tendered to Kimberley Donald, counsel for the respondents, a proposed judgment of dissolution. Donald responded "I'm not giving the authority at this time. I need time to review it, and then I will give you *** the authority." Bohlen requested a short continuance noting "[t]here's some urgency from the standpoint of, uh, nursing home payments and so forth[.]" The court continued the case for status of discovery and presentation of judgment of dissolution.

         ¶ 7 At the October 24, 2014, hearing, Bohlen said that he had filed a motion for temporary maintenance because he

"thought that there was going to be a judgment of dissolution entered. In that event, we weren't seeking temporary maintenance-because he would then become, based upon the information we had, eligible for Medicaid assistance.
In light of the fact, then, that there was the-After the fact, it was determined there was an objection to the entry of the judgment of dissolution. Bifurcated."

         Bohlen further stated that in 2013 Virginia received a $1, 066, 000 medical malpractice settlement. Bohlen alleged that the respondents had not disclosed the location of these funds in their discovery. Donald explained that the money was no longer in the respondents' control as it had been placed in a revocable trust for the benefit of Virginia's biological children. Donald thought that Virginia no longer had the capacity to revoke the trust. Due to concerns regarding Virginia's mental acuity, Donald was pursuing guardianship proceedings on behalf of Virginia. The court ordered the trustee and trust drafting attorney to appear at the next hearing and continued the case.

         ¶ 8 At the December 16, 2014, hearing, Bohlen said that the respondents had provided vague and insufficient responses to his interrogatories. Attorney Roy Sabuco, who had entered his appearance as co-counsel for the respondents, argued that a decline in Virginia's cognitive functioning had rendered her incapable of reasonably responding to the discovery requests. Sabuco said that they had not yet initiated guardianship proceedings for Virginia because her cognitive function only recently exhibited a rapid decline. Sabuco also noted that the respondents had not received an accounting from the petitioners of the funds held in the parties' joint account. Toward the end of the hearing, Bohlen requested the entry of a bifurcated judgment of dissolution of marriage. Sabuco responded:

"we don't have any objection philosophically with the entry of that judgment; but I-I think that for the same reasons that we're having difficulty with the discovery we need the guardian to make that decision. I can represent to the Court that once a guardian is appointed that-that the guardian will-will agree to the entry of the judgment. But I-you know, I don't think ...

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