2017 IL App (3d) 160323
Opinion filed April 27, 2017 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 21st Judicial Circuit, DOMINIC J. FALETTI, JR., as Guardian of the ) Kankakee County, Illinois, Estate and Person of Dominic J. Faletti, Sr., a ) Disabled Adult, ) ) Petitioner-Appellee, ) ) Appeal No. 3-16-0323 v. ) Circuit No. 14-D-188 )
THOMAS KASHER, as Guardian of the )
Estate of Virginia Faletti, and )
TERESA CONVERY, as Guardian of the )
Person of Virginia Faletti, a Disabled Adult, ) Honorable
) Adrienne W. Albrecht Respondents-Appellants. ) Judge, Presiding. _____________________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Lytton and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶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 we’re—our client is
competent to make that decision on her own at this point.”
The court continued the case for entry of judgment order.
¶9 On January 5, 2015, the case was called for presentation of the judgment order. Donald
said that Bohlen had “an order that we are not quite ready to present.” Bohlen responded:
“[w]ell, that would be an editorial we. [Bohlen] is ready. This was the judgment
order that Sabuco had indicated that he was okay with, but wanted to make sure
that the guardianship for—I understand the guardianship has been filed.”
Bohlen asked the court to enter the judgment. Donald opposed the order noting that Virginia was
“not competent” and a guardian had not been appointed by the probate court. The case was
continued for status on the appointment of a guardian for Virginia.
¶ 10 On January 9, 2015, Donald reported that guardianship proceedings had not been
completed in the probate court. The case was continued and eventually set for status on
February 3, 2015. However, the January 23, 2015, docket entry states “judgment for dissolution
of marriage presented, signed and ordered filed.” The entry does not mention whether the order
was entered in open court or if either party was present. The written judgment of dissolution of
marriage, which was filed on the same date, stated “[t]he parties have agreed to bifurcate the
issues of grounds for the dissolution of marriage, and all remaining issues, including property,
maintenance, and division and allocation of debt, have not yet been resolved and are reserved.”
¶ 11 On February 20, 2015, the respondents filed a motion to vacate the judgment of
dissolution of marriage. The motion attested that the judgment was inadvertently entered and
Teresa Convery, as guardian of Virginia’s person, did not consent to the entry of the judgment as
it “would not have been her mother’s wish.” In response, the petitioner said that he had “no way
of knowing whether the guardian of the person did or did not consent to the judgment order,
however, her attorneys did consent to the judgment order prior to the time of its entry.”
¶ 12 On May 9, 2016, the court heard the respondents’ motion. Sabuco argued that, at the
conclusion of the January 9, 2015, hearing, the case was continued to February 3, 2015, for
status on the entry of the judgment. On January 21, 2015, the probate court granted the petition
for guardianship and appointed guardians of the person and estate of Virginia. The guardianship
order was entered on January 23, 2015. On the same date, Bohlen presented the judgment of
dissolution of marriage to the court while the respondents were not present. Sabuco argued that
the case was set for presentation of the judgment on February 3, 2015, and the respondents
received no notice of the January 23, 2015, entry of the bifurcated judgment of dissolution of
marriage. Sabuco contended that Convery told the respondents’ attorneys that Virginia did not
want the dissolution because of her strong Catholic background. As a result, Sabuco and Donald
intended to object to the entry of the judgment at the February 3, 2015, hearing.
¶ 13 In its ruling, the court noted that the case was filed on June 3, 2014. Shortly thereafter,
the parties conducted a grounds for divorce hearing and neither party objected to the grounds
heard. The court found:
“on December 16th, this Court—in conversation with Counsel, with everyone
there, said, Judge, we just need to enter a guardianship and then we’ll enter the
judgment order. That was represented by Counsel.
Then after that—and—and then, the Court was astounded because both
counsels stood there, after this case had been pending for six months and said,
Judge, we don’t think our client is competent, we think we need a guardianship,
after the case had been pending and these attorneys had been representing this
person.
So then they filed the guardianship, and the Court gave them an
opportunity to do that and time to do that repeatedly. The Court kept resetting this
for entry of a judgment order because that’s what the attorneys had indicated to
the Court was going to happen.
This is not a matter of somebody running in and sneaking in. This is a
matter of the Court saying, Okay, where’s the order of guardianship, where’s the
judgment order, because that’s where this Court was going.
Because, honestly, this is a dispute not between the parents and the – this
is a—this is—this is an effort on the part of the adult children to get an advantage
with regards to whatever estate—which the Court wasn’t allowed to find out what
it amounted to because they’re—the—of the intransigence of the children of
Virginia.
So then the order gets signed. All this Court understood from the attorneys
that it was waiting for was an order of guardianship. And because the grounds had
already been heard, the case had already been filed without any objection, that’s
all this Court was waiting for.
Both parties were in fragile health. The—both parties were—were in
nursing homes. The Court understood that at the time. Both parties were not
managing their own finances. Their adult children were. So the fault in this case
does not fly with either Mr. Faletti or Mrs. Faletti. It lies within their adult
children.
And to refuse to enter the order and to vacate the order would, in this
Court’s opinion, validate all of the efforts at obfuscation and delay on the part of
Virginia’s children because that’s what happened in this case.
It’s a straightforward, simple case. There was a grounds hearing, it was
not contested, and the parties agreed that they would enter an order, and then we
have—and in the meantime, we have delay. And the delay is caused entirely by
Virginia Faletti’s children.
Therefore, because there was nothing done untoward—the transcripts are
clear. At every stage, the Court is saying, Where’s the order, where’s the order,
where’s the order? The order was handed up. There was no objection to it. We
were simply waiting for the guardianship. That’s the Court’s understanding, that’s
Mr. Bohlen’s understanding, and that’s the impression that was given to this
Court by the attorneys for Virginia Faletti.
So for those reasons, the motion to vacate will be denied.”
¶ 14 The respondents appeal from the court’s denial of their motion to vacate the judgment of
dissolution.
¶ 15 ANALYSIS
¶ 16 The respondents argue that the denial of their motion to vacate the bifurcated judgment of
dissolution of marriage was the result of an abuse of discretion because neither Virginia nor her
guardians consented to the entry of the judgment.
¶ 17 Section 2-1203(a) of the Code of Civil Procedure permits a party to move to vacate a
civil judgment 30 days after its entry. 735 ILCS 5/2-1203(a) (West 2014). We review the court’s
denial of a motion to determine if the court abused its discretion and did substantial justice
between the parties. In re Marriage of Sutherland, 251 Ill. App. 3d 411, 414 (1993).
¶ 18 Under the Illinois Marriage and Dissolution of Marriage Act, a court may enter a
judgment of dissolution of marriage where
“the spouses have lived separate and apart for a continuous period in excess of 2
years and irreconcilable differences have caused the irretrievable breakdown of
the marriage and the court determines that efforts at reconciliation have failed or
that future attempts at reconciliation would be impracticable and not in the best
interests of the family.” 750 ILCS 5/401(a)(2) (West 2014).
The spouses may waive the two years separation period if they have lived separate and apart for
a continuous period of at least six months and they file a written waiver with the court. Id. The
court shall not enter judgment unless it has jurisdiction and it considered, approved or reserved
ruling on issues related to child custody and support, spousal support, and property disposition.
750 ILCS 5/401(b) (West 2014). Where the court reserves any of these issues, it may enter a
bifurcated judgment “either upon (i) agreement of the parties, or (ii) motion of either party and a
finding by the court that appropriate circumstances exist.” Id.
¶ 19 The judgment and the court’s oral ruling on the respondents’ motion to vacate the
dissolution establish that the court thought that the parties had consented to the entry of a
bifurcated judgment of dissolution of marriage prior to the entry of the order on January 23,
2015. The court believed that, as there was no objection to the bifurcated judgment from the
attorneys, it was “simply waiting for the guardianship.” However, the record does not support the
court’s ruling as the respondents’ attorneys had not consented to the entry of the judgment and
had expressly reserved the decision on whether to consent to the order for the appointed
guardian.
¶ 20 Throughout the record, counsel for the respondents withheld its consent to the entry of
the judgment. On October 8, 2014, Donald stated that she was not giving Bohlen permission to
enter the dissolution as she needed time to review it. On October 24, 2014, Bohlen recognized
that, at the prior hearing, “it was determined there was an objection to the entry of the judgment
of dissolution.” Then, on December 16, 2014, Sabuco said “we don’t have any objection
philosophically with the entry of that judgment; but *** we need the guardian to make that
decision.” (Emphasis added.)
¶ 21 The distinction between “not objecting” and “consenting to” the entry of the judgment is
paramount to our review of the court’s ruling. The court could only enter a bifurcated judgment
if the parties consented to it or the court made a finding that appropriate circumstances existed.
Id. The second clause is not at issue as there is no indication that the court made a finding that
“appropriate circumstances” required entry of the bifurcated judgment. Id. Instead the court
found “the parties agreed that they would enter an order.” Thus, we must determine if the record
establishes that the respondents consented to the entry of the bifurcated judgment.
¶ 22 “Giving consent and offering no objection are different acts.” Mulcahey v. Vehon, 229 Ill.
App. 454, 471 (1923). A party who does not object to a proceeding assumes a passive position.
Id. He is neither agreeing to the proposal nor opposing it. Id. In contrast, by providing consent, a
party assumes an active position in furtherance of the proposal. Id.
¶ 23 From our review of the record, there is no indication that the respondents consented to the
entry of the bifurcated judgment. Specifically, Sabuco expressly reserved the respondents’
decision on whether to consent to the judgment for Virginia’s appointed guardian. Consistent
with Sabuco’s statement, at the January 5, 2015, hearing, Donald reiterated that the respondents
were not yet ready to consent to the entry of the judgment as the guardianship proceedings had
not been resolved. On January 9, 2015, Donald reported that the guardianship proceedings were
still in progress and the case was continued to February 3, 2015, for status on the entry of the
judgment. Bohlen circumvented the February 3, 2015, status date by filing the bifurcated
judgment, which the respondents had consistently withheld consent to, on January 23, 2015. The
guardians of Virginia’s estate and person were appointed on the same date, and there is no
indication in the record that either of Virginia’s guardians appeared in court on January 23, 2015,
to expressly consent to the entry of the judgment. Therefore, the record establishes that the
judgment was entered without the respondents’ consent, and the court abused its discretion and
duty to do substantial justice between the parties when it denied the respondents’ motion to
vacate the judgment.
¶ 24 In his appellee’s brief, the petitioner argues that Sabuco had consented to the entry of the
judgment on behalf of the guardian when he stated “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.”
This interpretation of Sabuco’s statement is entirely inconsistent with the purpose of appointing a
guardian and impermissibly infringes on the statutory obligations of the guardian.
¶ 25 During the pendency of this case, Sabuco and Donald initiated guardianship proceedings
after observing that Virginia’s mental acuity had rapidly declined. While these proceedings
slowed the progress of the underlying divorce case, Sabuco and Donald had a professional
obligation to initiate the guardianship proceedings after they observed Virginia’s cognitive
decline. Ill. Rs. Prof’l Conduct R. 1.14(b) (eff. Jan. 1, 2010). Once appointed, the guardian of
Virginia’s person was empowered to “make provisions for [Virginia’s] support, care, comfort,
health, education and maintenance.” 755 ILCS 5/11a-17(a) (West 2014). Such decisions were to
be made consistent with Virginia’s “personal, philosophical, religious and moral beliefs, and
ethical values.” 755 ILCS 5/11a-17(e) (West 2014).
¶ 26 The motion to vacate and Sabuco’s argument at the hearing on the motion establish that
Convery, as guardian of Virginia’s person, sought to exercise her power to make provisions for
Virginia that were consistent with Virginia’s personal and religious beliefs. 755 ILCS 5/11a
17(a), (e) (West 2014). Specifically, Convery told the attorneys that Virginia would not want a
divorce because of her strong Catholic beliefs. Additionally, Convery felt that the dissolution
“would not have been her mother’s wish.” These representations establish that Convery did not
intend to consent to the entry of the bifurcated judgment of dissolution. Instead, Convery
reasonably intended to exercise her statutory duties at the February 3, 2015, hearing, to oppose
the entry of the bifurcated judgment of dissolution of marriage. Id. To interpret Sabuco’s
prospective statement that the guardian “will agree to the entry of the judgment” as binding on
the later-appointed guardian would render the guardianship proceedings a mere formality. Such a
result is entirely inconsistent with the statutory role of a guardian of the person. See 755 ILCS
5/11a-17 (West 2014). We conclude that Sabuco’s representation that the guardian would
consent to the entry of the judgment did not bind the guardian and was not prospective consent.
¶ 27 CONCLUSION
¶ 28 The judgment of the circuit court of Kankakee County is reversed. The cause is remanded
with directions to vacate the bifurcated judgment of dissolution of marriage and conduct any
further proceedings. Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (“In all appeals the reviewing
court may, in its discretion, and on such terms as it deems just, *** enter any judgment and make
any order that ought to have been given or made, and make any other and further orders and
grant any relief *** that the case may require.”).
¶ 29 Reversed and remanded with directions.