In re Marriage of Tener

2023 IL App (1st) 220890-U

• Court: Appellate Court of Illinois
• Decided: December 8, 2023
• Docket: 1-22-0890
• Status: Unpublished

Opinion

2023 IL App (1st) 220890-U No. 1-22-0890 Order filed December 8, 2023

Sixth Division NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ In re MARRIAGE OF JOSEPH TENER, ) Appeal from the Circuit Court ) of Cook County, Illinois. Petitioner-Appellee, ) ) No. 14 D2 30460 and ) ) The Honorable VERONICA WALTER, ) Jeanne Reynolds, ) Judge, Presiding. Respondent-Appellant. )

JUSTICE C.A. WALKER delivered the judgment of the court. Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment.

ORDER

Held: We dismiss the appeal where the appointment of a guardian ad litem was not a void judgment and the orders on appeal were not final and appealable under Illinois Supreme Court Rule 304(a).

¶1 On interlocutory appeal from a dissolution of marriage case, appellant Veronica Walter

argues (1) the dissolution court denied her access to counsel in violation of her procedural and

substantive due process rights and (2) the court’s appointment of a guardian ad litem is void No. 1-22-0890

because the court had no legal authority to order the appointment. For the following reasons, we

find the appointment of a guardian ad litem is not a void judgment and the orders on appeal were

not final and appealable under Illinois Supreme Court Rule 304(a) (eff. March 8, 2016).

Accordingly, we dismiss the appeal.

¶2 I. BACKGROUND

¶3 Joseph Tener filed a petition for dissolution of marriage from Veronica Walter in October

2014. Between 2016 and 2018, three different attorneys filed appearances as Walter’s counsel but

later withdrew their representations. After the third attorney withdrew, Walter filed a pro se

appearance. In August 2018, Tener filed a motion for physical or mental examination of Walter,

and the court appointed Dr. Louis Kraus to conduct a mental health examination to determine

Walter’s mental competency. Dr. Kraus’s report is not included in the record on appeal. According

to our decision in a prior related appeal, Dr. Louis Kraus evaluated Walter and opined that she was

delusional, extremely paranoid, and severely disabled. In re Estate of Walter, 2023 IL App (1st)

211600, ¶ 4. After reviewing Dr. Kraus’s opinion, the court appointed Beth McCormack to serve

as Walter’s guardian ad litem. Id.

¶4 In April 2019, Brad Pawlowski entered an appearance as Walter’s counsel. On October 25,

2019, the court discharged Pawlowski’s representation. The court further ordered McCormack

initiate guardianship proceedings in the probate court for the person and estate of Walter and stayed

subsequent appearances of counsel for Walter “until guardianship proceedings address new

representation.” By agreement of the parties, the court ordered Walter to pay McCormack

$4,197.86 for guardian ad litem fees incurred as of October 24, 2019. 1

1 Walter does not challenge these fees in the instant appeal.

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¶5 On January 24, 2020, the court continued the dissolution proceeding until April 8, 2020.

In its order, the court stated, “a determination must be made in [the probate court] regarding

temporary and permanent guardianship prior to this court’s proceeding to trial or approving a

marital settlement agreement.” On January 4, 2021, Pinderski & Pinderski, Ltd. filed a motion for

leave to file an appearance as Walter’s counsel, and the court entered and continued the motion.

During a court hearing on January 11, Jerome Pinderski, an attorney at Pinderski & Pinderski,

Ltd., asserted Walter had a right to hire an attorney in the dissolution proceeding because the

probate court had yet to adjudicate Walter disabled. The court again continued dissolution

proceedings until the probate court made a ruling on guardianship.

¶6 In April 2022, McCormack and two law firms that McCormack hired to work on the

probate matter, Chuhak & Tecson, P.C. and Golan Christie Taglia LLP, filed petitions for setting

attorney fees and costs in the dissolution matter. On June 22, the court found the requested fees

and costs were “fair, reasonable and necessary” and awarded McCormack and the law firms

attorney fees and costs totaling $106,666.11. The court ordered that the fees and costs would be

“subject to allocation, either by agreement or at the time of trial.” The Court also ordered “[n]o

just reason staying enforcement of this Judgment.” This appeal follows.

¶7 II. ANALYSIS

¶8 On appeal, Walter argues (1) the dissolution court denied her access to counsel in violation

of her procedural and substantive due process rights and (2) the court’s appointment of a guardian

ad litem is void where the court had no legal authority to order the appointment. As a result, Walter

requests this court vacate the orders entered during the time she was denied counsel, including the

October 25, 2019, order staying appearances and the June 22, 2022, fee awards. Walter also

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requests this court declare void and vacate the dissolution court’s appointment of a guardian ad

litem.

¶9 McCormack responds that (1) fee awards are not appealable prior to the final dissolution

judgment despite the court’s Rule 304(a) finding of “[n]o just reason staying enforcement of this

Judgment”; (2) even if this court finds the orders are appealable under Rule 304(a), Walter failed

to establish due process violations; and (3) the appointment of a guardian ad litem was not a void

order, and the court had inherent authority to appoint a guardian ad litem in the dissolution case.

¶ 10 A. Void Order

¶ 11 We first consider Walter’s argument that the dissolution court lacked legal authority to

appoint McCormack as a guardian ad litem. Walter argues neither section 506 of the Marriage and

Dissolution of Marriage Act (750 ILCS 5/506 (West 2018)) nor Illinois Supreme Court Rule 215

(eff. Jan. 1, 2018), both of which the court relied on in its determination, provide a basis for the

appointment of a guardian ad litem for an adult litigant. Furthermore, Walter contends the Illinois

Probate Act is not applicable because the court never followed the statutory procedures for

appointing a guardian ad litem under the Act. As such, Walter posits that the appointment is a void

order. McCormack claims the court had inherent authority to appoint a guardian ad litem and the

appointment is not a void order because the dissolution court had personal and subject matter

jurisdiction.

¶ 12 Because voidness is a question of jurisdiction (LVNV Funding, LLC v. Trice, 2015 IL

116129, ¶ 27), we will first determine whether the appointment is a void order. We review de novo

whether the order is void or voidable. Id.; American Chartered Bank v. USMDS, Inc., 2013 IL App

(3d) 120397, ¶ 10. Where jurisdiction is lacking, any resulting judgment rendered is void and may

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be attacked either directly or indirectly at any time. People v. Castleberry, 2015 IL 116916, ¶ 11.

“Judgments entered in a civil proceeding may be collaterally attacked as void only where there is

a total want of jurisdiction in the court which entered the judgment, either as to the subject matter

or as to the parties.” (Internal quotation marks omitted.) In re Marriage of Mitchell, 181 Ill. 2d

169, 174 (1998). A voidable judgment, in contrast, “is one entered erroneously by a court having

jurisdiction and is not subject to collateral attack.” (Internal quotation marks omitted.) Castleberry,

2015 IL 116916, ¶ 11. When a court has acquired jurisdiction, an order will not be rendered void

merely because of an error or impropriety in the issuing court’s determination of the law. Mitchell,

181 Ill. 2d at 174. A voidable judgment “is correctable on review [only] if a timely appeal is taken.”

People v. Speed, 318 Ill. App. 3d 910, 914 (2001).

¶ 13 This court has rejected the contention that a circuit court’s jurisdiction depends on whether

the court properly follows certain statutory requirements. LVNV Funding, 2015 IL 116129, ¶ 29

(citing Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001)). Rather, the court’s jurisdiction is

granted by the constitution. Id. ¶ 30. “[I]t cannot be the case that the failure to satisfy a certain

statutory requirement or prerequisite can deprive the circuit court of its ‘power’ or jurisdiction to

hear a cause of action.” Id. Thus, whether a judgment is void in a civil lawsuit that does not involve

an administrative tribunal or administrative review depends solely on whether the circuit court

which entered the judgment possessed personal or subject matter jurisdiction. Id. ¶ 32. “While the

legislature can create new justiciable matters by enacting legislation that creates rights and duties,

the failure to comply with a statutory requirement or prerequisite does not negate the circuit court’s

subject matter jurisdiction or constitute a nonwaivable condition precedent to the circuit court’s

jurisdiction.” Id. ¶ 37.

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¶ 14 Here, Walter does not challenge the circuit court’s personal or subject matter jurisdiction.

Rather, Walter argues McCormack’s appointment as guardian ad litem did not comport with any

statutory authority. Following our supreme court precedent, we find the circuit court’s alleged lack

of statutory authority to appoint McCormack as guardian ad litem does not deprive the circuit court

of jurisdiction thereby constituting a void order. Furthermore, our authority to review the

appointment as a voidable order is hindered by Walter’s failure to appeal the order, and for reasons

stated below, our inability to determine whether the order is a step in the procedural progression

leading to the appealed fee awards.2

¶ 15 Nonetheless, we are persuaded by McCormack’s argument that the court had inherent

authority to appoint McCormack as guardian ad litem in the dissolution proceedings. Our supreme

court reviewed the issue of whether a circuit court’s appointment of a guardian ad litem for an

adult litigant adjudicated mentally disabled was proper in the absence of statutory authority. In re

Mark W., 228 Ill. 2d 365 (2008). In Mark W., the court explained that a disabled person is “viewed

as ‘a favored person in the eyes of the law’ and is “entitled to vigilant protection.” Id. at 374-75.

When a person is adjudicated mentally disabled, that person remains under the jurisdiction of the

court, and the court has “a duty to judicially interfere and protect the interests of the disabled

person.” Id. at 375. “To fulfill this duty, the court’s authority is not limited to express statutory

terms.” Id. Therefore, the supreme court held that the circuit court had authority to appoint a

guardian ad litem in the absence of statutory authority. Id.

2 Walter also challenged the dissolution court’s guardian ad litem appointment as a basis for her argument that McCormack had no authority to initiate guardianship proceedings in a prior appeal. In re Estate of Walter, 2023 IL App (1st) 211600. However, this court did not reach the merits of the appointment in our decision. Id.

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¶ 16 Here, the record shows the court and Tener were concerned about Walter’s mental capacity

to participate in the dissolution proceeding. Tener filed a motion for physical or mental

examination of Walter noting that the court was concerned about Walter’s ability to represent

herself at trial. The court granted the motion and appointed Dr. Louis Kraus to conduct a mental

health examination to determine Walter’s mental competency. According to our decision in a prior

related appeal, Dr. Louis Kraus evaluated Walter and opined that she was delusional, extremely

paranoid, and severely disabled. In re Estate of Walter, 2023 IL App (1st) 211600, ¶ 4. Walter

even referred to herself as “disabled respondent” in a submission to the court. The court was faced

with a litigant who overtly exhibited mental health issues, admittedly suffered from a disability,

and who was found to have mental health issues after a court-appointed medical examination.

¶ 17 As a person adjudicated mentally disabled is “favored [ ] in the eyes of the law” and entitled

to protections, so, too, are individuals, like Walter, entitled to protections. Illinois carries “the

important public policy of this State’s commitment to compassionate care for the mentally

disabled.” American Federation of State, County and Municipal Employees, AFL-CIO v. State,

124 Ill. 2d 246, 264 (1988). As such, it was incumbent on the court to protect Walter’s interest as

a person demonstrating a lack of mental capacity by appointing a guardian ad litem to initiate

guardianship proceedings. Following the court’s holding in Mark W., the circuit court had inherent

authority to appoint McCormack as guardian ad litem in the dissolution proceeding. See generally

J.H. v. Ada S. McKinley Community Services, Inc., 369 Ill. App. 3d 803, 819 (2006) (although

finding circuit court had no authority to appoint a guardian ad litem for a competent adult litigant,

reviewing court noted that it “did not hold that a trial court cannot appoint a guardian ad litem for

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an adult litigant not yet adjudged disabled, where the court has concerns about the mental capacity

of the litigant and there is no objection to the appointment of the guardian ad litem”).

¶ 18 B. Appeals Under Illinois Supreme Court Rule 304(a)

¶ 19 Next, we address McCormack’s Rule 304(a) challenge. Walter appeals from the dissolution

court’s June 22 orders awarding attorney fees and costs to McCormack, Chuhak & Tecson, P.C.,

and Golan Christie Taglia LLP, asserting that these orders are reviewable under Rule 304(a).

McCormack claims the orders are not appealable under Rule 304(a) despite the court’s finding of

“[n]o just reason exists staying enforcement of the Judgment.” This court must “independently

determine whether the order was in fact, final and appealable.” In re Estate of Rosinski, 2012 IL

App (3d) 110942, ¶ 22.

¶ 20 Rule 304(a) provides, “If multiple parties or multiple claims for relief are involved in an

action, an appeal may be taken from a final judgment as to one or more but fewer than all the

parties or claims only if the trial court has made an express written finding that there is no just

reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 304(a) (eff. March 8, 2016).

“Thus, Rule 304(a) may apply where (1) the parties present multiple claims, (2) the trial court

enters a judgment on at least one of those claims, and (3) that judgment is final.” In re Marriage

of Teymour and Mostafa, 2017 IL App (1st) 161091, ¶ 13. The purpose of Rule 304 is to

“discourage piecemeal appeals in the absence of a good reason to proceed in such a fashion and

also to remove any uncertainty about the proper course when a judgment is entered regarding fewer

than all matters in controversy.” (Internal quotation marks omitted.) Mares v. Metzler, 87 Ill. App.

3d 881, 884 (1980).

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¶ 21 Our supreme court has held that a petition for dissolution of marriage advances a single

claim: the parties’ request for an order dissolving their marriage. In re Marriage of Leopando, 96

Ill. 2d 114, 119 (1983).3 The issues involved are ancillary to the cause of action and do not

represent separate, unrelated claims. Id. Therefore, orders resolving such issues are not appealable

under Rule 304(a), which governs appeals from actions involving multiple claims. In re Marriage

of Crecos, 2021 IL 126192, ¶ 18 (citing Leopando, 96 Ill. 2d at 120). Indeed, one of the purposes

of the Marriage and Dissolution of Marriage Act is to encourage “the court to decide all matters

incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to

achieve finality, promote judicial economy, and avoid multiple litigations and complications which

can result from the entry of partial judgments, particularly judgments which dissolve the marriage

but ‘reserve’ remaining issues for later determination.” In re Marriage of Cohn, 93 Ill. 2d 190,

197-98 (1982) (quoting Ill. Ann. Stat., ch. 40, ¶ 401(3), Historical & Practice Notes, at 105 (Smith-

Hurd 1980) (codified at 750 ILCS 5/401(3))). “Cases involving dissolution of marriage

proceedings are inherently more problematic upon appellate review due to the large number of

separate issues that are determined in a single proceeding because all of these issues are not decided

at the same time.” In re Marriage of King, 336 Ill. App. 3d 83, 88 (2002), aff’d, 208 Ill. 2d 332

(2003). For these reasons, Illinois courts are hesitant to review orders entered prior to the final

dissolution judgment.

3 In 2010, Illinois Supreme Court Rule 304(b)(6) (March 8, 2016) superseded Leopando as it relates to child custody judgments. Illinois courts still follow the reasoning in Leopando in marriage dissolution cases involving other pre-dissolution orders, including those pertaining to attorney fees (In re Marriage of Arjmand, 2017 IL App (2d) 160631), maintenance (In re Marriage of Jenson, 2013 IL App (4th) 120355), and marital assets and liabilities (In re Marriage of Susman, 2012 IL App (1st) 112068).

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¶ 22 Relevant here, this appellate court held an award for interim attorney fees “is strictly

temporary in nature” and “subject to adjustment (including, if necessary, the disgorgement of

overpayments to an attorney) at the close of the dissolution proceeding.” In re Marriage of

Arjmand, 2017 IL App (2d) 160631, ¶ 20 (citing 750 ILCS 5/501(c-1)(2) (West Supp. 2015)).

Thus, “the interlocutory appeal of interim-attorney-fee awards is not permitted by any supreme

court rule.” Id. ¶ 21. Additionally, this appellate court found a court’s order of guardian ad litem

fees and costs was not appealable under Rule 304(a). See Rosinski, 2012 IL App (3d) 110942,

¶ 24. There, a settlement claim commenced after a minor was injured in a car accident. Id. ¶ 3.

During the settlement proceeding, the court appointed a guardian ad litem for the minor, and the

insurance company for the other driver involved in the accident hired a law firm to facilitate the

settlement claim. Id. ¶ 3. Several months later, the guardian ad litem filed a petition for fees. Id.

¶ 8. During the hearing on the petition, the guardian ad litem argued she had to “get things in order”

due to the firm’s “failure to have their pleadings in order.” Id. ¶ 11. The court ordered the firm to

pay the guardian ad litem’s fees, and the firm filed a motion to vacate. Id. ¶¶ 11, 14. The court

upheld its order and stated, “I don’t see any reason to delay enforcement or appeal of the order.”

Id. ¶ 14. The Third District held the order was not appealable under Rule 304(a). Id. ¶¶ 23-24. The

court found the settlement was still pending and the guardian ad litem’s duties were not terminated.

Id. ¶ 23. Therefore, subsequent appeals in the case remained possible, and this possibility

conflicted with the purpose of Rule 304(a) to discourage piecemeal litigation. Id. The court further

determined that the circuit court’s 304(a) finding did not render the court’s fee award appealable.

Id. ¶ 24.

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¶ 23 During the dissolution proceeding here, McCormack requested attorney fees and costs in

the amount of $36,713.25 for work conducted in the probate proceeding, including communicating

with probate counsel; reviewing pleadings, orders, and reports; conducting phone conferences,

meetings, and court appearances; and participating in depositions. Chuhak & Tecson P.C. and

Golan Christie Taglia LLP collectively requested attorney fees and costs in the amount of

$59,462.86 and $9,090 respectively for work conducted in the probate proceeding, including

corresponding with McCormack; reviewing pleadings, orders, and reports; conducting phone

conferences, meetings, and court appearances; consulting experts; and preparing for and attending

depositions. The court found the fees and costs were “fair, reasonable and necessary” and granted

the petitions. Although Walter appeals the fee awards, Rule 304(a) provides that an appeal may be

taken when “multiple claims for relief are involved in an action,” and, as stated in Leopando, issues

arising in a dissolution of marriage case, like attorney fees and costs, do not constitute a separate

claim for purposes of Rule 304(a). See Leopando, 96 Ill. 2d at 119.

¶ 24 Furthermore, to allow review of the fee awards in this appeal would be contrary to the

purpose of Rule 304(a) to discourage piecemeal litigation. Rosinski, 2012 IL App (3d) 110942, ¶

23; Arjmand, 2017 IL App (2d) 160631, ¶ 35. McCormack remains Walter’s guardian ad litem in

the dissolution case, where she may incur more fees, and may continue seeking legal services from

Chuhak & Tecson P.C. and Golan Christie Taglia LLP. Because of this, the aggregate amount of

fees and costs is ever-changing, and subsequent appeals on the issue remain possible. See Rosinski,

2012 IL App (3d) 110942, ¶ 23 (finding the order at issue was not a final judgment under Rule

304(a) because “the firm could be ordered to pay additional [guardian ad litem] fees or other costs

due to the ongoing nature of the pending petition [to settle minor’s cause of action]”).

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¶ 25 Walter argues the fee awards were appealable under Rule 304(a) because they were solely

based on the work performed during the probate proceeding and became final dispositions at the

conclusion of the probate proceeding. This argument is inconsequential to our determination. The

issue of fees and costs was raised and decided in the dissolution case. Leopando found that a

petition for dissolution advances a single claim and that the issues involved are ancillary to the

cause of action. Leopando, 96 Ill. 2d at 119. Therefore, the ancillary issues are not final judgments

as to separate claims in accordance with Rule 304(a). Walter also argues that the court’s Rule

304(a) finding that “[n]o just reason exists staying enforcement of this Judgment” was legally

sufficient to meet the rule’s requirements. Although the court made a Rule 304(a) finding, “[t]he

sound policy of resolving all matters incident to dissolution in a single judgment should not be

circumvented by the mere inclusion of Rule 304(a) language.” Id. at 120; see also Rosinski, 2012

IL App (3d) 110942, ¶ 22 (“a trial court cannot make a nonfinal order appealable simply by

including language that complies with Rule 304(a)”). For the foregoing reasons, we find the June

22 orders were not final and appealable under Rule 304(a).

¶ 26 III. CONCLUSION

¶ 27 We find the appointment of guardian ad litem was not a void judgment and the orders on

appeal were not final and appealable under Illinois Supreme Court Rule 304(a). Accordingly, we

dismiss the appeal.

¶ 28 Appeal dismissed.

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