IN RE ESTATE OF KES

• Decision Date: 30 March 2004
• Docket Number: No. 4-03-0625., No. 4-03-0612
• Citation: IN RE ESTATE OF KES, 807 N.E.2d 681, 347 Ill. App.3d 452, 283 Ill.Dec. 76 (Ill. App. 2004)
• Parties: In re the ESTATE OF K.E.S. and J.M.S., Minors (Joseph T. Schneider, Joan M. Schneider, and Benito DiTerlizzi, Petitioners-Appellees, v. Amy J. Schneider, Respondent-Appellant, and Mark E. Sliney, Respondent). In re the Estate of K.E.S. and J.M.S., Minors (Joseph T. Schneider and Joan M. Schneider, Petitioners, and Mark E. Sliney, Respondent, and Karen Coates and Dan Coates, Intervenors-Appellants, v. Amy J. Schneider and Benito DiTerlizzi, Respondents-Appellees).
• Court: Appellate Court of Illinois

807 N.E.2d 681

347 Ill. App.3d 452

283 Ill.Dec. 76

In re the ESTATE OF K.E.S. and J.M.S., Minors (Joseph T. Schneider, Joan M. Schneider, and Benito DiTerlizzi, Petitioners-Appellees, v. Amy J. Schneider, Respondent-Appellant, and Mark E. Sliney, Respondent). In re the Estate of K.E.S. and J.M.S., Minors (Joseph T. Schneider and Joan M. Schneider, Petitioners, and Mark E. Sliney, Respondent, and Karen Coates and Dan Coates, Intervenors-Appellants, v. Amy J. Schneider and Benito DiTerlizzi, Respondents-Appellees).

Nos. 4-03-0612, 4-03-0625.

Appellate Court of Illinois, Fourth District.

Argued February 25, 2004.

Decided March 30, 2004.

Rehearing Denied May 10, 2004.

Adele M. Saaf (argued), Bloomington, for Amy J. Schneider in No. 4-03-0612.

Kurt B. Bickes (argued), Bickes, Wilson & Moss, Decatur, for Benito DiTerlizzi in Nos. 4-03-0612, 4-03-0625.

James T. Jackson (argued), Bridget C. Hogan, Samuels Miller, Schroeder, Jackson & Sly, Decatur, for Karen Coates.

Adele M. Saaf, Bloomington, for Amy J. Schneider in No. 4-03-0625.

Mark E. Sliney, Miami, FL, Pro Se.

Justice MYERSCOUGH delivered the opinion of the court:

After a hearing in January 2003, the trial court denied Amy J. Schneider's petition to terminate guardianship of her biological children, K.E.S. and J.M.S., and the petition of Karen and Dan Coates (the Coateses) to be appointed successor guardians. The court confirmed guardianship in Benito DiTerlizzi. Two separate appeals have been filed. In No. 4-03-0612, Amy appeals the denial of her petition to terminate guardianship, arguing (1) the trial court committed reversible error by not dismissing the Coateses, interveners, from the lawsuit; (2) the court exceeded its authority by permitting Benito, the surviving guardian, to maintain guardianship after he allowed the minor children to reside with Karen and Dan Coates, the interveners; (3) the court erred in finding that disputed questions of fact be decided against Amy; (4) the court's finding that Amy and Benito had consensual sex was against the manifest weight of the evidence; and (5) the court abused its discretion by failing to remove Benito as guardian. In No. 4-03-0625, Karen and Dan Coates appeal the denial of their petition to be appointed successor guardians, arguing (1) the trial court erred in denying their petition for appointment of successor guardian, and (2) the court erred by ordering them to pay one-half of the guardian ad litem (GAL) fees. We affirm in part and remand in part with directions.

I. BACKGROUND

On January 23 and 24, 2003, the trial court held a hearing on Amy's petition to terminate guardianship and the Coateses' petition to be appointed successor guardians. Testimony and evidence admitted in the January 2003 hearing revealed the family history leading up to Amy's petition to terminate guardianship.

Amy Schneider and Mark Sliney are the natural parents of K.E.S. and J.M.S. Amy and Mark were married on May 27, 1988. K.E.S. was born on June 21, 1988; J.M.S. was born on October 22, 1989. When Amy and Mark were divorced on June 26, 1991, the issue of child custody was not decided. At the time of the divorce, Amy resided in Bloomington, Illinois, and Mark resided in St. Louis, Missouri. The children were living in Decatur, Illinois, with Amy's parents, Joseph and Joan Schneider (the Schneiders).

Amy testified that she attempted to put the children up for adoption shortly after J.M.S. was born. Eventually, Amy voluntarily gave physical possession of the children to her parents, the Schneiders. Amy testified that she felt she. was unable to care for the children because she was suffering from financial, mental, and emotional difficulties.

In June 1993, the children moved to Bellevtie, Washington, to live with their maternal aunt and uncle, Christine and Benito DiTerlizzi. On November 12, 1993, the Schneiders filed a petition for appointment of guardians of minors' persons, pursuant to section 11-5 of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5 (West 1992)), seeking to declare Christine and Benito DiTerlizzi guardians of K.E.S. and J.M.S. Mark Sliney was defaulted for failing to appear.

The record shows that on November 12, 1993, the trial court appointed Christine and Benito DiTerlizzi temporary guardians of K.E.S. and J.M.S. On March 16, 1995, the trial court appointed Christine and Benito as plenary coguardians of K.E.S. and J.M.S., then six and five years old. In its order, the court found that Amy had not exhibited responsibility for her children or stability since September 1990; Amy had not manifested a willingness to provide food, clothing, shelter, or nurture for the children; the children desired to live with Christine and Benito; and Christine and Benito had sufficient income to provide for the children. The court concluded that it was in the best interests of the minor children that Christine'and Benito be appointed as coguardians to K.E.S. and J.M.S.

The children continued living with Christine and Benito in Washington, calling them "mom" and "dad." In November 1998, Christine was diagnosed with cancer. In July 2001, Amy traveled to Washington to visit her ailing sister and Benito. When Amy came to visit, the children were visiting their grandparents, the Schneiders, in Decatur, Illinois. Amy testified that during this visit, Benito attempted to rape her. She also testified that she was intoxicated that night. Benito testified that the two had consensual sex. Benito also testified that Amy and her paramour, Wayne, had attempted to extort money from him after Amy returned home. They promised to keep the "rape" secret in exchange for money. Benito testified that it was only after he refused to comply with their, request that he was visited by the police (1 1/2 months after the sexual encounter). After this visit by the police, Benito testified that he heard nothing further from them. No charges were ever filed.

On August 17, 2001, Christine died, leaving Benito as the sole guardian of K.E.S. and J.M.S. Christine's will named her other sister, Karen Coates, as the successor guardian of K.E.S. and J.M.S. in the event Benito was unable or unwilling to care for the children. The will also named Karen as successor trustee of a "$5-600,000.00" trust (estimates varied) established for the children's care if she were to become guardian. K.E.S.and J.M.S. continued living in Washington with Benito until August 2002.

At the January 2003 hearing, Benito testified that the children had been honor students in the past but had academic difficulties during the school year following Christine's death. He also testified that he was "exhausted" as a result of his wife's long illness and later death and the allegations of rape. At the request of K.E.S. and Karen Coates, Benito agreed to let the children move to Texas to live with the Coateses for the following school year. Benito characterized this relocation as being on a "trial basis." The relocation arrangement was reduced to writing in a document entitled "agreement for temporary living arrangements," dated August 28, 2002.

In this agreement, Benito authorized the Coateses to enroll the children in school and obtain medical treatment. The agreement stated in part as follows:

"This living arrangement is expected to last through May 2003, but may possibly be extended by mutual agreement of the parties. Therefore, I am providing my indefinite authorization for school enrollment and medical treatment for as long as the children are living in Texas. However, if the children make a request, after adequate deliberation, to return to live with me, the Coates[es] shall consult with me and return the children, if I so request. Nothing in this [a]greement shall affect my rights as a guardian, and the Coates[es] agree not to take any action, directly or indirectly, that would adversely affect those rights."

On August 28, 2003, both Benito and Karen signed the agreement. On August 29, 2002, K.E.S. and J.M.S. moved in with the Coates family in Texas.

At the January 2003 hearing, Amy testified that she learned of the plan to relocate the children days before their scheduled departure. On August 22, 2002, Amy filed a petition for temporary restraining order and preliminary injunction, seeking to prevent the children from moving to Texas. On August 30, 2002, she filed a motion to terminate Benito's guardianship, seeking to regain custody of the children. In Amy's amended petition to terminate guardianship, filed September 30, 2002, she stated that a substantial change in circumstances had occurred since the original entry of guardianship, i.e., Benito's transfer of physical custody to the Coateses and improvements in her lifestyle, and it was therefore in the children's best interests that they reside with her. Amy also petitioned to receive visitation with the children in the interim.

On October 29, 2002, Benito responded with a motion to dismiss Amy's petition to terminate guardianship. He also moved to have the Coateses added as parties to the litigation, stating that a complete determination of the issues could not be made without their presence as parties. The Coateses also filed a petition to intervene, requesting to be named successor coguardians of the children. The court appointed a GAL to represent the children's interests.

On November 21, 2002, the trial court held a hearing on the parties' pretrial motions. Amy testified in support of her petition for visitation. The Coateses called Joan Schneider, Amy's mother, as a witness in opposition to the petition for visitation. In a written order filed November 25, 2002, the court found that there had been very little contact between Amy and the children since their placement with Christine and Benito. The order acknowledged Amy's testimony that her life had improved since the children were placed with Christine and Benito and that she was self-employed and under the care of a psychiatrist. The court further...