In re Guardianship of Huseman
| Decision Date | 07 June 2005 |
| Docket Number | No. 5-03-0563.,5-03-0563. |
| Citation | 831 N.E.2d 1147 |
| Parties | In re GUARDIANSHIP OF Bethany Tekoa HUSEMAN, an Alleged Disabled Adult (Leonard Huseman, Petitioner-Appellee, v. Sandra Barton, Respondent-Appellant (Bethany Tekoa Huseman, Appellee)). |
| Court | Illinois Supreme Court |
Darrell Dunham, Carbondale, for Appellant.
William C. Norton, Conn, Clendenin and Norton, Marissa, for Appellee, Leonard Huseman.
Donald Bigham, Johnson, Seibert & Bigham, Pinckneyville, for Appellee, Bethany Tekoa Huseman.
Respondent, Sandra Barton, mother of the alleged disabled adult, Bethany Tekoa Huseman (Tekoa), appeals from stipulated orders of the circuit court of Perry County regarding Tekoa. The orders appealed from were agreed to by respondent and her ex-husband, Leonard Huseman, petitioner. The orders, inter alia, found Tekoa disabled, ordered attorney fees to be paid from Tekoa's social security disability benefits, and mandated joint custody and visitation. On appeal, respondent raises the following issues: (1) whether the trial court erred in ordering attorney fees to be paid from Tekoa's social security disability benefits, (2) whether the orders complied with the provisions of the Illinois Probate Act of 1975(Act) (755 ILCS 5/1-1 et seq. (West 2000)), and (3) whether the trial court had jurisdiction to enter the order mandating joint custody. We affirm.
Before we address the issues raised by respondent, we note that petitioner filed a motion to dismiss the appeal on the basis of a lack of jurisdiction. In that motion, petitioner essentially argues that because the appeal is based upon the initial order in which Tekoa was found to be a disabled adult and guardianship was established and because respondent failed to appeal from that order, this court lacks jurisdiction. We have considered petitioner's argument but find the first order so intrinsic to the second order that we hereby deny petitioner's motion to dismiss the appeal and consider the appeal on its merits.
Tekoa, the alleged disabled adult, was born on September 27, 1983. Petitioner initiated the instant litigation on September 13, 2001, by filing a petition for an adjudication of disability and the appointment of a guardian. The petition requested that a guardian be appointed for the estate of Tekoa due to her diagnosis as a Down's syndrome child. The petition alleged that due to that condition and disability, Tekoa is not able to properly manage her person, estate, or financial affairs. A psychological report from September 1987 confirming that Tekoa has Down's syndrome was attached as "Exhibit A." Petitioner requested that an order be entered directing that Tekoa be properly evaluated by a qualified person or persons and that a report be prepared and filed at least 10 days prior to the hearing in accordance with the provisions found in section 11a-9 of the Act (755 ILCS 5/11a-9 (West 2000)).
On September 25, 2001, the trial court entered an order appointing attorney J. Mark Maclin to serve as Tekoa's guardian ad litem. Maclin served in that capacity throughout the proceedings below.
On October 11, 2001, respondent filed an answer and her own petition in which she asked the court to adjudge Tekoa a disabled adult and requested the appointment of a guardian for the person and estate of Tekoa. Respondent's petition specifically alleged that the appointment of a guardian was necessary because Tekoa "has been diagnosed as a Trisome 21 MMI child and person and because of this condition is not able to properly manage her personal and financial affairs." On November 28, 2001, petitioner filed a petition for temporary relief in which he alleged that respondent was refusing to allow him visitation or contact with Tekoa. He sought visitation throughout the pending proceedings.
On December 7, 2001, the trial court appointed an attorney to represent Tekoa pursuant to her written request. The trial court appointed Donald Bigham as Tekoa's attorney. Bigham has served as Tekoa's attorney throughout the proceedings.
On December 11, 2001, the trial court entered an agreed order. The order appointed Dr. Travis, Tekoa's family doctor, to perform the required evaluation and report pursuant to section 11a-9 of the Act. On April 11, 2002, Dr. Travis filed his report. He opined that Tekoa "is partially incapable of making personal [and] financial decisions." (Emphasis in original.) He concluded that the most appropriate living arrangement for Tekoa would be with respondent because she has a close relationship not only with respondent but also with other maternal relatives.
On July 1, 2002, guardian ad litem Maclin filed his report. He noted that there was an impasse between Tekoa's parents regarding who should be the guardian, but he also stated, "All parties do agree that a guardian of the person and a guardian of the estate is necessary." Maclin concluded that the guardian of the person should be respondent because Tekoa had lived with respondent her entire life. As for a guardian of the estate, Maclin concluded that either or both of the parents (as coguardians) would be acceptable so long as respondent would have the use of Tekoa's social security disability funds for Tekoa's benefit. Maclin noted his investigation showed that in the past respondent had deliberately thwarted petitioner's visitation. In order to ensure that petitioner receive visitation, Maclin suggested establishing a schedule of visitation similar to the joint-custody-of-a-minor arrangement and that respondent and petitioner "consult with each other regarding any additional schooling, healthcare needs, and other decisions fundamentally affecting Tekoa."
On July 12, 2002, the trial court conducted a final hearing on the petition for an adjudication of disability. Tekoa was present with her attorney, Donald Bigham. The guardian ad litem was present. Petitioner and respondent were both present, along with their respective attorneys. All the parties and counsel participated in settlement discussions. After the hearing, the trial judge entered an order consistent with an agreement reached by the parties at the hearing.
On July 16, 2002, the trial judge entered a 12-page order appointing a guardian of the person and estate of Tekoa. In the order, the trial judge noted he had interviewed Tekoa in chambers and consulted with her attorneys, after which all the parties, including the alleged disabled adult, "reached a stipulated settlement and agreement with regard to all issues in this cause." The order found Tekoa to be disabled and appointed respondent as the guardian of her person and petitioner as the guardian of her estate. It ordered petitioner to pay Tekoa's $500 social security benefits to respondent for the care and benefit of Tekoa, ordered Tekoa to reside with both petitioner and respondent on a rotating monthly basis with equal time given to both parents, set up a schedule for visitation, and ordered petitioner to maintain medical coverage for Tekoa, with petitioner and respondent to be equally responsible for any additional health benefits not covered by insurance. It further ordered the attorney fees of Donald Bigham and J. Mark Maclin to be paid from funds appropriated by the state or county for that purpose, but it noted that if those funds were not available, another hearing would be scheduled to determine how the fees should be paid.
On September 26, 2002, respondent, by and through a new attorney, filed a petition to terminate or modify the order appointing a guardian for the person and estate of Tekoa previously entered on July 16, 2002. The grounds set forth included that there was insufficient evidence to support a finding that Tekoa is disabled and that the court lacked authority to grant petitioner a change in custody and visitation. Petitioner moved to dismiss the petition to terminate on October 15, 2002, and asked that respondent be assessed attorney fees.
On December 27, 2002, the trial court found respondent in contempt for failing to permit visitation as outlined in the September 6, 2002, order. Respondent was sentenced to 60 days in jail and ordered to pay $1,770 in attorney fees. Respondent moved to stay the contempt order and filed a notice of appeal. On February 11, 2003, the trial court temporarily suspended the order of incarceration conditioned upon compliance with the order requiring visitation.
A hearing on respondent's motion to terminate or modify was held on May 22, 2003. During the hearing, respondent filed a voluntary motion to dismiss the petition to terminate or modify, which the trial court granted. The parties reached an agreement and stipulation during the hearing on May 22, 2003. As a part of the agreement, respondent's appeal in the contempt matter was dismissed by this court on June 25, 2003, on respondent's motion. On July 22, 2003, an order was entered that recites the additional agreement and stipulation among the parties reached during the May 22, 2003, hearing. The agreement included removing the reports of several medical professionals from the record. The parties also agreed to "participate in mediation in an attempt and effort to resolve any and all differences that exist between them" regarding the best interests of Tekoa. All the parties stipulated that because no state or county funds were available to pay attorney fees to Tekoa's attorney or her guardian ad litem, those fees would be paid at a rate of $200 per month until paid in full from the social security benefits received by petitioner as the guardian of the estate of Tekoa, with all the remaining monthly benefits to be paid to respondent for Tekoa's care. Respondent now appeals from the order of July 22, 2003.
The first issue we are asked to address is whether the trial court erred in ordering attorney fees to be paid from Tekoa's social security disability benefits. Respondent, relying on ...
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In re Burdge
...also Warga v. Warga , 2015 IL App (1st) 151182, ¶ 20, 399 Ill.Dec. 230, 46 N.E.3d 268 ; cf. In re Guardianship of Huseman , 358 Ill. App. 3d 299, 306, 294 Ill.Dec. 822, 831 N.E.2d 1147 (2005) (although it had no basis in statute, order involving dual custody, medical coverage, and visitatio......
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In re Marriage of Dobbs, 5-03-0644.
...would, however, be available to the parties pursuant to the Probate Act. See In re Guardianship of Huseman, No. 5-03-0563, 2005 WL 1404561, ___ Ill.App.3d ___, 294 Ill.Dec. 822, 831 N.E.2d 1147 (June 7, 2005). As previously discussed, the standards of the Marriage Act and the Probate Act ar......