In re Marriage of Burgess

• Decision Date: 17 February 2000
• Docket Number: No. 86974.,86974.
• Parties: In re MARRIAGE OF BURGESS (Donald J. Burgess, Appellant, v. Sharron M. Burgess, Appellee).
• Court: Illinois Supreme Court

725 N.E.2d 1266

189 Ill.2d 270

244 Ill.Dec. 379

In re MARRIAGE OF BURGESS (Donald J. Burgess, Appellant, v. Sharron M. Burgess, Appellee).

No. 86974.

Supreme Court of Illinois.

February 17, 2000.

A. Marcy Newman, Law Offices of A. Marcy Newman, Susan Lorraine Kennedy, Chicago, for Donald J. Burgess.

Shannon M. Cobe, Phillip J. Mohr, Chicago Volunteer Legal Services, Chicago, for Sharron M. Burgess.

Justice McMORROW delivered the opinion of the court:

The issue presented in this case is whether the plenary guardian of a disabled adult has standing to proceed with a dissolution of marriage action filed by the ward prior to the adjudication of the ward's disability. We hold that a plenary guardian may continue a dissolution action on behalf of a ward in these circumstances.

BACKGROUND

The relevant facts in this case are undisputed. Donald Burgess and Sharron Burgess were married in 1978. In April 1996, Donald filed a petition for dissolution of their marriage. In addition, he filed a petition for an emergency order of protection against Sharron, which the circuit court granted.

In May 1997, Donald's sister, Virginia Cronk (Cronk), filed a petition for appointment of guardian for a disabled person, in which she alleged that Donald was incapable of making or communicating decisions regarding the care of his person and that he was unable to manage his financial affairs. Cronk requested that the circuit court adjudge Donald a disabled person and that she be appointed guardian of his person and estate. In June 1997, the circuit court appointed Cronk guardian of Donald's person and estate.

In July 1997, Sharron filed a motion to dismiss Donald's dissolution action on the ground that Cronk had no standing to continue this action on behalf of Donald. The circuit court denied her motion but, pursuant to Sharron's request, certified the following question for review by the appellate court under Supreme Court Rule 308(a) (155 Ill.2d R. 308(a)): "Can a disabled adult's plenary guardian (a guardian of both the individual's estate and person) continue a dissolution of marriage action originally filed by the disabled adult prior to the filing of a petition for guardianship and prior to a finding of disability?" 302 Ill.App.3d 807, 808, 236 Ill.Dec. 280, 707 N.E.2d 125.

The appellate court answered the certified question in the negative. 302 Ill. App.3d at 812, 236 Ill.Dec. 280, 707 N.E.2d 125. The appellate court found that its holding was mandated by this court's decision in In re Marriage of Drews, 115 Ill.2d 201, 104 Ill.Dec. 782, 503 N.E.2d 339 (1986). According to the appellate court, Drews held that, absent a specific statute authorizing a guardian to initiate or maintain a dissolution of marriage proceeding for a ward, a guardian is without standing to do so. The appellate court found no such statutory authority and, therefore, concluded that Cronk was without standing to prosecute Donald's dissolution action. We granted Donald's petition for leave to appeal. 177 Ill.2d R. 315.

ANALYSIS

Section 11a-18 of the Probate Act of 1975 (755 ILCS 5/11a-18 (West 1996)) sets forth the powers of a guardian of the estate. The powers of a guardian of the person are contained in section 11a-17 of the Probate Act (755 ILCS 5/11a-17 (West 1996)), which describes the guardian's authority to make personal decisions on behalf of a ward as follows:

"To the extent ordered by the court and under the direction of the court, the guardian of the person shall have custody of the ward and the ward's minor and adult dependent children; shall procure for them and shall make provision for their support, care, comfort, health, education and maintenance, and professional services as are appropriate * * *. The guardian shall assist the ward in the development of maximum self-reliance and independence." 755 ILCS 5/11a-17(a) (West 1996).

Donald argues that the appellate court erred in holding that a guardian has no standing to continue a ward's action for dissolution of marriage because the authority to do so is implicit in the language of section 11a-17. Sharron responds that, under this court's decision in Drews, a guardian may not initiate or continue a ward's dissolution proceeding unless that power is specifically enumerated in a statute. Sharron asserts that, because neither section 11a-17 nor any other statute expressly authorizes a guardian to continue a dissolution action previously filed by a ward, the appellate court was correct in denying Cronk standing to pursue Donald's dissolution action.

Therefore, our initial inquiry in this case is whether an express grant of statutory authority is necessary for a guardian to continue a ward's dissolution action. In other cases involving guardians' authority to make personal decisions on behalf of a ward, Illinois courts have held that the guardians may make such decisions under section 11a-17 even though the power to do so is not specifically enunciated. For example, courts have held that guardians may decide on behalf of a ward to withdraw artificial nutrition and hydration (see In re Estate of Longeway, 133 Ill.2d 33, 45-46, 139 Ill.Dec. 780, 549 N.E.2d 292 (1989); In re Estate of Greenspan, 137 Ill.2d 1, 16, 146 Ill.Dec. 860, 558 N.E.2d 1194 (1990)), may consent to an adult ward's adoption (In re Adoption of Savory, 102 Ill.App.3d 276, 277-78, 58 Ill.Dec. 359, 430 N.E.2d 301 (1981)), and may consent to an abortion on behalf of a disabled ward (In re Estate of D.W., 134 Ill.App.3d 788, 791, 89 Ill.Dec. 804, 481 N.E.2d 355 (1985)).

In Drews, however, this court decided that, with respect to the decision to initiate dissolution of marriage proceedings, a guardian must have specific statutory authority. The ward's mother in Drews was named guardian of her son's person and estate after her son became disabled as the result of a severe head injury. Following her appointment as guardian, the mother filed a dissolution of marriage action on her son's behalf. The son's wife filed a motion to dismiss the action on the basis that the mother did not have standing to bring the action. Drews, 115 Ill.2d at 202-03, 104 Ill.Dec. 782, 503 N.E.2d 339.

In determining whether the mother had standing to initiate a proceeding for dissolution of her son's marriage, the Drews court examined case law from other jurisdictions. The court found that a majority of jurisdictions which had considered the issue had held that, "absent statutory authorization, a guardian cannot maintain an action, on behalf of a ward, for the dissolution of a ward's marriage." Drews,115 Ill.2d at 203,104 Ill.Dec. 782,503 N.E.2d 339. This court observed that, in previous cases involving different issues, it had recited this majority rule with approval. Drews,115 Ill.2d at 204,104 Ill.Dec. 782,503 N.E.2d 339, citing Pyott v. Pyott, 191 Ill. 280, 288, 61 N.E. 88 (1901) (guardian seeking annulment of a ward's marriage); Iago v. Iago, 168 Ill. 339, 341-42, 48 N.E. 30 (1897) (guardian defending dissolution of marriage proceedings). The court concluded that Illinois follows the majority rule that, "absent statutory authorization, a guardian cannot institute an action, on behalf of a ward, for the dissolution of the ward's marriage." Drews,115 Ill.2d at 205,104 Ill.Dec. 782,503 N.E.2d 339.

The Drews court then examined sections 11a-17 and 11a-18 of the Probate Act to determine whether there is statutory authority for a guardian to bring a dissolution action. The court found no such authority in section 11a-18 of the Probate Act because this provision grants guardians standing to represent a ward only with respect to legal proceedings concerning the ward's estate. Likewise, there is nothing in section 11a-17 that "grants the guardian standing to maintain or defend any legal proceeding." (Emphasis in original.) Drews, 115 Ill.2d at 206, 104 Ill.Dec. 782, 503 N.E.2d 339. This court then concluded in Drews that, given the absence of statutory authority, the mother lacked standing to "maintain an action for the dissolution of her ward's marriage." Drews, 115 Ill.2d at 207, 104 Ill.Dec. 782, 503 N.E.2d 339.

Although the issue in the instant case may be similar to that in Drews, we find that the strict rule adopted in Drews, requiring express statutory authority for a guardian to act, should not be applied in this case. Donald correctly argues that Drews is factually distinguishable from his case. In addition, the policy reasons underlying the Drews holding do not support mandating specific statutory authority for a guardian to continue a dissolution proceeding, rather than initiate a dissolution proceeding on behalf of a ward.

The issue presented in the case currently before us was not decided in Drews. Whereas Drews involved a guardian's power to initiate dissolution of marriage proceedings on behalf of a ward, Donald's case concerns a guardian's authority to continue a ward's dissolution of marriage action. Based on references in Drews to "maintaining" a dissolution action, Sharron and the appellate court interpret Drews as holding that a guardian may not institute or continue a dissolution action without express statutory authority. To "maintain" a legal action may mean either "to commence" or "to continue" the action. See Black's Law Dictionary 953 (6th ed.1990); Amman Food & Liquor, Inc. v. Heritage Insurance Co., 65 Ill.App.3d 140, 146, 22 Ill.Dec. 242, 382 N.E.2d 562 (1978). In Drews, this court used the words "initiate" and "maintain" interchangeably. In the factual context of Drews, however, it is clear that the holding in that case is limited to a guardian's authority to commence a dissolution action on behalf of a ward.

The factual differences between Drews and the instant case are important because the policy reasons underlying the Drews holding are particular to the facts in that case and are inapposite in the circumstances presented by the instant case. In Drews, this court adopted the strict rule, followed by a majority of...