Mancine v., No. 1–11–1138.

CourtUnited States Appellate Court of Illinois
Writing for the CourtJustice PUCINSKI delivered the judgment of the court
Citation380 Ill.Dec. 879,9 N.E.3d 550
PartiesIn re MARRIAGE OF Miki Loveland MANCINE, Petitioner–Appellee, and Nicholas F. GANSNER, Respondent–Appellant.
Decision Date31 March 2014
Docket NumberNo. 1–11–1138.

9 N.E.3d 550
380 Ill.Dec.
879

In re MARRIAGE OF Miki Loveland MANCINE, Petitioner–Appellee,
and
Nicholas F. GANSNER, Respondent–Appellant.

No. 1–11–1138.

Appellate Court of Illinois,
First District, Third Division.

March 31, 2014.


[9 N.E.3d 554]


Andrew D. Eichner and Myra A. Foutris, both of Berger Schatz, of Chicago, for appellant.

Enrico J. Mirabelli and Amy L. Jonaitis, both of Beermann, Pritikin, Mirabelli & Swerdlove, LLP, of Chicago, for appellee.


OPINION

Justice PUCINSKI delivered the judgment of the court, with opinion.

¶ 1 In divorce proceedings below, the husband, respondent Nicholas Gansner, sought custody of a minor child, William Gansner. William had been adopted by only the mother, petitioner Miki Loveland Mancine. The child was not the biological child of either Miki or Nicholas. Nicholas knew at all times that filing a petition to adopt was necessary and was aware that he simply had to provide a form petition and include a copy of Miki's adoption order. The couple adopted another child, and Nicholas filed a petition for that child and became that other child's parent. Yet Nicholas never filed a petition to adopt or even began adoption proceedings for William. Miki then filed for divorce. Nicholas sought custody of William. The circuit court granted Miki's motion to dismiss on the grounds that Nicholas lacked standing. In our previous opinion, we affirmed the dismissal because: (1) Illinois had not recognized “equitable adoption” in child custody proceedings and a “contract to adopt” theory did not apply where there was no contract; (2) equitable estoppel did not apply to bar a finding that Nicholas was not a parent due to Miki's holding out of him as the parent, where the husband was aware at all times that William was not his biological child and that formal adoption was necessary; (3) Illinois also has not adopted the “equitable parent” doctrine in any context and Nicholas has no standing as a parent to seek custody under the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2010)), the Illinois Parentage Act (750 ILCS 40/1 et seq. (West 2010)), or the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2010)); (4) there was no basis to invoke the parens patriae power under the Juvenile Court Act of 1987 (705 ILCS 405/1–1 et seq. (West 2010)); and (5) Miki legally adopted the child as a single person and there is no requirement that the child must be adjudicated to have a father. In re Marriage of Mancine, 2012 IL App (1st) 111138, 358 Ill.Dec. 521, 965 N.E.2d 592.

¶ 2 After our opinion, the Illinois Supreme Court rendered a decision in DeHart v. DeHart, 2013 IL 114137, 369 Ill.Dec. 136, 986 N.E.2d 85, recognizing equitable adoption in the context of an adult seeking inheritance in a probate proceeding. After the decision in DeHart, we received a supervisory order from the Illinois Supreme Court directing us to vacate our prior opinion and instructing us to reconsider our decision in light of DeHart to determine if a different result was warranted. Mancine v. Gansner, No. 113978, 372 Ill.Dec. 462, 992 N.E.2d 1 (Ill. May 29, 2013) (supervisory order). We hereby vacate our prior opinion and substitute this opinion, determining that DeHart does not warrant a different result from our prior decision, because equitable adoption is a concept in probate to determine inheritance and should have no application in the context of statutory proceedings of adoption, divorce proceedings, or parentage, and also because the facts of this case are vastly different from DeHart and do not meet the adopted standards in DeHart to establish an equitable adoption. Our statutes concerning adoption, parentage, and divorce are clear concerning who is a parent, how a person may become a parent through adoption, and what a parent's

[9 N.E.3d 555]

rights are. Nicholas was well aware of the adoption requirements and chose not to pursue them. Further, Miki is the legal parent of William and to recognize Nicholas as having “equitably adopted” William would violate Miki's constitutional right to raise her children. To apply the concept of equitable adoption in the context of our statutory proceedings of adoption, parentage and divorce would undermine the entire family law structure enacted by our legislature and create uncertainty and protracted litigation.

¶ 3 BACKGROUND

¶ 4 The facts of this case remain the same as our prior opinion and we restate them: Miki and Nicholas began dating in the spring of 2008. At that time, Miki was separated from her then-husband, John Mancine. Miki had a one-year-old adopted daughter named Elizabeth and had begun the process of adopting a second child, William, and was matched with a birth mother. Miki and Nicholas decided they would marry in approximately June or July of 2008. Because Miki had already started the adoption process of William as a single parent before she met Nicholas, Miki and Nicholas were advised by the adoption agent to finish the process of Miki's adoption of William, and then for Nicholas to adopt William as a stepparent after the parties' marriage. At the time, Miki and Nicholas resided in Wisconsin, where unmarried couples cannot simultaneously adopt a child. See Wis. Stat. Ann. § 48.82 (West 2008).

¶ 5 William was born on August 5, 2008, and his birth certificate reflected the name “William Michael Gansner.” In early September 2008, the adoption agent visited Miki and Nicholas to update the home study completed in January 2008 because Nicholas had moved in with Miki and was co-parenting William. Miki's adoption of William was not yet finalized due to the six-month statutory waiting period. In the adoption agent's report of February 27, 2009, the agent noted that Miki named Nicholas as the sole guardian of William and any future child she has, and named her parents as alternate guardians. Nicholas took care of William, including diaper changes and feedings. On November 2, 2008, William was baptized. The church record for the baptism listed William's “parents” as Nicholas and Miki. Nicholas and Miki became formally engaged in December 2008.

¶ 6 Miki's adoption of William as a single adult was finalized in Wisconsin on March 4, 2009. The adoption papers identified William as “William Michael Gansner.” Nicholas and Miki got married in May 2009. It was both Nicholas's and Miki's intent that Nicholas formally adopt William as a stepparent after their wedding. Miki had contacted William's adoption agent before their wedding and arranged for her to visit them immediately following the wedding to perform a screening for Nicholas's adoption of William. In June 2009 the adoption agent performed the stepparent adoption screening of Nicholas. The agent's report of June 9, 2009, reflected that the adoption agency intended to support the granting of Nicholas's stepparent adoption petition. In Nicholas's affidavit in support of his pleadings, he attached an e-mail from the adoption agent to Nicholas dated August 6, 2010, informing Nicholas that he was free to file his stepparent adoption petition, and he averred that this is a true and correct copy of the e-mail.

¶ 7 At that time, Nicholas and Miki had already started the process of adopting yet another child, Henry, and were in the process of moving from Wisconsin to Chicago, Illinois, to be closer to Miki's parents. The parties completed their adoption of

[9 N.E.3d 556]

Henry, with both Miki and Nicholas as adoptive parents. Nicholas alleges that he was under the impression that he and Miki had to assemble a number of documents to accompany his adoption petition for William. Later, however, Nicholas learned that he simply had to provide a form petition and include a copy of the order of Miki's adoption of William. Nicholas alleges in his brief that “[a]s a result of all of these factors, the ministerial act of filing the stepparent adoption papers just never happened.” Nicholas averred in his affidavit that on August 6, 2009, Miki e-mailed him asking, “Have you made any progress toward adopting William? ? ? ? I would like you to take care of that ASAP,” and telling Nicholas to “call Carol Gapen from law center for children and families.” It is undisputed that Nicholas never filed a petition to adopt William.

¶ 8 Nicholas and Miki moved to Chicago with Elizabeth and William. Henry was born on September 16, 2009. Nicholas alleges that since he was out of work and Miki was traveling for her job, he was the primary caretaker of the three children. Nicholas is an attorney and eventually became employed in a full-time position as an assistant Attorney General for the State of Illinois. Nicholas maintains he continued to act as the three children's primary caretaker and took Elizabeth and William to day care and Henry to Miki's parents' house every morning. In the evenings, Miki's mother and a nanny would pick up the children from day care and bring them home to be with Nicholas. Nicholas was listed as the children's parent at their day care facility. According to Nicholas, Miki always held out William as Nicholas's child and held out herself, Nicholas, Elizabeth, William and Henry as “the Gansner family.” It is undisputed that, at this time, Nicholas still had not undertaken any action to adopt William.

¶ 9 Miki filed a petition for dissolution of marriage and served Nicholas with summons for dissolution of marriage on September 24, 2010. In Miki's petition, she alleged that she and Nicholas had only one child, Henry, and that Nicholas was a fit and proper person to share joint custody of Henry. On December 6, 2010, Nicholas filed his response to Miki's petition for dissolution of marriage and his counterpetition for dissolution of marriage. In both pleadings, Nicholas sought sole custody of both William and Henry. On December 16, 2010, Miki filed her motions to dismiss Nicholas's claim for sole custody of William in his response and counter-petition, pursuant to section 2–619(a)(9) of the...

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5 practice notes
  • James R.D. v. Maria Z. (In re Parentage Scarlett Z.-D.), No. 2–12–0266.
    • United States
    • United States Appellate Court of Illinois
    • May 22, 2014
    ...completed its reconsideration of its decision in Mancine in light of DeHart. In re Marriage of Mancine, 2014 IL App (1st) 111138–B, 380 Ill.Dec. 879, 9 N.E.3d 550. In its original opinion, the First District affirmed the trial court's section 2–619 dismissal of the husband's custody claim, ......
  • James R.D. v. Maria Z. (In re Parentage Scarlett Z.-D.), No. 117904.
    • United States
    • Supreme Court of Illinois
    • March 19, 2015
    ...(West 2012). These factors include the requirement of standing. See In re Marriage of Mancine, 2014 IL App (1st) 111138–B, ¶ 23, 380 Ill.Dec. 879, 9 N.E.3d 550 ; In re Parentage of Unborn Child Brumfield, 284 Ill.App.3d 950, 954, 220 Ill.Dec. 549, 673 N.E.2d 461 (1996). ¶ 37 Accordingly, in......
  • Phommaleuth v. Hernandez (In re Visitation of J.T.H.), No. 1–14–2384.
    • United States
    • United States Appellate Court of Illinois
    • September 28, 2015
    ...of statutory proceedings of adoption, divorce proceedings, or parentage.” In re Marriage of Mancine, 2014 IL App (1st) 111138–B, ¶ 2, 380 Ill.Dec. 879, 9 N.E.3d 550. Specifically, the Mancine court found that the equitable adoption doctrine did not apply to confer standing on the husband in......
  • Mathews v. Clark (In re Paternity A.B.), NO. 5-14-0581
    • United States
    • United States Appellate Court of Illinois
    • April 15, 2015
    ...of statutory proceedings of adoption, divorce proceedings, or parentage." In re Marriage of Mancine, 2014 IL App (1st) 111138-B, ¶ 2, 9 N.E.3d 550. Thus, we find petitioner's reliance on DeHart misplaced.¶ 16 In Koelle, the biological mother defendant deceived the nonparent plaintiff for ov......
  • Request a trial to view additional results
5 cases
  • James R.D. v. Maria Z. (In re Parentage Scarlett Z.-D.), No. 2–12–0266.
    • United States
    • United States Appellate Court of Illinois
    • May 22, 2014
    ...completed its reconsideration of its decision in Mancine in light of DeHart. In re Marriage of Mancine, 2014 IL App (1st) 111138–B, 380 Ill.Dec. 879, 9 N.E.3d 550. In its original opinion, the First District affirmed the trial court's section 2–619 dismissal of the husband's custody claim, ......
  • James R.D. v. Maria Z. (In re Parentage Scarlett Z.-D.), No. 117904.
    • United States
    • Supreme Court of Illinois
    • March 19, 2015
    ...(West 2012). These factors include the requirement of standing. See In re Marriage of Mancine, 2014 IL App (1st) 111138–B, ¶ 23, 380 Ill.Dec. 879, 9 N.E.3d 550 ; In re Parentage of Unborn Child Brumfield, 284 Ill.App.3d 950, 954, 220 Ill.Dec. 549, 673 N.E.2d 461 (1996). ¶ 37 Accordingly, in......
  • Phommaleuth v. Hernandez (In re Visitation of J.T.H.), No. 1–14–2384.
    • United States
    • United States Appellate Court of Illinois
    • September 28, 2015
    ...of statutory proceedings of adoption, divorce proceedings, or parentage.” In re Marriage of Mancine, 2014 IL App (1st) 111138–B, ¶ 2, 380 Ill.Dec. 879, 9 N.E.3d 550. Specifically, the Mancine court found that the equitable adoption doctrine did not apply to confer standing on the husband in......
  • Mathews v. Clark (In re Paternity A.B.), NO. 5-14-0581
    • United States
    • United States Appellate Court of Illinois
    • April 15, 2015
    ...of statutory proceedings of adoption, divorce proceedings, or parentage." In re Marriage of Mancine, 2014 IL App (1st) 111138-B, ¶ 2, 9 N.E.3d 550. Thus, we find petitioner's reliance on DeHart misplaced.¶ 16 In Koelle, the biological mother defendant deceived the nonparent plaintiff for ov......
  • Request a trial to view additional results

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