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In re Guardianship of Jordan C.-M.
State: Illinois
Court: 4th District Appellate
Docket No: 4-04-0180 Rel
Case Date: 08/11/2004

 

NO. 4-04-0180

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


In re: the Guardianship of JORDAN M.
C.-M., a Minor,
CATHERINE MARSH,
                        Petitioner-Appellant,
                        v.
IRENE CULLERS,
                        Respondent-Appellee.
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Appeal from
Circuit Court of
Sangamon County
No. 00P637

Honorable
Dennis L. Schwartz,
Judge Presiding.


JUSTICE TURNER delivered the opinion of the court:

Petitioner, Catherine Marsh, appeals from the trialcourt's denial of her motion to vacate guardianship and to dismiss aJanuary 1, 2002, order that she contends granted respondent, IreneCullers, Marsh's adoptive mother, custody over the minor child,Jordan M. C.-M. Marsh argues (1) the court erred as a matter of lawin denying her motion to dismiss because the order was enteredwithout proper pleading and notice to her; (2) Cullers lacked standing to seek custody of Jordan; (3) the court erred as a matter of lawby stating that Marsh bears the burden of proving her fitness; and(4) the court erred in determining that Marsh's fitness and the bestinterests of the child would be decided simultaneously. We affirm.

I. BACKGROUND

On March 15, 2000, Marsh gave birth to Jordan. At thetime of Jordan's birth, he and Marsh resided with Cullers. Sometimelater, Marsh and Jordan moved in with Mark Allen Nelson, Jordan'sputative father.

On September 28, 2000, Cullers filed a petition forguardianship of Jordan. Shortly after filing this petition, Cullersfiled a petition for temporary guardianship over Marsh. The date ofthis petition is not available in the record. Marsh and Jordan thenmoved back in with Cullers. Marsh consented to the guardianships. On November 15, 2000, the trial court entered two guardianshiporders. The first was an agreed order appointing Cullers as temporary disabled adult guardian for the estate and person of Marsh forreason of her manic-depressive disorder. The second order (guardianship order) appointed Cullers as guardian over the estate and personof Jordan. The letters of the office also filed that day stated that"[Cullers] [had] been appointed plenary guardian of the estate andperson of [Jordan], a minor, and [was] authorized to have under thedirection of the court *** the custody of the ward, and to do allacts required of her by law."

On November 30, 2000, Nelson filed a petition to revokeCullers' guardianship over Jordan. On January 25, 2001, the trialcourt entered an order allowing Cullers to voluntarily withdraw herpetition for temporary guardianship over Marsh and revoked theguardianship. The court issued a second order in Jordan's case thatdenied Nelson's petition to revoke Cullers' guardianship over Jordan,revoked Cullers' temporary guardianship over Marsh, and grantedNelson supervised visitation with Jordan upon proof of paternity. Marsh and Jordan continued to reside with Cullers.

On February 2, 2001, Nelson filed a second petition torevoke guardianship. On March 7, 2001, Nelson failed to appear atthe hearing on the petition and the trial court denied the petitionto revoke.

On January 22, 2002, the trial court amended the guardianship order (amended order) and added the language that Cullers "shallbe recognized as the custodial caregiver of the minor." No motionwas filed seeking custody, and Marsh received neither notice seekingthe entry of the order nor proof of service showing that the orderwas served on her. Sometime thereafter, Cullers and her husbandseparated. Marsh continued to live with her father, Cullers' husband, while Cullers moved with Jordan to another residence.

On March 1, 2002, Marsh filed a petition to revoke guardianship. On May 23, 2002, the court appointed Allen Oehlert guardianad litem for Jordan. On November 6, 2003, Marsh filed a motion todismiss pursuant to sections 2-619(a)(1) and (a)(9) of the Code ofCivil Procedure (Code) (735 ILCS 5/2-619(a)(1), (a)(9) (West 2002))to vacate Cullers' guardianship and the amended order. On January28, 2004, the trial court denied Marsh's motion. During the hearing,the trial judge stated that Marsh bears the burden of proof inproceedings relating to Jordan's custody, including her own fitness. To facilitate this appeal, Marsh then withdrew her petition to revokeguardianship. This appeal followed.

II. ANALYSIS

Initially, we grant Marsh's motion to supplement therecord on review with the November 15, 2000, order granting Cullerstemporary guardianship over the estate and person of Marsh.

Marsh argues that the January 2002 amended order grantedCullers custody of Jordan and that it was obtained without a petitionseeking to modify the guardianship being filed, without writtenconsent or stipulation, and without notice to her. To aid in ourreview of this case, we must first determine when and if Cullers wasgranted custody of Jordan.

A. Guardianship and Custody

On November 15, 2000, Cullers was appointed guardian ofJordan's estate and person. The Probate Act of 1975 (Probate Act)(755 ILCS 5/1-1 through 5/30-3 (West 1998)) provides that a guardianof the estate "shall have the care, management[,] and investment ofthe estate" (755 ILCS 5/11-13(b) (West 1998)), while "[t]he guardianof the person shall have the custody, nurture[,] and tuition andshall provide education of the ward" (emphasis added) (755 ILCS 5/11-13(a) (West 1998)). Thus, in 2000, when Cullers was appointedJordan's guardian, she was also granted custody of Jordan.

In her brief, Marsh admits that she agreed to the 2000guardianship appointment, although she asserts it was only for atemporary basis. The record before this court does not support thisclaim. On November 15, 2000, the trial court entered two guardianship orders, a temporary guardianship order for Marsh and a permanentguardianship order for Jordan. The difference in the two orderssuggests Marsh was at least aware of the difference between a temporary and permanent guardianship order. Additionally, the record doesnot contain the transcripts from the guardianship hearing. Without acomplete record, we presume the court's permanent guardianship orderwas supported by a sufficient factual basis. See Foutch v. O'Bryant,99 Ill. 2d 389, 392, 459 N.E.2d 958, 959 (1984) ("Any doubts whichmay arise from the incompleteness of the record will be resolvedagainst the appellant").

Contrary to Marsh's assertion, the amended order did notalter Cullers' role as guardian or grant her additional rights. Theamended order simply added the language "shall be recognized as thecustodial caregiver of the minor." The statement was a clarificationof rights already granted. While Marsh states she never voluntarilyrelinquished custody of Jordan to Cullers, she ultimately did whenshe agreed to Cullers' 2000 guardianship appointment. Under theProbate Act, Cullers was granted custody of Jordan when she wasinitially appointed guardian of his person.

B. Motion To Dismiss

In her motion to dismiss, Marsh asked the trial court tovacate the amended order and vacate the guardianship of Jordanpursuant to sections 2-619(a)(1) and (a)(9) of the Code of CivilProcedure for lack of jurisdiction and standing.

A section 2-619 motion to dismiss must be filed "withinthe time for pleading." 735 ILCS 5/2-619 (West 2002). No pleadingsrelevant to this motion were pending before the court when the motionwas filed. In fact, the guardianship order was filed in 2000, threeyears before Marsh filed her motion; the amended order was filed inJanuary 2002, nearly two years earlier. The clear language of thestatute, along with Illinois case law, makes clear that a section 2-619 motion is only appropriate to attack pleadings, not an order. 735 ILCS 5/2-619 (West 2002); Borowiec v. Gateway 2000, Inc., 209Ill. 2d. 376, 382, 808 N.E.2d 957, 961 (2004) (a section 2-619 motionadmits the legal sufficiency of the plaintiff's claim but assertsdefects or defenses outside the pleading to defeat the claim); Millerv. Highway Commissioner of North Otter Township Road District, 344Ill. App. 3d 1157, 1164, 801 N.E.2d 599, 605 (2003) ("[s]ection 2-619motions to dismiss provide a means for disposing of issues of law oreasily proved issues of fact"). Marsh points us to no contraryauthority.

Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2002))does, however, permit a party to seek relief from a final judgmentmore than 30 days after judgment has been entered. Sarkissian v.Chicago Board of Education, 201 Ill. 2d 95, 101, 776 N.E.2d 195, 200(2002). Because the character of the motion, not the label, iscontrolling for purposes of review, we will treat Marsh's petition asa section 2-1401 motion. See Sarkissian, 201 Ill. 2d at 102-03, 776N.E.2d at 200-01 (the court treated a motion to vacate a defaultjudgment as void on the grounds that service of process was defectiveas a section 2-1401 motion).

A section 2-1401 petition must be filed within two yearsof the challenged order unless the party seeking relief makes a clearshowing that it was under a legal disability or duress or the groundsfor relief were fraudulently concealed. 735 ILCS 5/2-1401(c) (West2002); People v. Pinkonsly, 207 Ill. 2d 555, 562, 802 N.E.2d 236, 241(2003). The moving party must also allege a meritorious defense orclaim to the original action and show due diligence in presenting theclaim to the trial court in the original action. Sarkissian, 201Ill. 2d at 103, 776 N.E.2d at 201.

Marsh filed the motion to dismiss on November 6, 2003,more than 30 days, but less than 2 years after the amended order wasentered. She alleges both her lack of notice of the amended orderand Cullers' lack of standing to seek custody support the motion.

1. Standing

Marsh's argument that Cullers did not have standing lacksmerit. When Marsh consented to the guardianship order, she waivedany right to challenge Cullers' standing. Marsh cannot consent tothe appointment of a guardian over her minor child and then laterargue the appointed party lacked standing.

Further, Marsh failed to raise any argument of standing inthe trial court until more than three years after Cullers was appointed guardian and has thus forfeited the issue on review. See Inre A.W.J., 197 Ill. 2d 492, 496, 758 N.E.2d 800, 803 (2001) (lack ofstanding to file a custody petition under section 601(b) of theIllinois Marriage and Dissolution of Marriage Act (Dissolution Act)(750 ILCS 5/601(b) (West 1998)) is an affirmative defense that isforfeited if not pled); In re Person & Estate of Newsome, 173 Ill.App. 3d 376, 379, 527 N.E.2d 524, 525 (1988) ("the standing requirement of the [Dissolution] Act applies equally to the guardianshipproceedings of the Probate Act").

2. Notice

A review of the record supports March's contention thatthe guardianship order was amended without a written petition toamend the order or proof of service. However, the language of theamendment does not affect either Marsh's or Cullers' custody rightsas to Jordan; it merely clarifies what rights were already granted. As such, we find any error in failing to give Marsh notice of theamended order was harmless.

C. Petition To Revoke Guardianship

Marsh's other arguments concern who carries the burden ofproof and what factors are relevant in a petition to revoke guardianship. These arguments are not pertinent to Marsh's appeal from thetrial court's denial of her motion to dismiss. Further, Marshwithdrew her petition to revoke guardianship to facilitate thisappeal; thus, the arguments are moot. Nonetheless, we recognize thatMarsh has the right to petition to revoke guardianship and may wishto do so in the future, thereby raising the issues concerning theburdens and proof required. Although appellate courts generally lackjurisdiction to render advisory opinions, one exception to themootness doctrine is the public-interest exception. The criteria forthis exception are (1) the public nature of the issues presented, (2)the desirability of an authoritative determination for the purpose ofguiding public officials, and (3) the likelihood that the questionwill recur. In re Mark W., ___ Ill. App. 3d ___, ___, 811 N.E.2d767, ___ (2004). Here, we find all three criteria are met and thuspoint the parties to this court's recent opinion, In re Estate ofK.E.S., 347 Ill. App. 3d 452, 461-62, 807 N.E.2d 681, 688-89 (2004).

"The Probate Act does not address thetermination of a guardian prior to the minorreaching the age of majority. [Citation.] Theseminal case dealing with the issue of childcustody between a natural parent and third person, In re Custody of Townsend, 86 Ill. 2d 502,508, 427 N.E.2d 1231, 1234 (1981), stated thatthere is 'an accepted presumption that theright or interest of a natural parent in thecare, custody[,] and control of a child is superior to the claim of a third person.' TheTownsend court went on to state that this presumption, also known as the superior-rightsdoctrine, 'is not absolute and serves only asone of several factors used by courts in resolving the ultimately controlling question ofwhere the best interests of the child lie.' Townsend, 86 Ill. 2d at 508, 427 N.E.2d at1234.

A third party seeking to obtain or retaincustody of a child as against the natural parent bears the initial burden. To satisfy thisburden, the third party must 'demonstrate goodcause or reason to overcome' the superior-rights doctrine and also show that it is in thechild's best interest that the third party beawarded custody. Townsend, 86 Ill. 2d at 510-11, 427 N.E.2d at 1235-36.

This court, in [In re Estate of Wadman,110 Ill. App. 3d 302, 442 N.E.2d 333 (1982)],concluded that in addition to the requirementsin Townsend, the natural parent must show achange in circumstances. Wadman, 110 Ill. App.3d at 305, 442 N.E.2d at 335. Otherwise, theWadman court reasoned, the court would merelybe ruling on the exact issue it previouslydecided in awarding guardianship. Wadman, 110Ill. App. 3d at 305, 442 N.E.2d at 335.

Absent statutory standards for terminationof guardianship, the Townsend-Wadman standardscontrol and govern a natural parent's attemptto terminate a guardianship established underthe Probate Act. The court in [In re Estate ofWebb, 286 Ill. App. 3d 99, 101, 675 N.E.2d 192,194 (1996)], clarified this standard, statingas follows:

'[The natural parent] had to showsome change in circumstances, orotherwise she could bring frequentpetitions to terminate at any time,but first [the guardian] had theburden of proof to overcome thesuperior-rights doctrine that aparent has a superior right tocustody of her minor children. Further, [the guardian] had to showthat it was in the children's bestinterests that she retain theguardianship.'"

We interpret K.E.S. to mean that in the circumstances ofthis case, where Cullers was granted plenary guardianship over theperson and the estate of Jordan, with the consent of Marsh, and hasmaintained consistent care, custody, and control of Jordan, she hassufficiently shown good cause to rebut the superior-rights doctrine. Thus, to terminate Cullers' guardianship, Marsh has the burden toshow a change in circumstances, and then the burden shifts to Cullersto prove it is in Jordan's best interest that she retainguardianship.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

KNECHT, P.J., and McCULLOUGH, J., concur.

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