In re Estate of Crockett, No. 5-98-0787

5th District, 12 April 2000

PRESIDING JUSTICE GOLDENHERSH delivered the opinion of the court:

Can a third party challenge the validity of a marriage after the death of one of the parties to the marriage? Petitioners,Natasha and David Crockett, appeal the trial court's decision to dismiss their claim against respondent, Laverne Crockett,for failure to state a cause of action. Petitioners raise two issues on appeal: (1) whether their petition to vacate the orderappointing a personal representative, to revoke letters of administration issued pursuant thereto, to terminate independentadministration, to appoint a successor administrator, and to amend the declaration of heirship stated a cause of action for theremoval of respondent as personal representative and for the exclusion of respondent as an heir, because she was not thedecedent's wife, and (2) whether petitioners should have been granted leave to allege a constructive-trust theory. A timelynotice of appeal was filed on November 28, 1998.

I. FACTS

Decedent died on April 30, 1997. Natasha Crockett and David Crockett, children from decedent's previous marriage toPeggy Crockett (dissolution of marriage in 1991), survived him. His wife, Laverne Crockett, survived him as his widow.This appeal concerns the validity of decedent's marriage to Laverne.

Decedent and Laverne were married on April 26, 1997. At the time, decedent suffered from an inoperable malignant braintumor. The county clerk's office had issued decedent and Laverne a marriage license; however, decedent's physicalcondition prevented him from signing the application in the presence of either the county clerk or one of his deputies.Decedent never appeared before the county clerk. Both an appearance and a signature in the presence of the county clerk arerequired by the Illinois Marriage and Dissolution of Marriage Act (hereinafter the Dissolution Act). 750 ILCS 5/203 (West1996). At the alleged ceremony, decedent did not respond because of his brain tumor, and a third party was used toacknowledge the marriage vows. Decedent died four days after the alleged ceremony.

On July 29, 1997, Laverne filed a petition for letters of administration of decedent's estate. The petition alleged her status asdecedent's wife and requested she be issued letters of administration. The trial court entered an order declaring Laverne,Natasha, and David as decedent's heirs at law. On January 21, 1998, Natasha and David filed a petition requesting the court(1) to vacate the order appointing personal representative, (2) to revoke the letters of administration issued pursuant thereto,(3) to terminate independent administration, (4) to appoint a successor administrator, and (5) to amend the declaration ofheirship. The petition specifically sought (1) to vacate the July 29, 1997, order appointing a personal representative, (2) torevoke the letters of administration entered pursuant to the July 29, 1997, order, (3) to appoint Natasha Crockett asadministrator of the estate, and (4) to find that, at his death, decedent left Natasha and David Crockett as his only heirs atlaw. Petitioners contend the marriage never took place because decedent never consented at the ceremony and, therefore,never complied with the formal requirements of solemnization under the Dissolution Act (750 ILCS 5/209 (West 1996)).

Both parties submitted memoranda in support of their position that the petition did or did not state a cause of action.Respondent argued that the petition did not state a cause of action because the requirements to attack the validity of amarriage were not fulfilled (see 750 ILCS 5/301 (West 1996)). In response, petitioners requested leave to amend theirpetition to allege a constructive-trust theory. On September 29, 1998, the trial court entered an order striking the petitionwith prejudice, to the extent it sought to remove Laverne as the representative on the ground that she was not his spouse andbecause petitioners failed to comply with the requirements for declaring a marriage invalid. According to Part III of theDissolution Act, parties have standing to challenge the validity of a marriage only for lack of capacity, fraud, or duress, andthey are barred from filing suit by a 90-day time limitation or by the death of either party to the alleged marriage. 750 ILCS5/302 (West 1996). The court held that since decedent died before petitioners instituted the challenge, the case is moot. OnOctober 28, 1998, petitioners filed a motion to reconsider, modify, or vacate the September 29, 1998, order. The trial courtdenied that motion and all remaining motions of petitioners, including their request to amend the petition to allege aconstructive-trust theory. Petitioners filed a timely notice of appeal on November 28, 1998.

II. ANALYSIS

Marriage is a civil contract with three interested parties: the husband, the wife, and the State. See Jambrone v. David, 16 Ill.2d 32, 35, 156 N.E.2d 569, 571 (1959); Hewitt v. Hewitt, 77 Ill. 2d 49, 63, 394 N.E.2d 1204, 1210 (1979). In order tolegally marry in Illinois, the husband and wife must fulfill the requirements and formalities set out in the Dissolution Act.The parties must be a man and a woman, of age, and freely consent to the contract. See 750 ILCS 5/201 (West 1996).Parties wishing to marry must obtain a license to marry from the county clerk's office of the county in which they intend tomarry. Both parties must be present before the county clerk or one of his deputies, and both must sign the licenseapplication. 750 ILCS 5/203 (West 1996). The next step is solemnization and registration. The parties must go before a dulyauthorized officiate and, after consenting to marry, must file the marriage certificate with the county clerk's office within 10days of the ceremony. 750 ILCS 5/209 (West 1996). If all of these requirements are met, the parties are legally married.

In order to challenge the validity of a marriage, the challenging parties must overcome the presumption of validity thatIllinois confers upon a marriage. See Baer v. De Berry, 31 Ill. App. 2d 86, 89, 175 N.E.2d 673, 674-75 (1961). Either partymay challenge the validity of a marriage by reason of duress, fraud, lack of consent, or lack of mental or physical capacity.750 ILCS 5/301 (West 1996). In the event one party is legally incompetent, that person's guardian may bring an actionunder section 301 of the Dissolution Act (750 ILCS 5/301 (West 1996)). However, an action to challenge the validity of amarriage must be brought within 90 days of the moving party becoming aware of the defect or before either party to themarriage dies. 750 ILCS 5/302 (West 1996). This is the essence of the case before us: Can decedent's heirs challenge afterhis death an obviously questionable marriage? Part III of the Dissolution Act says no; however, Did the marriage ceremonyin question fulfill the statutory requirements of the Dissolution Act warranting the presumption of validity? If it did not,then decedent's heirs have standing to challenge the fact of the marriage in any court proceeding even after decedent's death.See Barber v. People, 203 Ill. 543, 546-47, 68 N.E. 93, 94 (1903).

Petitioners argue that the marriage is void ab initio. During oral argument, petitioners' counsel alleged that there is avideotape of the ceremony that will demonstrate that decedent never consented to the marriage. They further contend thatdecedent was so infirm at the time of the ceremony that he was not consciously aware of his environment at the time ofsolemnization. He did not answer the officiate; another party kneeling next to him answered for him. He did not sign themarriage license; only respondent went to the county clerk's office to obtain the marriage license. Because of the conditionof decedent and the fact there is evidence he did not participate in the solemnization, petitioners allege the marriage neverexisted and can be attacked in any proceeding, even after the death of the party. See Barber, 203 Ill. at 546-47, 68 N.E. at94. Petitioners argue they are not limited to Part III of the Dissolution Act to challenge the validity of a marriage.

Respondent, on the other hand, argues that no matter how petitioners frame their argument, they are still challenging thevalidity of a marriage for lack of capacity. Respondent argues that the avenue the General Assembly enacted to pursue suchan attack is Part III of the Dissolution Act and that, consequently, they are barred from asserting a cause of action becauseof the death of the husband. See 750 ILCS 5/302 (West 1996). Respondent concedes that while this result may seem harshand/or unfair, the legislature has created the system and the courts cannot ignore the statutes. Respondent asserts that theonly way to address the potential loophole is for the General Assembly to close it.

The key issue in this case is whether the marriage is void or voidable. A voidable marriage is one that is potentially invalidbut, until it is judicially determined invalid, is completely valid for all purposes. See 52 Am. Jur. 2d Marriage