Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinions in the civil cases In re the Estate of Powell, In re N.C., a Minor, and In re Marrigate of Turk.

In re the Estate of Powell

By Michael T. Reagan, Law Offices of Michael T. Reagan, Ottawa

In re Estate of Powell, 2014 IL 115997, holds that an attorney who brings a wrongful death action owes a legal duty to the decedent’s beneficiaries at the distribution of funds phase of that action.  The court rejected the contentions of the defendant attorneys in this legal malpractice case that an attorney engaged to prosecute a wrongful death action only owes a duty to the personal representative of the estate and not to the beneficiaries of the action.  The court also rejected a defense contention that the potential, unpled here, of a conflict among beneficiaries should negate the imposition of a duty to the beneficiaries.  The court stated it was making no determination as to the scope of duty when a conflict among the beneficiaries is specifically alleged.

The plaintiff in this case had been adjudicated to be a disabled adult prior to the events here.  The plaintiff’s father died as a result of alleged medical malpractice.  The plaintiff’s mother engaged the initial attorney in this case to prosecute the wrongful death case.  The mother was named as special administratrix of the decedent’s estate, and suit was filed.  A settlement of one aspect of the case was reached in the total amount of $15,000, which was distributed equally among the widow, this plaintiff, and his sister.  This plaintiff’s $5,000 share was paid to plaintiff’s mother on his behalf, with the proceeds placed in a joint account.

Thereafter, the initial attorney referred the case to a second firm, with both firms continuing  the action.  The case was ultimately settled, with this plaintiff and his mother each to receive $118,000.  This plaintiff’s share, by a check made payable to him and his mother, was placed in a joint account.  The plaintiff did not have a guardian of his estate appointed, nor did the settlement order provide that the amount distributable to him was to be administered by the probate court.

Sec. 2.1 of the Wrongful Death Act provides that proceeds in excess of $5,000 distributable to a person under legal disability are to be administered under the supervision of the probate division of the court. The supreme court opinion closely tracks the opinion of the First District, and affirms the appellate court in all aspects.  The fundamental premise of this case is that the personal representative is a nominal party, and that the action is to be prosecuted on behalf of the surviving spouse and next of kin, who are the true parties in interest.  The court concluded that an attorney’s duty runs to the next of kin because they are intended, rather than merely incidental, beneficiaries of the action.

In re N.C., a Minor

By Karen Kies DeGrand, Donohue Brown Mathewson & Smyth LLC 

In this case the Illinois Supreme Court wrestled with the issue of the State contesting the paternity of a man who had signed a voluntary acknowledgement that he was the father of the child of his girlfriend. The court answered “yes” to the first question: whether, under the circumstances, the State has standing to challenge paternity in a juvenile neglect proceeding. The opinion provides no clear answer to the second question: how the State can do it in compliance with the Parentage Act.

Concerned about the welfare of four-day-old N.C. based on allegations that the mother, Nichole G., had neglected her three other children and already had been adjudicated an unfit parent for them, and that Alfred C., the putative father, had an extensive record of violent criminal conduct, the Department of Children and Family Services took the baby into protective custody. The State investigated whether Alfred, who signed the acknowledgement the day of N.C.’s birth, was the child’s biological father. Based on genetic testing that calculated the likelihood of Alfred’s paternity as “0.00 %,”  the State moved for declaration of nonpaternity. Hearing that motion and the State’s petition alleging juvenile neglect, the circuit court ruled in favor of the State on both. The court discharged Alfred as a party to the neglect proceedings and, subsequently, determined that N.C. was a neglected minor.

After an appeal in which a divided appellate court determined that the State did not have standing to challenge Alfred’s paternity in the neglect proceedings, the supreme court reversed the appellate court on that threshold issue. Determining that the State has “a real interest in the outcome of the controversy,” and citing the State’s parens patriae power to protect minors under the Juvenile Court Act, 705 ILCS 405/1-2(1) (West 2012), the court found that the statute authorizes the State to raise parentage issues in a neglect proceeding to protect the interests of a minor – with one catch: the proceedings had to comply with the Parentage Act.

The supreme court then considered whether the State’s challenge complied with sections 6(d) or 7 of the Parentage Act, 750 ILCS 45 (West 2012), with respect to invalidating Alfred’s acknowledgement of paternity. In contrast to the liberal construction of the State’s enforcement role under the Juvenile Court Act, the court described the limited nature of a section 6(d) challenge and found that it could not be brought by the State. Similarly, the court found that section 7 of the statute did not authorize the State to initiate a proceeding to “disestablish” Alfred’s status as parent. Thus, the court concluded that the State’s challenge did not comply with the Parentage Act. The court observed that the child’s guardian ad litem had supported the State’s action and noted that, while the State did not, the guardian had standing to file a disestablishment action on remand, in a new hearing on the neglect petition that would include Nichole and Alfred.

Justice Theis, joined by Chief Justice Garman, specially concurred. Justice Theis found the majority’s rulings to be internally contradictory, in that the court found the State to have standing under the Juvenile Court Act, while determining that it had no standing under the Parentage Act.  

In re Marriage of Turk

By Alyssa M. Reiter, Williams, Montgomery & John Ltd.

In this case involving section 505 of the Illinois Marriage and Dissolution of Marriage Act, the Court held that a trial court may award child support to a noncustodial parent. The Court’s concern was protecting children’s rights to be supported by their parents in an amount commensurate with the parents’ income.

Several years after their divorce, the physical custody arrangements changed and Steven Turk became sole custodian of the couple’s two boys. Iris Turk had substantial visitation, including almost equal time with their son Jacob.

Steven petitioned to terminate his previous child support payments. But given his approximately $150,000-per-year salary compared to Iris’ earnings of less than $10,000 per year, the trial court ordered Steven to pay child support and made him solely responsible for uncovered medical and other health expenses.

The Supreme Court held that section 505 does not preclude imposition of child support on custodial parents. Nothing in the statute makes custody dispositive of the issue of support. The Court further explained that a parent who is technically noncustodial may have visitation rights placing the child in that parent’s care for substantial periods of time. The noncustodial parent could end up paying a significant portion of the child’s costs without regard to that parent’s financial resources and needs.

Justice Theis concurred, writing separately because she disagreed with the majority’s analysis as to how section 505 operates.