In re Estate of Walter

                                           No. 1-21-1600
                                 Opinion Filed: December 23, 2022
                                                                                      Sixth Division
 ______________________________________________________________________________

                                              IN THE
                               APPELLATE COURT OF ILLINOIS
                                         FIRST DISTRICT
 ______________________________________________________________________________
 In re ESTATE OF VERONICA WALTER,                              )   Appeal from the Circuit Court
                                                               )   of Cook County, Illinois
 Alleged Person With a Disability                              )
                                                               )   No. 

 (Beth McCormack,                                              )
                                                               )   The Honorable
        Petitioner-Appellee,                                   )   Jesse Outlaw,
                                                               )   Judge Presiding.
     v.                                                        )
 Veronica Walter,                                              )

        Respondent-Appellant).



        JUSTICE C.A. WALKER delivered the judgment of the court, with opinion.
        Presiding Justice Mikva and Justice Oden Johnson concurred in the judgment and
        opinion.

                                            OPINION


¶1     Petitioner, Beth McCormack, filed a petition for appointment of guardianship of

respondent Veronica Walter in the probate division of the circuit court (probate court). The probate

court adjudged Walter as a person with a disability and appointed R&R Guardianship Services as

Walter’s guardian ad litem for the limited purpose of resolving Walter’s marriage dissolution case.
No. 1-21-1600




On appeal, Walter raises several issues, including that the probate court lacked jurisdiction, made

erroneous evidentiary rulings, made disability adjudication and appointment of a guardian ad litem

findings that were against the manifest weight of the evidence, and failed to give Walter an

opportunity to nominate a guardian ad litem. For the following reasons, we affirm the circuit

court’s finding that respondent was “a person with a disability” under section 11a-2 of the Probate

Act of 1975 (Probate Act) (755 ILCS 5/11a-2 (West 2020)), and we remand to the probate division

of the circuit court so that a hearing may be held regarding respondent’s request to nominate her

brother as guardian ad litem.

¶2                                      I. BACKGROUND

¶3                              A. Marriage Dissolution Proceedings

¶4     In 2014, Joseph Tener filed a petition for dissolution of marriage from Walter. During the

next several years, Walter was represented by four different lawyers. In 2018, Walter requested to

proceed pro se in the dissolution proceeding. After growing concern that Walter did not have the

mental capacity to participate in the proceedings, the judge in the dissolution proceeding

(dissolution judge) ordered a medical examination to determine whether Walter was competent to

represent herself. Dr. Louis Kraus evaluated Walter and opined that she was delusional, extremely

paranoid, and severely disabled. After reviewing Dr. Kraus’s medical report, the dissolution judge

appointed McCormack as Walter’s guardian ad litem and ordered McCormack to file a petition for

the appointment of guardianship in probate court.

¶5                                    B. Probate Proceedings



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¶6                                          1. Pretrial

¶7     In 2019, McCormack filed a petition for appointment of guardian of a person with a

disability in the probate court. The court appointed Susan DeCostanza as Walter’s guardian

ad litem in the probate proceedings.

¶8     In August 2020, Walter filed a motion in limine to exclude the admission of Dr. Kraus’s

medical report. The court never ruled on the motion, and neither party requested a ruling.

McCormack filed an emergency motion for medical evaluation to obtain a report of physician. The

court granted the motion and permitted McCormack to coordinate the evaluation. McCormack

retained Dr. Geoffrey Shaw, who conducted an independent medical examination on Walter. After

the examination, Dr. Shaw created a report of his findings and conclusions and opined that Walter

was unable to make well-reasoned decisions in her best interest and needed a limited guardian

ad litem of her person and estate in the dissolution proceeding.

¶9     Walter hired Dr. Monica Argumedo to conduct a medical examination. After the

examination, Dr. Argumedo created a report of her findings and conclusions. She opined that

Walter was competent to manage her person and financial affairs without a guardian ad litem.

¶ 10   In December 2020, McCormack filed an amended petition for guardianship that alleged

Walter “is a person with a disability due to Delusional Disorder and because of that disability (a)

lacks sufficient understanding or capacity to make or communicate responsible decisions

concerning the care of the Respondent’s person; [and] (b) is unable to manage the Respondent’s

estate or financial affairs.” The amended petition included Dr. Shaw’s medical report.



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¶ 11   In January 2021, Walter filed a motion for summary judgment arguing that Dr. Shaw’s and

Dr. Argumedo’s conflicting medical opinions showed that McCormack could not prove by clear

and convincing evidence that Walter was a person with a disability. The circuit court denied the

motion arguing that the conflicting expert opinions created a genuine issue of material fact. Walter

also moved to dismiss the petition based on lack of jurisdiction because McCormack failed to serve

notice to six of Walter’s nine siblings. At the hearing on the motion, McCormack and DeCostanza

informed the court about their unsuccessful efforts to find and serve notice to Walker’s siblings.

McCormack asked Walter for her siblings’ contact information, and Walter informed her that she

did not have their information. McCormack was able to contact one sibling, Kenneth Walter

(Kenneth). Kenneth provided his address but refused to provide any additional contact information

for the other siblings. With the help of DeCostanza, McCormack learned that three of the siblings

worked for the same employer. DeCostanza called the employer, verified that the siblings worked

there and left a message. However, DeCostanza never received a return call. McCormack, with

leave of the court, posted three notices of the plenary petition for guardianship in the Chicago

Daily Law Bulletin, and McCormack was able to get the contact information for one other sibling,

Rita Walter (Rita).

¶ 12   In February 2021, McCormack filed a second amended petition for the purpose of

amending the notice form to include the names of Walter’s living siblings and the addresses of

Kenneth and Rita. The court determined that service via publication was sufficient notice.

¶ 13                                          2. Trial



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¶ 14   At trial, DeCostanza detailed the difficulties she faced in her efforts to contact Walter

because Walter did not answer DeCostanza’s phone calls. One day, DeCostanza went to Walter’s

home and found duct tape over the doorbell. DeCostanza knocked on the door and received no

response. She tried to put a note in the mail slot but found it sealed and left a note by the door.

About four months after the court appointed DeCostanza as guardian ad litem, and after Walter

hired an attorney for the probate court proceedings, DeCostanza interviewed Walter. After the

interview, DeCostanza, relying on Dr. Shaw’s medical opinion, recommended appointment of a

guardian with authority limited to facilitating the settlement of the marriage dissolution case.

¶ 15   McCormack testified that she met with Walter on several occasions. During those times,

Walter’s behavior was unpredictable. Walter was either kind to McCormack or yelled and accused

McCormack of lying. McCormack also had difficulty scheduling appointments with Walter. In

May 2019, Walter and Tener reached a proposed settlement agreement that was “very much in her

favor.” McCormack testified that she based her opinion about the desirability of the settlement on

the opinion of the attorney representing Walter in dissolution proceeding. Between May 2019 and

October 2019, Walter’s dissolution attorney urged her to accept the proposed settlement but she

refused. McCormack admitted she had “no independent recollection of the specifics” of whether

she discussed the written settlement offer with Walter. McCormack recommended the appointment

of a guardian with authority limited to facilitating the settlement of the dissolution case.

¶ 16   Walter testified that McCormack and her divorce attorney never showed her the proposed

divorce settlement. She knew she was married to Tener and sought a divorce but did not remember



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the date or year that she got married. Walter also did not remember how many attorneys she had

in the dissolution proceeding.

¶ 17       Tener testified that while Walter took care of her finances and daily needs, he assisted her

with grocery shopping, paying bills, and home maintenance. To the best of Tener’s knowledge,

Walter had not taken medication for five years. Walter distrusted people and refused to allow

guests in her home except for Tener. She complained about stomach pains and her eyesight but

refused to see a doctor. When asked if Walter would benefit from having a guardian, Tener stated,

“I am not sure. Maybe it would go a little smoother if she had a guardian. I think—At this point I

think she’s willing to come to an agreement, and I think we can get it done without a guardian

really.”

¶ 18       Dr. Shaw, a psychiatrist, testified that he interviewed Walter. Based on that interview and

the reports of Dr. Jansons, a psychologist who conducted a neuropsychological examination on

Walter, and Dr. Kraus, he concluded that Walter suffered from a delusional disorder that impaired

her executive functioning. Dr. Shaw identified two beliefs as the basis for his diagnosis. First,

Walter believed that she was not married under the catholic doctrine because she and Tener did

not have children. Second, Walter believed that Dr. Kraus intentionally set up his office “in a

manner to cause discomfort or unpleasantness to his patients.” Dr. Shaw also testified that Walter

displayed signs of grandiosity and concluded that Walter had a psychiatric condition. He explained

that Walter’s belief that her handwritten notes should be incorporated into a curriculum for




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physicians and law students exemplified a level of grandiosity because she thought her notes were

so important that they should be incorporated in an area where she lacked training or knowledge.

¶ 19   Dr. Shaw further testified that, at the start of the interview, Walter handed him a gift of

rosary beads. He found the gift showed impairment of her executive functioning because “she was

disinhibited and impulsive in doing so with no real comprehension that this simple act could be

positively portrayed by somebody like me or negatively. I mean, it was her lack of awareness as

to how her act could or might be p[erceiv]ed by me.” He recommended the appointment of a

guardian with authority limited to facilitating the settlement of the dissolution case.

¶ 20   Dr. Argumedo testified that she read the reports from Dr. Shaw, Dr. Kraus, and Dr. Jansons,

and she interviewed Walter. At the start of the interview, Walter gave Dr. Argumedo a rosary.

Walter explained that she worked with nuns and helped them by buying rosaries from them. She

gave away many of the rosaries she purchased.

¶ 21   Dr. Argumedo noted that according to Dr. Jansons, “Walter scored well on the executive

functioning test and did not [show] deficits in executive functioning.” Dr. Argumedo disagreed

with Dr. Shaw’s conclusion that Walter suffered from impaired executive functioning, but Dr.

Argumedo agreed with Dr. Jansons report that Walter did not “suffer[ ] from any cognitive issues

that would affect her capacity to manage her own personal and financial affairs.” Dr. Argumedo

defined delusional disorder as “a false fixed belief” and explained that patients with delusional

disorders “don’t appear odd in any way. So they tend to be people that you wouldn’t know




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otherwise until you hit on that one issue. *** And this is kind of the opposite here.” Dr. Argumedo

noted that Walter behaved oddly in many ways.

¶ 22    Dr. Argumedo testified that Walter knew she was married to Tener. Walter explained to

Dr. Argumedo her discomfort in Dr. Kraus’s office, which related to her medical history. Walter

informed Dr. Argumedo that, at a golf tournament in the early 1990s, Walter fell when lightning

struck a building near the golf course, and the lightning adversely affected her hearing and balance.

According to Dr. Argumedo, Walter “said that since the lightning strike, that she had difficulties

with sensory perception so that things were often overwhelming as far as—particularly smells, but

sounds. And that restricted her in being able to go to certain places, particularly places where there

were a lot of sounds or noises or a lot of people around.” She found Dr. Kraus’s office

overwhelming.

¶ 23    After the lightning strike, doctors treated Walter, and some “considered possibly bipolar

disorder. So as a result she was started on a lot of different psychotropic medications, including

antidepressants and *** she really struggled with the side effects of those medications.” Walter

mostly lived off her disability income since the lightning strike. Dr. Argumedo found Walter did

not suffer from any mental illness, and she remained fully competent to manage her personal and

financial affairs.

¶ 24    Relying on Dr. Shaw’s testimony, the probate court found that Walter lacked executive

functioning that impaired her decision-making skills and that her diagnoses of delusional disorder

and bipolar disorder “substantiates her disability.” The court acknowledged Dr. Argumedo’s



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conflicting expert testimony but found Dr. Shaw more credible based on his experience and

credentials. The court found credible McCormack’s testimony that Walter did not understand the

settlement negotiations and refused to settle even though the agreement was in her favor. The court

also found credible DeCostanza’s testimony that Walter refused to cooperate with her regarding

the dissolution proceeding. The court considered Walter’s testimony and noted that she could not

remember certain details, such as when she married, how many attorneys she had during the

dissolution proceeding, and whether Dr. Shaw evaluated her. The court held that Walter was

“partially capable of making personal and financial decisions” and required a limited guardian

ad litem in the dissolution proceeding. The court appointed R&R Guardianship Services as

Walter’s limited guardian ad litem.

¶ 25                          C. Nomination for Guardianship Hearing

¶ 26   In December 2021, Walter asked for leave to file a nomination for guardianship. The trial

court granted leave to file, and Walter nominated her brother, Kenneth, to serve as her limited

guardian ad litem. When the parties met to argue the motion, the court held that Walter could not

seek a new appointment of guardianship after the appointment of R&R Guardianship Services

unless that guardian agreed to withdraw or Walter sought removal and the court conducted proper

removal proceedings. Hence, the court denied Walter’s request to nominate guardian ad litem.

Walter now appeals.

¶ 27                                     II. ANALYSIS




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¶ 28   On appeal, Walter argues that (1) McCormack failed to comply with a statutory notice

requirement, (2) McCormack did not have standing to bring the original petition for appointment

of guardian ad litem and the subsequent amendments, (3) the circuit court erred by denying

Walter’s motion for summary judgment, (4) the circuit court improperly considered Dr. Kraus’s

medical report in its appointment of guardianship determination, (5) the circuit court’s disability

adjudication and appointment of guardianship findings were against the manifest weight of the

evidence, and (6) the circuit court failed to provide Walter with a meaningful opportunity to

nominate a guardian ad litem.

¶ 29   “The adjudication of disability is a uniquely factual question which is to be made by the

trial court and will not be disturbed upon review unless the trial court’s findings are contrary to

the manifest weight of the evidence.” In re Estate of Barr, 

 (1986). A

finding is against the manifest weight of the evidence only if the opposite conclusion is clearly

evident or if the finding itself is unreasonable, arbitrary, or not based on the evidence presented.

Best v. Best, 

 (2006). A reviewing court will not substitute its judgment for that

of the circuit court regarding the credibility of witnesses, the weight to be given the evidence, or

the inferences to be drawn. 

.

¶ 30   The probate court has broad discretion in determining whether to appoint a guardian. In re

Estate of Green, 

 (2005). “ ‘This discretion is not unlimited and will be

overturned if the reviewing court finds that the [court] abused its discretion’ [citation], or if its

decision is against the manifest weight of the evidence ***.” 

.



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¶ 31                                         A. Notice

¶ 32   Walter contends that McCormack failed to provide actual notice to Walter’s adult siblings

in accordance with section 11a-10(f) of the Probate Act (755 ILCS 5/11a-10(f) (West 2020)).

Walter asserts that, because of McCormack’s failure, the circuit court lacked subject matter

jurisdiction to enter judgment adjudicating Walter as a person with a disability and appointing a

guardian ad litem. McCormack argues that she provided notice to all of Walter’s “known and

reasonably ascertainable” adult siblings as required under section 11a-10(f), and therefore, the

court had subject matter jurisdiction.

¶ 33   Walter does not contest the validity of McCormack’s latest filing, the second amended

petition. Hence, we consider whether McCormack provided sufficient notice of the second

amended petition.

¶ 34   Section 11a-8 of the Probate Act prescribes certain information that must be stated in a

petition for adjudication of disability and for appointment of guardianship. 755 ILCS 5/11a-8

(West 2020). Pertinent here, section 11a-8(e) provides that the petition “must state, if known or

reasonably ascertainable: *** (e) the name and post office addresses of the nearest relatives of the

respondent in the following order: (1) spouse and adult children, parents and adult brothers and

sisters, if any.” 755 ILCS 5/11a-8(e) (West 2020). Section 11a-10 governs the petition’s notice

procedures. 755 ILCS 5/11a-10 (West 2020). It provides, in relevant part, that the petitioner must

give notice of “the time and place of the hearing *** by mail or in person to those persons,




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including the proposed guardian, whose names and addresses appear in the petition and who do

not waive notice, not less than 14 days before the hearing.” 755 ILCS 5/11a-10(f) (West 2020).

¶ 35    The evidence reveals that, at the January 2021 hearing, McCormack stated that she had

been trying to locate Walter’s nine siblings. McCormack asked Walter for her siblings’ contact

information, but Walter did not have it. McCormack was able to contact one sibling, Kenneth.

Kenneth provided his address but refused to provide any additional contact information for the

other siblings. With the help of DeCostanza, McCormack learned that three of the siblings worked

for the same employer. DeCostanza called the employer, verified that the siblings worked there,

and left a message. However, she never received a return call. McCormack also posted three

notices of the plenary petition for guardianship in the Chicago Daily Law Bulletin and was able to

get the contact information for one other sibling, Rita. Rita’s and Kenneth’s names and addresses

appeared in the second amended petition. McCormack gave notice to Kenneth and Rita by mail.

Considering these facts, we find that the petition sufficiently listed all relatives, including Walter’s

adult siblings, who were known or reasonably ascertainable to petitioner in accordance with

sections 11a-8(e) and 11a-10(f).

¶ 36    We note that our supreme court’s decisions in Belleville Toyota, Inc. v. Toyota Motor Sales,

U.S.A., Inc., 

 (2002), and People v. Castleberry, 

, distinguished

statutory authority and jurisdictional authority conferred by the constitution. In Belleville Toyota,

Inc., the supreme court stated:




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        “Characterizing the requirements of a statutory cause of action as nonwaivable

        conditions precedent to a court’s exercise of jurisdiction is merely another way of

        saying that the circuit court may only exercise that jurisdiction which the legislature

        allows. We reiterate, however, that the jurisdiction of the circuit court is conferred

        by the constitution, not the legislature. Only in the area of administrative review is

        the court’s power to adjudicate controlled by the legislature.” Belleville Toyota,

        Inc., 

.

Thus, if the circuit court has proper jurisdiction under the constitution, a statutory violation does

not divest the court’s jurisdiction over the entry of judgment of disability adjudication and

appointment of guardianship. See In re G.L., 

 (1985) (holding that the

question of whether an individual received statutory notice is “jurisdictionally insignificant”).

¶ 37    Here, McCormack established subject matter jurisdiction because the petition alleges a

definite and concrete controversy under the Probate Act. See Ill. Const. 1970, art. VI, § 9 (the

jurisdiction of the circuit court extends to “all justiciable matters”); Belleville Toyota, Inc., 

 (a justiciable matter is a “controversy appropriate for review by the court, in that it is

definite and concrete, as opposed to hypothetical or moot, touching upon the legal relations of

parties having adverse legal interests”); Goodwin v. Matthews, 

.

Therefore, the circuit court had subject matter jurisdiction in this case.

¶ 38                                          B. Standing




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¶ 39   Walter argues that the circuit court in the marriage dissolution proceeding did not have

authority to appoint McCormack as her guardian ad litem and, consequently, McCormack did not

have standing to file the original petition for appointment of guardianship and the subsequent

amendments. McCormack alleges that she had statutory standing to file the petition because her

legal experience and credentials made her a “reputable person” under section 11a-3 of the Probate

Act (755 ILCS 5/11a-3 (West 2020)).

¶ 40   Section 11a-3(a) governs the filing of the petition for adjudication of disability and

appointment of guardian. It provides:

       “Upon the filing of a petition by a reputable person or by the alleged person with a

       disability himself or on its own motion, the court may adjudge a person to be a

       person with a disability, but only if it has been demonstrated by clear and

       convincing evidence that the person is a person with a disability as defined in

       Section 11a-2.” 755 ILCS 5/11a-3(a) (West 2020).

¶ 41   Section 11a-3(a) allows a “reputable person” to file a petition. The statute does not define

the term. Thus, we must use the rules of statutory construction to construe the meaning of

“reputable person” under section 11a-3(a). In construing a statute, the goal of the court is to

ascertain and effectuate the intent of the legislature in enacting the provision. Cassidy v. China

Vitamins, LLC, 

. The statutory language, given its plain and ordinary

meaning, is generally the most reliable indicator of that legislative intent. 

 Where the meaning

of the statute is unclear from a reading of its language, courts may look beyond the statutory



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language and consider the purpose of the law, the evils it was intended to remedy, and the

legislative history of the statute. Johnston v. Weil, 

 (2011). The issue of

statutory construction is a question of law, and our review is de novo. 

.

¶ 42   McCormack relies on Nees v. Doan, 

 (1989), and In re Petition of

Berkowitz, 

 (1967), to support her argument that she was a “reputable person”

under section 11a-3(a). In Nees, the court held that the petitioner was not a “reputable person”

under the Adoption Act due to his criminal history, his continued pattern of deception, and his

employment instability. Nees, 

. In Berkowitz, the court held that

petitioner was not a reputable person under the Adoption Act because of his discharge from

employment for committing forgery. Berkowitz, 

. Both Nees and Berkowitz

demonstrate that a person’s character traits, rather than legal status, determine whether he is a

“reputable person.”

¶ 43   We believe the rationale in Nees and Berkowitz is applicable here. First, although Nees and

Berkowitz involve adoption proceedings, our supreme court held that “[i]n construing the

provisions of a statute[,] it is not only proper, but often necessary, to consider the provisions of

other statutes relating to the same subject matter for the purpose of determining legislative intent.”

Petterson v. City of Naperville, 

 (1956). Second, the plain language of section

11a-3 does not limit “reputable person” to a person’s status as guardian ad litem. Third, the

rationale in Nees and Berkowitz aligns with the Probate Act’s provision that the statute be liberally




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construed. 755 ILCS 5/1-9 (West 2020). Therefore, we find that a “reputable person” under section

11a-3 pertains to a person’s character.

¶ 44   Here, the record shows that McCormack had been practicing family law for 29 years and,

for over 20 years, has been a guardian or appointed representative about 20 times each year. The

record is devoid of any evidence that McCormack has any traits that reflect negatively on her

character. Therefore, we find that, albeit her status as the guardian ad litem, petitioner had statutory

standing to file the petition under section 11a-3(a). Consequently, we need not address the circuit

court’s authority to appoint McCormack in the marriage dissolution proceedings.

¶ 45                           C. Motion for Summary Judgment

¶ 46   Walter argues that the circuit court erred by dismissing her motion for summary judgment.

Specifically, Walter asserts that no genuine issue of fact exists where the two medical experts, Dr.

Shaw and Dr. Argumedo, provided conflicting opinions on whether Walter was a person with a

disability. Walter claims that the conflicting opinions made it “legally impossible” for McCormack

to show by clear and convincing evidence that Walter was a person with a disability.

¶ 47    Generally, when a motion for summary judgment is denied and the case proceeds to trial,

the denial of summary judgment is not reviewable on appeal because the result of any error is

merged into the judgment entered at trial. Belleville Toyota, Inc., 

. “The rationale

for this rule is that review of the denial order would be unjust to the prevailing party, who obtained

a judgment after a more complete presentation of the evidence.” 

. “But where the

issue raised in the summary judgment motion is one of law and would not be before the jury at



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trial, the order denying the motion does not merge and may be reviewed by the appellate court.”

Labate v. Data Forms, Inc., 

 (1997); see Belleville Toyota, 

.

¶ 48    This court has held that conflicting expert opinions demonstrate that factual issues exist.

Nicholas v. City of Alton, 

 (1982) (finding the court’s grant of summary

judgment improper where conflicting expert opinions demonstrated factual issues existed).

Furthermore, it is well-established that the trier of fact considers the weight to be given to

conflicting expert opinions. Walski v. Tiesenga, 

 (1978); Dabros v. Wang, 

 (1993); Jarke v. Jackson Products, Inc., 

 (1996).

¶ 49    We find that the conflicting expert medical opinions regarding whether Walter was a

person with a disability is an issue of fact. Accordingly, any errors resulting from the circuit court’s

denial of the motion for summary judgment are merged into the trial and not reviewable on appeal.

¶ 50            D. The Circuit Court’s Consideration of Dr. Kraus’s Medical Report

¶ 51    Walter alleges that the circuit court abused its discretion when it considered Dr. Kraus’s

medical report in its disability adjudication finding because the report was never admitted into

evidence. McCormack claims that Walter forfeited this issue where she did not object or file a

posttrial motion and where Walter elicited testimony about the report during trial. McCormack

also argues that the court properly considered Dr. Kraus’s report under Illinois Rules of Evidence

703 (eff. Jan. 1, 2011).




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¶ 52    We agree with McCormack that Walter has forfeited this issue. Generally, to preserve an

issue for review, a defendant must both object at trial and raise the issue in a written posttrial

motion. People v. Lewis, 

 (2006). Although Walter filed a motion in limine to

exclude Dr. Kraus’s report, the circuit court never ruled on the motion and the case proceeded to

trial. Walter never objected to the use of the report at trial and did not file a posttrial motion on the

issue. See People v. Rossi, 

 (1972) (“The failure of a trial court to rule on objections

to evidence is not open to review at the instance of one who failed to request a ruling when the

court did not make one, or in some other manner pointed out to the trial judge his failure to act.”).

Furthermore, Walter elicited testimony regarding the report during trial. “A party cannot complain

of error which he induced the court to make or to which he consented.” McMath v. Katholi, 

 (2000).

¶ 53    Even considering Walter’s argument, we believe the circuit court’s reliance on Dr. Shaw’s

opinion, which was based in part on Dr. Kraus’s report, was proper. The parties agree that the

medical experts’ reliance on Dr. Kraus’s report when formulating their opinions was proper under

Illinois Rule of Evidence 703 (eff. Jan. 1, 2011) (“The facts or data in the particular case upon

which an expert bases an opinion or inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject, the facts or data need not be admissible in

evidence.”). Moreover, whether the circuit court placed “significant reliance” on Dr. Shaw’s bases,

which included Dr. Kraus’s report, is a proper consideration for the trier of fact, who determines



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the weight given to the testimony. See People v. Sutherland, 

 (2006) (“The

weight to be given the witnesses’ testimony, the credibility of the witnesses, resolution of

inconsistencies and conflicts in the evidence, and reasonable inferences to be drawn from the

testimony are the responsibility of the trier of fact.”). Thus, the circuit court’s consideration of Dr.

Kraus’s report in its findings was not an abuse of discretion.

¶ 54            E. The Adjudication of Disability and Appointment of Guardian Ad Litem

¶ 55    Walter argues that the circuit court’s finding that she was a “person with a disability” under

section 11a-2 of the Probate Act (755 ILCS 5/11a-2 (West 2020)) was against the manifest weight

of the evidence because Dr. Shaw and Dr. Argumedo had conflicting medical opinions and the lay

witnesses provided no factual support for Dr. Shaw’s medical expert testimony. McCormack

claims that the circuit court’s finding was not against the manifest weight of the evidence and

Walter improperly requests that this court reweigh the court’s findings.

¶ 56    The circuit court may adjudge a person to be a person with a disability. 755 ILCS 5/11a-3

(West 2020). Section 11a-2 defines a “person with a disability” as

        “a person 18 years or older who (a) because of mental deterioration or physical

        incapacity is not fully able to manage his person or estate, (b) is a person with

        mental illness or a person with a developmental disability and who because of his

        mental illness or developmental disability is not fully able to manage his person or

        estate, or (c) because of gambling, idleness, debauchery, or excessive use of

        intoxicants or drugs, so spends or wastes his estate as to expose himself or his



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       family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal

       alcohol effects.” 755 ILCS 5/11a-2 (West 2020).

¶ 57   If the court adjudges a person to be a person with a disability, the court may appoint the

following:

       “(1) a guardian of his person, if it has been demonstrated by clear and convincing

       evidence that because of his disability he lacks sufficient understanding or capacity

       to make or communicate responsible decisions concerning the care of his person,

       or (2) a guardian of his estate, if it has been demonstrated by clear and convincing

       evidence that because of his disability he is unable to manage his estate or financial

       affairs, or (3) a guardian of his person and of his estate.” 755 ILCS 5/11a-3(a) (West

       2020).

¶ 58   Here, the evidence supports the trial court’s finding that Walter had a mental illness under

section 11a-2(b). Dr. Shaw testified that Walter’s delusional disorder caused her to lack executive

functioning when making well-reasoned decisions. Dr. Shaw provided two bases for his belief that

Walter suffered from delusional disorder. First, Walter believed that she was not married under

the catholic doctrine because she and Tener did not have children. Second, Walter believed Dr.

Kraus intentionally set up his office “in a manner to cause discomfort or unpleasantness to his

patients.” Dr. Shaw also opined that Walter had a psychiatric condition because she exhibited

signs of disinhibition, grandiosity, and bizarre ideation. For instance, Walter believed her

handwritten notes should be incorporated into a curriculum for physicians and law students.



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Walter’s belief showed a level of grandiosity because she believed her notes were so important

that they should be incorporated in an area where she lacked training or knowledge. Dr. Shaw also

found that Walter’s rosery bead gift showed impairment of her executive functioning because her

decision was impulsive and she did not comprehend how her decision may be negatively received

by Dr. Shaw.

¶ 59     Tener testified that Walter distrusted people and refused to let guests into her home for the

past five years. Walter complained of stomach pains and eyesight problems but refused to seek

medical assistance. DeCostanza testified that she had difficulty getting in contact with Walter

about her divorce settlement. Walter was not answering DeCostanza’s phone calls and would not

answer her door when DeCostanza went to her home. McCormack testified that Walter’s behavior

was unpredictable. Walter was either kind to McCormack or yelled and accused McCormack of

lying.

¶ 60     Although Dr. Argumedo opined that Walter did not exhibit “deficits in executive

functioning,” the circuit court, being in the best position to assess a witness’s credibility and

demeanor, found Dr. Shaw more credible based on his experience handling guardianship

evaluations. See Greene v. City of Chicago, 

 (1978) (“especially where the

testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of

review to observe the conduct of the witnesses while testifying, to determine their credibility, and

to weigh the evidence and determine the preponderance thereof”).




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¶ 61   Additionally, the evidence reveals that, due to Walter’s mental illness, she was unable to

manage her estate and financial affairs pertaining to the marriage dissolution case. Tener testified

that he assisted Walter with general home maintenance and tasks such as grocery shopping and

paying bills. During the marriage dissolution proceeding, Walter went through several lawyers but

did not remember how many attorneys she had in the marriage dissolution proceeding.

McCormack testified that, in May 2019, Walter and Tener reached a proposed settlement

agreement that was “very much in her favor” but she refused to accept the agreement.

¶ 62   The evidence indicates that Walter had a mental illness and that she was unable to manage

her financial affairs. Thus, we hold that the circuit court’s order adjudicating Walter disabled and

appointing a guardian ad litem for the limited purpose of resolving Walter’s marriage dissolution

case was not against the manifest weight of the evidence.

¶ 63                               F. Guardianship Nomination

¶ 64   Walter argues that the circuit court failed to provide her with a meaningful opportunity to

exercise her right to nominate a guardian ad litem under section 11a-12 of the Probate Act (755

ILCS 5/11a-12 (West 2020)). McCormack asserts that Walter cannot argue that she did not have

an opportunity to exercise her nomination because she failed to nominate a guardian before the

court appointed R&R Guardianship Services as guardian ad litem. McCormack also contends that

section 11a-12 does not permit Walter to nominate a guardian after the appointment of R&R

Guardianship Services.




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¶ 65   The record reveals that, before R&R Guardianship Services was appointed guardian

ad litem, Walter had not expressed her nomination for guardian. After the circuit court appointed

R&R Guardianship Services, Walter asked for leave to file a nomination to appoint her brother,

Kenneth, as guardian, which the court granted. At the hearing, the circuit court held that Walter

could not seek a new appointment of guardianship unless she filed a removal citation to commence

removal proceedings. On appeal, the parties dispute whether the Probate Act allows the circuit

court to consider Walter’s nomination for guardian after a guardian has been appointed. We turn

to the rules of statutory construction to determine whether the Probate Act allows for the

appointment of guardianship in this circumstance.

¶ 66   As previously stated, in construing a statute, the goal of the court is to ascertain and

effectuate the intent of the legislature in enacting the provision. Cassidy, 

.

The statutory language, given its plain and ordinary meaning, is generally the most reliable

indicator of that legislative intent. 

 The issue of statutory construction is a question of law, and

our review is de novo. Johnston, 

.

¶ 67   Section 11a-12 of the Probate Act governs the circuit court’s order of appointment of

guardian ad litem after a person is adjudged a person with a disability. See 755 ILCS 5/11a-15

(West 2020). Subsection (d) provides:

       “The selection of the guardian shall be in the discretion of the court, which shall

       give due consideration to the preference of the person with a disability as to a

       guardian, as well as the qualifications, of the proposed guardian, in making its



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No. 1-21-1600




       appointment. However, the paramount concern in the selection of the guardian is

       the best interests and well-being of the person with a disability.” 755 ILCS 5/11a-

       12(d) (West 2020).

¶ 68   The record shows that the circuit court found that it had no authority to reconsider its

guardianship order that appointed R&R Guardianship Services and consider whether Walter’s

proposal that her brother be appointed be accepted instead. The guardianship order entered was a

judgment entered in a non-jury case. Our Code of Civil Procedure provides that:

       “In all cases tried without a jury, any party may, within 30 days after the entry of

       the judgment or within any further time the court may allow within the 30 days or

       any extensions thereof, file a motion for a rehearing, or a retrial, or modification of

       the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203

       (West 2020).

The order appointing R&R Guardianship Services as guardian was entered on November 29, 2021.

Walter filed her nomination to appoint her brother on December 2, 2021. The motion suggesting

an alternative guardian was clearly a request that the judgment be modified. See In re Estate of

K.E.J., 

 (2008) (concluding that a motion asking for the return of

attorney fees to an estate was a motion “directed against” the judgment under section 2-1203

because it sought a material change in the terms of the judgment). The motion was timely filed

within 30 days of the guardianship judgment.




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¶ 69    The record suggests that the judge believed that Kenneth might be a better guardian but

that he could not reconsider that appointment unless Walter filed a removal citation. After Kenneth

addressed the court, the judge stated,

        “I see a family member come forward and willing to act on behalf of a family

        member and someone that certainly has my ward’s best interests at heart; but there,

        procedurally, *** my hands are locked at this particular time. There’s not a great

        deal I can do to undo what I’ve already done. *** I apologize. I wish I could undo

        what I’ve done.”

¶ 70    Our supreme court has ruled that reversable error can exist when a circuit court has refused

to exercise discretion “in the erroneous belief that it has no discretion as to the question presented.”

People v. Queen, 

 (1974).

¶ 71    Here, the trial court believed it had no discretion to reconsider its order appointing R&R

Guardianship Services, but the court did have such discretion. Hence, we find that the circuit court

abused its discretion by failing to exercise discretion. 

¶ 72    In light of the court’s findings, we hold that Walter was not given a meaningful opportunity

to exercise her right to suggest the nomination of a guardian ad litem due to the circuit court’s

mistaken belief that it could not reconsider its appointment of R&R Guardianship Services. We

remand for the circuit court to hold a hearing on Walter’s request that the guardianship order be

amended to nominate her brother for the limited purpose of resolving her marriage dissolution

case.



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¶ 73                                     III. CONCLUSION

¶ 74   We find that McCormack had standing to bring the petition for appointment of guardian

ad litem and provided sufficient notice to all known or reasonably ascertainable next of kin in

accordance with the Probate Act. We also find that the circuit court properly considered Dr.

Kraus’s medical report in the disability adjudication determination and the court’s ultimate

findings of disability and appointment of guardianship were not against the manifest weight of the

evidence. However, we find the circuit court abused its discretion when it found that it had no

authority to reconsider its guardianship order and appoint Walter’s brother as her guardian. Hence,

the court did not provide Walter with a meaningful opportunity to exercise her nomination for

guardian ad litem, and we remand to the circuit court for a hearing on Walter’s request to nominate

her brother. We declined to address Walter’s motion for summary judgment argument where any

alleged errors merged into the final judgment. Accordingly, we affirm the circuit court’s finding

that Walter is a person with a disability, we reverse the order finding that the court had no authority

to reconsider its guardianship order, and we remand to the circuit court with directions.

¶ 75   Affirmed in part and reversed in part; cause remanded.




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                   In re Estate of Walter, 

Decision Under Review:    Appeal from the Circuit Court of Cook County, No. 2019-P-8078;
                          the Hon. Jesse Outlaw, Judge, presiding.


Attorneys                 Jerome W. Pinderski Jr., of Pinderski & Pinderski, Ltd., of
for                       Palatine, for appellant.
Appellant:


Attorneys                 Leynee C. Flores, Jonathan D. Morton, and Toni J. Falligant, of
for                       Golan Christie Taglia LLP, of Chicago, for appellee.
Appellee:




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