FI FTH DIVI SI ON August 20, 2010

No. 1-09-0976 In reESTATE OF BO Z ENNA MI CHALAK, ) a Disable d Person ) ) Appea l from the ) Circuit Court of (Jacqueline H. Z ag orski, ) Cook County , ) Petitioner-Appellee , ) 07 P 4827 ) v. ) The Honor able ) Maure en E. Connors, Robert and Jolanta Kaleta , ) J udg e Presiding
. ) Respondents-Appe llants). )
PRES I DI NG JUS TI CE TOOMI

N deliver ed the opinion of the c ourt: In the instant appea l we conside r whe ther the pr obate c ourt’s orde r ame nding a disabled
war d’s re vocable trust was ag ainst the manifest we ight of the evidenc e. Robert a

nd J olanta Kaleta appea l from an or der grantingJ acque line Z ag orski’s petition to amend B ozenna Michalak’ s trust to remove the Ka letas and r eplac e Z ag orski as the succ essor trustee and conting ent bene ficiar

y under the trust. The Ka letas maintain that sec tion 11a-18(a -5) of the Probate Ac t of 1975 (755 I L CS 5/ 11a-18( a-5) (West 2008)) does not a llow amendment of a
war d’s pre exis ting trust for any rea son other than tax purposes. They further contend that: (1)
rea ppointment of Michalak’ s g uardia n ad litem afte r adjudication and continued par ticipation in the proc eeding s finds no support in the Probate Ac t; (2) the guardia n ad litem acte d beyond the

1No. 1-09-0976

scope of her a uthority in presentingher r eport; (3) the trial cour t abused its discretion in deny ing responde nts oral discover y and lea ve to file a

n answe r to the petition; (4) hea rsay contained in the guardia n ad litem ’s re port was e rrone ously admitted at the hea

ringon the petition to amend the trust; and (5) the tr ial court’s f inding wa s ag ainst the manifest we ight of the evidenc e. The Kaleta s also appea l from a subseque nt order a llowing a reve rse mortg ag e on Micha lak’s home. For the followingrea sons, we af firm. BA CKGROUND In October

and Nove mber 2006, attorney J ohn Kura

nty met with Bozenna Micha lak, an 83-y ear -old widow, to execute a n estate pla

n. Michalak c ame a lone to the consultation and spoke with Kura

nty in Poli sh. They

discussed her

assets and dispositional options in gre at detail. Michalak state d that she wa s widowed a nd had no childre n. Wit h respe ct to any extended family , Michalak “ made r efe renc e to somebody in Michiga

n, somebody

g ree dy *** [who is] not rea lly

a family member.” Kura

nty prepa red a revoc able trust, the c orpus of whic h consisted only of Michalak’ s home, titled “The B ozenna U. Micha lak Revoca ble Trust Dated Novembe r 6, 2006” (Michalak’s trust). Duringthe sec ond meetingwith Michalak, Kur anty revie wed a

nd translated the entire trust document into Poli sh for Micha lak. Acc ordingto Kuranty , Michalak did not have diminis hed or insuff

icient ca pacity and under stood every

thing Kur anty

explained duringtheir two consultations. Under the terms of the trust, Rober t Kaleta w ould become the trustee in the event of Michalak’ s incapa city ; the Kaleta s would also become the bene ficiar ies upon Michalak’ s death. In J anuar y 2007, J acque line Z ag orski, Michalak’ s niece , was a lerted by Chicag o police
2No. 1-09-0976

office rs of a

potential exploi tation of Michalak’ s financia l affa irs. Z ag orski then ac companied Michalak to va

rious banks to have her na me adde d to Michalak’s a ccounts. When she visited Michalak, Z ag orski observe d sever al conve rsations betwe en Micha lak and he r neighbors, the Kaleta s. Howeve r, bec ause Z ag orski does not speak Polish she did not understand what was beingsaid. Z ag orski did not visi t Michalak a g ain until she was ale rted by a bank in Ma

y 2007 that further

“attempts we re be ing ma de on her acc ounts.” In J une 2007, duringa cle anup ef fort at Micha lak’s house, Rober t Kaleta c ame to the house betwe en 2 and 10 times to assist Z ag orski and her husband. Ac cordingto Z ag orski, Kaleta commented to her ,“Well, I ’m the boss here as fa r as the house g oes,” a

nd said “somethingalong the same lines that the house was c oming to him.” In turn, Z ag orski applied for guardia nship of Michalak Dr. F arha n I brahimi eva luated Micha lak for the guardia nship petition proceeding s on J une 15, 2007, and f

ound her to be “inca

pable of makingpersona l or financ ial decisions.” He diag nosed her

with Alzheimer’s disease . Dr. I brahimi did not indicate that Michalak had any diminis hed ca

pacity at the time she e x ecute d her r evoca ble trust, nor did he opine howfar the disease ha d progresse d. In 2007, Michalak w as able to bathe her self, dre ss herself , to a “small extent” cook for he rself, a nd walk outside her

home to visit her neig hbors. Marc ella Hor an wa s appointed as guardia

n ad litem for pur

poses of the a djudication proce eding s. In turn, Michalak
was a djudicated a

disabled adult, and Z ag orski was a ppointed plenar

y guardia n. In May 2007, Z ag orski rec eived a letter fr om the assessor indica ting that Micha lak’s senior citizen exemption would notbe re newe d beca use of a chang e in titling of he r home.
3No. 1-09-0976

Z ag orski lear

ned that the house was he ld in trust. A citation to tender the trust docume nt was
serve d upon attorney

Kura nty , who appe are d in court on Nove mber 15, 2007 a nd tender ed the instrument. On that occa sion, Kuranty expressed conc ern ove r the possibility that Michalak, a s a native Polish speaker , may have be en unjustly

decla red inc ompetant due to a c ommunication problem with Hora

n. Acc ordingto Z ag orski, Michalak ha d told her she did not re call any details about the trust. When Z ag orski asked whether Michalak sig ned any

paper s to give her house to Robert Kale ta, Michalak said, “I may have sa id it, but Ididn’t mean it.” Z ag orski did not ask Michalak a

ny further questions beca

use “she didn’t want to seem like [she] was asking[the
war d] for any

thing.” On Dec ember

13, 2007, pursuant to Z ag orski’s motion, Horan wa s rea ppointed as Michalak’ s g uardia

n ad litem and orde red to “ conduct f urther inve stigation into [ Michalak’ s] assets, etc .” and r eport to the c ourt on Fe bruar y 13, 2008. On that date, H oran pr esente d a re port advocating invalidation of Micha lak’s trust, sug g estingundue influenc e by the Kale tas. Hora

n’s repor t rec ounted interview s with nine people. The court e ntere d an orde r re flec ting Hor an’s prese ntation of the re port and c ontinuing the matter to allow Z ag orski to present a petition to amend the tr

ust. On Marc h 11, 2008, Z ag orski filed a ve rified pe tition t o amend Micha lak’s trust, pursuant to section 11a-18( a-5) of the Probate Act (755 I L CS 5/ 11a-18( a-5) (West 2008)), ser ving the conting ent trustees a

nd benef iciarie s to the trust, Robert and Jol anta Ka leta. Z ag orski alleg ed that Michalak w as under

insufficient or diminished ca pacity when she executed the trust. The Kaleta s filed a motion to dismi ss Z ag orski’s petition. On J uly 17, 2008, duringargument on the
41-09-0976

motion, withoutnotice to re spondents, Hora n prese nted to the cour

t a document titled, “Summary of Rece nt Pleadings Conce rningTrust Amendment a nd Supplemental Report of Gua rdian Ad Litem ,” ag ain containingdetailed r ecitals of the same c onversa tions summ arized in her pr evious repor t and also re commendingdenial of the Kaleta s’ motion. The Ka letas noticed discove ry depositions of Z ag orski for August 21, 2008, and of Michalak f

or August 22, 2008. On August 21, 2008, upon emerg ency motions filed by

both the Z ag orski and Hor an, the tria l court quashe d the Kale tas’ notices a nd denied their

reque st for leave to file an a

nswer to Z ag orski’s petition instanter . The c ourt furthe r direc ted that any response to the petition to amend the trust be filed by J uly 31, 2008. A five- day

bench tr ial was he ld betwee n August 28, 2008, and Marc h 10, 2009. Z ag orski acknow ledg ed that she did not see Michalak f rom Octobe r throug h Dec ember 2006. Nor did Z ag orski know anyone who sa w Michala

k in November

2006. Over

the hea rsay objection of responde nts, Za g orski testified that since January 2007, Michalak told her

that “she w anted to
rema in in her house a

nd that when somethingdid happen to her she wa nted [her house] to belong to [ Z ag orski] and her husband.” Fr om J uly

throug h September 2007, Z ag orski did not object to the Kaleta s taking Michalak to their house for a visit, provided she knew he r whe rea bouts. Howeve r, af

ter be ing appointed plena

ry guardia n, Z ag orski forbid Micha lak to visit or speak with the Ka letas without her pe rmission, and on October 9, 2007, had her

lawyer se nd the Kale tas a letter stating a s such. Neve rtheless, Z ag orski acknow ledg ed that in the 10 year period prior

to J anuar y 2007, when the Kaleta s were Michalak’ s neighbors, Mr. Ka leta drove Michalak to the ba nk and cut he r g rass,
51-09-0976

and Micha lak’s house w as in dec ent condition. After the Kale tas no long er lived ne x t door that was no long er so. In her initial repor

t reg ardingthe trust, Hora n stated that duringher c onversation with Robert Kale ta, she wa s able to under stand him despite his Hispanic ac cent. How ever , at trial, Hora n acknow ledg ed that Ka leta wa s Poli sh, not Hispanic, and that she “misunderstood his
acc ent” a nd “could not tag

his acc ent cor

rec tly .” On c ross-examination, Horan a dmitted that her repor ted conve rsations with Offic er Jane F udacz, B erna dette B ara n, Trac ey Fondr en, Ann B ere s, J ean K insinge r, and L illian Raff did not addre ss the issue of Michalak’s mental ca pacity on November

6, 2006, or the issue of whether Michalak w ished to amend he r trust document. Hora n further testified that, althoug h Kura nty was the only

person she interviewe d who g ave information as to Michalak’s mental ca pacity on November

6, 2006, she disreg arde d his statement in formingher c onclusion in the repor t. In advocating f

or invalidation of the trust, Hora n believed Mic halak wa s confuse d when she executed the trust bec ause the trust mentioned children, a

nd Michalak ha d no children. H oweve r, Hora n did not reca ll whether she asked Kura nty any questions conce rningthis error. H oran a lso found J olanta Ka leta’s a ct of driving Michalak to Kur anty ’s offic e and w aiting outside to be sug g estive of undue influence
. Reg ardingMichalak’ s dimini shed ca pacity , Hora

n based he r opinion upon her e x perie nce in six to eig ht previous appointments as guardia n ad litem over the course of three or four y ear s. Fur ther, in re sponse to questioning a bout any visitation with the Kale tas, Michalak told Hor an, “Who is Robert Kaleta? Oh, yes, we wer e fr iends and ne ighbor s once, but he beca me a little crook, so I

don’t bother with him any more. *** We’r e not on frie ndly terms.” Reg ardingthe
61-09-0976

trust property

specific ally , Michalak state d, “no, no, no,” she “[did] not want the Ka letas to g et her home .” Micha lak stated she w anted he r house to g o to “my niece ,” Z ag orski. Robert and Jolanta Kaleta are also native Polish speaker s and testified at trial throug h an interpre ter. The Kaleta s testified that they moved next door to Michalak in 1998 and lived ther e for ove r five year s. They beg an helpingMichalak be cause she aske d and bec ause a nother he lpful neig hbor had die d. Duringthat time, the Kaleta s would see Micha lak seve ral times eve ry day
. Robert would do Michalak’s shopping , pay her bills, cut her

grass, re move snow fr om her sidewalk, a

nd help her

around the house if thing s were broken. Jolanta Kaleta would take Michalak to the ba

nk, to the restaur ant, to the veter inarian, a nd to the eye doctor . Michalak did not offer to pay J olanta for

the chor es or e rra

nds that she did, nor did J olanta ask f or any thing. The Ka letas testified that e ven whe n they moved to Br idge view, they would still see Micha lak three to four times per w eek, a nd Michalak w ould call them almost ever y day . Michalak w ould ask for help, as no one else wa s helpingher. Micha lak would alwa y s spend the holiday s with the Kaleta s, even a fter the y

moved. The K aletas ne ver sa w Z ag orski duringany

of their visits to Michalak. Micha lak would only occa sionally

mention a re lative who neve r visited her a nd
rema rked that the relative never invited her ove r for

holiday s. In November

2006, on the first visit to Kuranty ’s offic e, Micha lak mere ly called Jolanta and aske d her to c ome over to her house. When Jolanta arr ived, Michalak asked K aleta to dr ive her to a n addre ss she showed he r, say ing only that she had to take car e of something . Michalak was inside for

about an hour . They

returne d another

one or two times. On the se cond visit, Michalak me ntioned that she wa nted to sign ove r the house to the K aletas f or the he lp and ca

re
71-09-0976

they had provide d. At no time did J olanta g o into the office , meet with any attorney , or see any attorney Michalak ma

y have me t. The first time the Ka letas saw the trust document was when Michalak g ave the m a copy of it at their home. Micha lak and the K aletas the n discussed the trust. Accor ding to the K aletas, Micha lak looked ver y well, could communicate just fine, and
was re asonable . Throug h September 2007, when Micha lak would visit the Kaletas’ home for four to five hours, she a

ppear ed phy sically

fine, c onverse d and had no pr oblem understanding
. Throug h the fa ll of 2007, there w ere three or four occa sions when, in response to a ca ll from Z ag orski, the Kale tas went to Michala k’s house to help c lean it. The K aletas de nied that Robert
ever told Za g orski that he wa s “the owne r or boss” of Michalak’ s house. The K aletas c laimed that Z ag orski stated they

could no long er se e Micha lak for r easons unknown to them. At the close of

the trial, the c ourt found that the c apac ity of Michalak was not re ally the issue befor e the c ourt, despite “some pretty g laringerr ors” in the trust docume nt, including ref ere nces to c hildren in three place s and the naming a s third succe ssor trustee a bank with which Michalak ha d no history . The trial c ourt found that “what [was] at iss ue [was] the gua rdian’s authority now to reque st to amend the trust.” The court found tha t Z ag orski was a

cre dible witness. Howeve r, base d on conver sations detailed in Hora n’s initial report, the judg e found questionable the K aletas’ testimony that they continued to have contac t with Michalak three to four times a w eek a fter movingto Bridg eview. T he cour t rea soned that the Ka letas’ c laim of these c ontinued visits was imposs ible to rec oncile with Off icer Fuda cz’s and Tra cey

Fodr en’s observations that on two separate day s the house wa s a mess. The tr ial court found dispositive Hora n’s testimony

that Michalak c alled Robert Ka leta a “ crook” and said she did not wa nt the
81-09-0976

Kaleta s to ge t her home. The court de termined that “ it seems very clea r fr om the testimony

of the guardia

n and *** the guardia

n ad litem as to what the w ishes of the wa rd ar e.” The trial c ourt also disag ree d with the Kaleta s’ leg al ar gument that section 11a- 18(a5)(11) of the Probate Act per mits amendment of a r evoca ble trust only

for the pur

pose of making advisable use of cha

ng es in tax l aws. The court grante d Z ag orski’s petition and allowed amendment of

the trust such that Z ag orski was substituted as the succ essor trustee and Michalak’ s heirs at lawas the succ essor be nefic iaries. Judgment wa s entere d on Marc h 10, 2009. A subsequent or der of Marc h 24, 2009, approve d the spec ific lang uag e ame nding the
war d’s trust. A timely

notice of a

ppeal wa s filed by

responde nts. On October 28, 2009, the trial court grante d the guardia

n leave to seek a

reve rse mortg ag e ag ainst the trust proper ty . In turn, responde nts amended the ir notice of a ppeal to also see k relief

from this order
. ANALYSI S We first addre ss the threshold issue ra ised by Z ag orski reg ardingthe Kale tas’ standingto challeng e the pr obate c ourt order . In response , the Kale tas maintain that Z ag orski has for feited the issue of standingby

not properly

arguing a nd prese nting it below. How ever , standingis not
mere ly a proc edura l technica lity but, rather , is a component of justiciability which vests a c ourt with subject matter jurisdiction over a ca se under

our constitution. In re Estate of He nry , 396 I ll. App. 3d 88, 93, 919 N.E.2d 33, 38 (2009) . “Standingin I llinois require s ‘some injury in fac t to a leg ally cog nizable interest.’ ” In re Estate of He nry , 396 I ll. App. 3d at 93, 919 N.E.2d at 38, quoting Gree r v. Illinois Housing Deve lopment Authority , 122 I ll. 2d 462, 492, 524 N.E.2d 561, 574-75 (1988) . The issue of subje ct matter jurisdiction ca nnot be waive d and may

be ra ised at
91-09-0976

any time. In re Estate of He nry , 396 I ll. App. 3d at 94, 919 N.E.2d at 38. Thus, the issue of standinghas not bee n forf eited. Z ag orski asser

ts that her cited a

uthority , In re Estate of He nry , is disposi tive and mandates a

findingthat the Kale tas lack standing . In In re Estate of He nry , the cour t held that a
car etake r and e x ecutor

lacke d standingto challeng e the c ourt' s amendment of a war d' s will where the intere sts in the ward’s pr operty would not vest until t he death of the wa rd. In re Estate of Henry , 396 I ll. App. 3d at 97-98, 919 N.E.2d at 41-42. The c are taker and executor la cked standingbeca

use the fa ct that the wa

rd wa s still alive neg ated a ny prese nt vested intere st in the assets re sulting only

in expectancies. In re Estate of He nry , 396 I ll. App. 3d at 98, 919 N.E.2d at 42. See also In re Estate of Fe inberg , 235 I ll. 2d 256, 279, 919 N.E.2d 888, 902 (2009) (no interest veste d in gr andchildre n that could be diveste d at the time of settlor’s de ath bec ause the terms of his testamenta

ry trust were subject to cha

ng e; at most, they

had a me re e x pecta

ncy ). Howeve r, her e Z ag orski’s ar gument is blunted by the fa ct that the trust instrument upon execution cre ated a

n inter vivos trust, as opposed to a will, which doe s not take ef fec t until a testator’s de ath. An expectanc y interest is the “ ‘ “intere st of a per son who mere ly fore sees that he mig ht rec eive a

future be nefic ence , such as the inter est of an he ir appa rent *** or of

a benef iciary desig nated by

a living insure d who has a right to chang e the be nefic iary .” ’ ” In re Marriage of Centioli , 335 I ll. App. 3d 650, 656, 781 N.E.2d 611, 616 (2002), quoting In re Marriage of W

einstein , 128 I ll. App. 3d at 244, 470 N.E.2d at 559, quoting In re M arriage of Peshek , 89 I ll. App. 3d 959, 964, 412 N.E.2d 698, 702 (1980). The principal distinction betwee n a will and a tr

ust is that in t he for

mer, the be nefic iary

has no intere st until the death of the
101-09-0976

testator, while in the latter , benef iciary has an inter est the moment the trust is cre ated. Favata v. Favata , 74 I ll. App. 3d 979, 982, 394 N.E.2d 443, 446 (1979). The fac t that a bene ficiar y ’s actua l enjoy

ment of the trust res is continge nt upon the settlor’s death does not neg ate the exis tence of a pr esent intere st in the benefic iary duringthe settlor’s lifetime. In re Estate of Zukerman , 218 I ll. App. 3d 325, 332, 578 N.E.2d 248, 253 (1991), c iting Farkas v. W illiams , 5 I ll. 2d 417, 425-26, 125 N.E.2d 600, 605 (1955), a nd In re Estate of Pe tralia , 32 I ll. 2d 134, 137- 38, 204 N.E.2d 1, 3 (1965)
. These sa me principles guide our a naly sis here. Under a

rticle I Iof her inter vivos trust, Michalak w as the primar

y benef iciary and re serve d the right to amend or re voke the trust. Article I I Iof the trust provided tha t the Kaleta s would become the succ essor be nefic iaries of the
rea l estate owne d by

Michalak a

nd the balanc e of the trust estate, upon Micha lak’s death. We there fore deter

mine the Kale tas’ re mainder inter est was ve sted, rathe r than c ontinge nt as Z ag orski argues. A re mainder is conting ent if the re mainderma n’s identity

cannot be definitely
asce rtained or

if the re mainder is conditioned on the ha ppeningof an e vent not cer tain to happen. Oak Park Trust & Savings Bank v . Baumann , 108 I ll. App. 3d 322, 328, 438 N.E.2d 1354, 1358 (1982); Dempse

y v. D empse

y , 342 I ll. App. 3d 969, 974, 795 N.E.2d 996, 1000 (2003). A “veste d rema inder is to one re ady to come into possession upon the termination of the pr ior estate.” (Emphasis omitted..) Jurgens v . Eads , 67 I ll. App. 3d 52, 57, 383 N.E.2d 1003, 1006 (1978). Her e, we perc eive that Z ag orski’s ar gument patently overlooks the a

bsence of any condition prec edent to the Ka letas ac quiringan intere st in the real e state upon execution of the
111-09-0976

trust. Their enjoy

ment of the prope rty

would immediately

materia liz e upon Micha lak’s death, subject to no other c onditions. S ee In re Estate of Zukerm an , 218 I ll. App. 3d at 332, 578 N.E.2d at 253 (be nefic iary ’s intere st in trust property vested immediately

upon decla

ration of trust, althoug h she wa s not to rece ive possession of prope rty until settl or’s de ath); Giagnorio v. Torkelson Trust , 292 I ll. App. 3d 318, 324, 686 N.E.2d 42, 46 (1997) ( conting ent bene ficiar y of a
curr ent, exist ing, tr

ust had standingto pursue a suit ag ainst the trustee f or bre ach of

fiduciar y duties). Cf. Schlosser v. Schlosser , 247 I ll. App. 3d 1044, 1049-50, 618 N.E.2d, 364-65 ( 1993) (g randc hildren lac ked standingto contest validity of subseque nt will which revoke d trust where trust provided for

benef icial intere st to pass to the gr andchildre n “then living ,” who we re thus conting ent, rather than ve sted, rema inders, and where approva l by the trustee w as a c ondition prec edent) . Conversely , in the case sub judice , the Kale tas had a n equitable r emainder

interest, which veste d immediately upon the cr eation of the trust and, there fore , they have sta nding to appea l the circ uit court’s orde r. We now addre ss the merits of the Ka letas’ grounds for a ppeal. The Kaleta s first maintain that Z ag orski’s petition to amend the trust is not permitted by section 11a- 18(a- 5)(11) of the Probate Ac t (755 I L CS I L CS 5/ 11a-18( a-5) (11) ( West 2008)), which pre scribes the duties of the estate guardia

n. The c onstruction of a statute, inc luding se ction 11a-18( a-5) (11) of the Probate Act, is a que stion of law, which this court r eviews de novo
. In re Estate of Ahme d , 322 I ll. App. 3d 741, 744, 750 N.E.2d 278, 281 (2001) . “A c ourt must consider all of the parts of the statute toge ther.” People v . Martinez , 184 I ll. 2d 547, 550, 705 N.E.2d 65, 66 (1998), c iting People v

. W arren , 173 I ll. 2d 348, 357, 671 N.E.2d 700, 705 (1996).
121-09-0976

The Ka letas asse rt that the plain languag e of subse ction 11a-18( a-5) (11) de monstrates a clea r leg islative intent to allow amendment of r evoca ble trusts only

to adjust to chang es in tax laws. Converse ly , Z ag orski maintains that the meaningof subsec tion 11a-18(a -5)( 11) must be g leane d from the plain languag e of se ction 11a-18( a-5) as a whole and that this subsection does not limi t amendment of trusts to only tax purposes. We are mindful of the par ties’ ar guments as to the leg islative intent in the passag e of section 11a- 18, with citation to the leg islative debate s. Howeve r, whe re a statute is clear

and unambig uous, the court should not look to ex trinsic aids for c onstruction. Lawrence v. R egent Realty Group , 197 I ll. 2d 1, 10, 754 N.E.2d 334, 339 (2001), c iting Board of Education of Rock ford School District No. 205 v. Illinois Educational Labor Relations Board, 165 I ll. 2d 80, 87, 649 N.E.2d 369, 372 (1995) . Section 11a-18( a-5) clea rly states: “In asce rtainingand ca

rry ing out the w ard’ s wishes the cour t may consider, but shall not be limited to , minimi zation of St ate or fede ral income , estate, or inheritanc e taxes; and providingg ifts to charities, re latives, and fr iends that would be likely rec ipients of donations from the wa

rd. The w ard’ s wishes as best they can be asce rtained sha ll be
car ried out, whe ther or not tax saving s are involved.” (Empha sis added.) 755 I L CS 5/11a-18(a -5) ( West 2008). Subsection 11a-18( a-5) (11) is also per missive: “Ac tions or applications of funds may include, but shall not be limited to, the following: * * * (11) modifying by

means of c odicil or trust amendment the te rms of the wa rd' s 131-09-0976

will or any

revoc able trust cr eate d by the war d, as the c ourt may consider a dvisable in light of c hang es in applica ble tax laws.” (Emphasis adde d.) 755 I L CS 5/ 11a-18( a-5) (11) (West 2008). “ ‘Under the well established r ules of statutory

construction, the wor ds used in the statute must be g iven their ordina ry and popular ly

understood mea

ning, a nd the re levant languag e must be re ad within the context of the entire pr ovision of which it forms an integral pa rt.’ ” Garner v. City of Chi cago , 319 I ll. App. 3d 255, 263, 744 N.E.2d 867, 872 (2001), quoting Illinois W ood Energy Partners, L.P. v. County of Cook , 281 I ll. App. 3d 841, 850, 667 N.E.2d 477, 483 (1995). “The words ‘inc lude’ [and] ‘including’ are ordinarily terms of e nlarg ement rather than r estriction and indicate that items enumerated in statute are not meant to be exclusive.” Gem Electronics of Monmouth, Inc . v. De

partment of Reve nue , 286 I ll. App. 3d 660, 667, 676 N.E.2d 1016, 1021 (1996), c iting Paxson v. B oard of Education of School District N o. 87 , 276 I ll. App. 3d 912, 920, 658 N.E.2d 1309, 1314 (1995)
. Notably , in In re Estate of Ahme d , we he ld that “[t] he consistent and e x clusive use of the term ‘may ’ throug hout section 11a-18( a-5) ” indicate d that the provision was pe rmissive, and that the trial cour

t may exercise its discre tion in gra nting r elief unde r it. In re Estate of Ahme d , 322 I ll. App. 3d at 746, 750 N.E.2d at 281. The trust company had ar gued that movingthe assets of the war d’s guardia

nship estate into a trust would yield highe r re turns than in a guardia nship
acc ount, and would allow “mor e fle x ibilit y in the administration of [the ward’s] assets.” In re Estate of Ahmed, 322 I ll. App. 3d at 742, 750 N.E.2d at 279. Instead, the tria l court found that, reg ardle ss of the potential hig her r eturn, it was in the be st interest of the disable d person to lea ve
141-09-0976

his funds within the protection of the guardia nship estate, pursua

nt to the leg islative intent to protec t wards. In re Estate of Ahme d , 322 I ll. App. 3d at 743-44, 750 N.E.2d a t 280. We found the languag e of the statute was c lear ly permissive and not mandatory , and we aff irmed the trial court’s de nial of the trust compa ny ’s petition to transfer

the guardia

nship estate to a trust as a proper exercise of

its discretion under the e nactment. In re Estate of Ahme d , 322 I ll. App. 3d at 747, 750 N.E.2d at 282. Although the Kaleta s impli citly conce de “the clea

rly permissive languag e in the statute” (sec tion 11a-18(a -5)) , they nonetheless c ontend that subsection 11a- 18(a- 5)(11) is restrictive in its scope. B ased on the plain languag e of the statute, we disagree and find that subsec tion (11) does not restric t the broad pe rmissive languag e of se ction 11a-18( a-5) , of which it is a par t. The Ka letas fur

ther a rgue that sec tion 11a-18(d) , which provide s that “[a] guar dian of the estate sha ll have no author ity to revoke a trust that is revoc able by the war d,” demonstra

tes the leg islature’s intent to protec t estate planningvehicles suc h as trusts from ame ndment afte r a w ard has bee n decla

red disable d. 755 I L CS 5/ 11a-18( d) (West 2008). Howe ver, this provision is limit ed to guardia

ns of the estate, and doe s not prohibit guar dians ad litem from petitioning to revoke or ame nd trusts on behalf of a wa rd. The tr ial court ha d the authority , pursuant to 11a-18( a-5) , and par

ticularly subsection 11a- 18(a- 5)(11) , to gr ant Z ag orski, as plena ry guardia n of Michala

k’s estate , the power

to amend the ter

ms of the trust, espec ially g iven the cour

t’s findingthat it was not the war d’s wish that they be the be nefic iaries. 755 I L CS 5/ 11a-18( a-5) (West 2008). The Ka letas next maintain that the trial court improper ly rea ppointed Hora

n as guardia

n
151-09-0976

ad litem , that Hora

n inappropriately

exercised he r off

ice a s g uardia

n ad litem , and the c ourt improperly

relied on ina dmissibl e hea rsay provided by

Hora n in her re port. The r ole of the guardia n ad litem is set out in section 11a-10 of the Probate Ac t. In re Guardianship of Mabry , 281 I ll. App. 3d 76, 88, 666 N.E.2d 16, 23 (1996). Sec tion 11a-10(a ) provides, in re levant par t: “The court shall appoint a guardia n ad litem to report to the c ourt conc erningthe responde nt’s best interests consistent with the provisions of this Section *** at or bef ore the hea ring , the guardia

n ad litem shall file a written report de tailing his or he r observations of the responde nt, the response s of the re spondent to any of the inquires detailed in this Section, the opinion of the guardia n ad litem or other pr ofessionals with whom the guardia

n ad litem consulted conc erning the appr opriatene ss of guardia nship, and any other mate rial iss ue discovere d by the guardia

n ad litem. The guardia

n ad litem shall appea

r at the he aring and testify as to any issues presented in his or her report
. (Emphasis adde d.)” 755 I L CS 5/ 11a-10( a) ( West 2008). The Ka letas also fa

ult Horan’s suppleme ntal repor ts, chara cter izi ngthem as an imprope r exercise of

her of fice . Howeve r, under

the statute we discern no impropr iety . Pursuant to section 11a- 17(b), a

guardia n ad litem is specifica lly

authorized to file periodic repor ts with the court, a nd ag ain allows for

a broa d scope of

information to be pre sented to the c ourt: “I f the c ourt direc ts, the g uardia n of the pe rson shall file with the cour t at intervals indicated by

the cour t, a re port that shall state brief ly : (1) the c urre nt mental, phy sical, and socia l condition of the war d *** ; *** (4) a r esume of the guardia n' s visits with and activities on beha lf of the wa rd ***; (5) a

rec ommendation as to the nee d for c ontinued
161-09-0976

guardia nship; (6) any other information requested by the court or useful in the opinion of the guardian .” (Empha sis added.) 755 I L CS 5/ 11a-17( b) (West 2008). Section 11a-17 ve sts a guardia n ad litem with broad a

uthority to act in the best intere st of the
war d. In re Estate of D.W

. , 134 I ll. App. 3d 788, 791, 481 N.E.2d 355, 356-57 (1985)
. Simi larly , the Kale tas’ asse rtion that the rea ppointment of Horan a s guardia n ad litem was improper f

inds no support in the statute. Section 11a-18(c ) expressly states a c ourt’s powe r to appoint a guardia

n ad litem is not li mited: “The guardia

n of the e state of a

war d shall appea

r for and re prese nt the war d in all leg al proc eeding s unless another pe rson is appointed for that purpose a s g uardia

n or next friend. T his does not impair the power of any court to appoint a guardia n ad litem or next friend to de fend the interests of the w ard in that c ourt, or to appoint or a llow any person as the ne x t friend of

a wa rd to commenc e, prose cute or defe nd any

proce edingin his behalf .” 755 I L CS 5/ 11a-18( c) ( West 2008). This provision comports with our prior dec isions holdi ngthat in addition to the gua rdian of the e state a guardia

n ad litem may

be appointed to r epre sent the intere sts of the disabled person a nd is specifica lly

authorized “ ‘to de fend the interests of the w ard in *** c ourt.’ ” In re Marriage of Hirsch , 135 I ll. App. 3d 945, 960, 482 N.E.2d 625, 635 (1985), quotingI ll. Rev. Stat. 1983, ch. 110-111, par . 11a-18.. The Kaleta s argue that this languag e “doe s not authorize ***, nor does it sug g est, that appointment of a guardia n ad litem in an ac tion pursuant to [s] ection 11a- 18(a- 5) is appropr iate or ne cessa ry ,” but offe r no authority for f inding suc h appointment unauthorized or improper . We find the languag e of se ction 11a-18( c) is suff iciently
171-09-0976

broad on its fa ce, a llowing the a ppointment of a guardia

nad litem to “commenc e, prose cute or defe nd any proce eding ” on a w ard’ s behalf. ( Emphasis added.) 755 I L CS 5/ 11a-18( c) ( West 2008). We nextconsider the Kaleta s’ ar gument that the trial cour t errone ously

denied them or al discovery and improper ly

denied their

reque st for leave to file a n answe r to Z ag orski’s petition within the time frame pr ovided by law. I n the proc eeding s below, the Ka letas noticed the depositions of Z ag orski for August 21, 2008, and of Micha lak for August 22, 2008, although tria l was set to beg in on August 28, 2008, and soug ht to file a late a nswer. Supreme Court Rule 202 provides: “I f the e vidence deposition of a witness is to be take n within 21 day s of trial, a discove ry deposition is not permitt ed unless the pa rties stipulate otherwise or

the cour t orders othe rwise upon notice and motion.” 166 I ll. 2d R. 202. S upreme Court Rule 183 provides that a c ourt, “for g ood cause shown” on motion with notice to the opposite party , may

extend the time for filing any pleading . 134 I ll. 2d R. 183. Here, the K aletas soug ht to take depositions six and seve n day s befor e trial, in cle ar c ontrave ntion of Supreme Court Rule 202. The Kale tas’ answ er w as due July 31, 2008, and as Z ag orski cog ently argues, the re cord doe s not show that the Kaleta s articulate d sufficie nt cause for se ekingto file a be lated response . The Ka letas make no reply to these asse rtions, thereby tacitly admitting them. We affir m the court’s or der of

August 21, 2008, quashing the deposition subpoenas and denying the Kaleta s leave to file their answ er instanter . In so ruling, w e disce rn the Ka letas’ cited author ities are distinguishable. People v . W illif ord , 271 I ll. App. 3d 922, 649 N.E.2d 941 (1995), is a c riminal case g overne d by the attenda

nt discovery

rules for criminal ca ses, and ther e
181-09-0976

the discover

y reque st at issue consisted of a sing le interrog atory which wa s not unduly burdensome a

nd was timely

filed and se rved. W

illif ord , 271 I ll. App. 3d at 928, 649 N.E.2d at 945. Krych v. B irnbaum , 66 I ll. App. 3d 469, 384 N.E.2d 52 (1978), w as a sha reholde r suit ag ainst a cor

poration for

decla ratory relief , including a

n acc ounting a

nd dissoluti on of the corpor ation. Moreove r, in Krych , g ood cause was shown whe re both pa rties had e ng ag ed in discovery and the r eply

soug ht to be filed wa s in response to a motion for judg ment on the pleading s filed on the day of trial, with no prior notice
. Krych , 66 I ll. App. 3d at 471, 384 N.E.2d at 54. Thus, g ood cause was shown. He re, the Kaleta s made no such show ing. Fur ther, sec tion 1-4 of the Probate Act provide s: “On the c ourt' s own motion or on motion of any

interested pe rson, bef

ore or duringany

hear ing, a

ny person who de sires to oppose the entry of an or der or

judgme nt shall file, as directed by the court , a plea ding disc losing the g rounds of opposition.” (Emphasis adde d.) 755 I L CS 5/ 1-4 (West 2008). Additionally , we pe rce ive that the cour t below may

have statutory

authority to enter a n order without the require ment of a r esponse or further discovery . Section 11a-18( f) pr ovides: “Upon pe tition by

any interested pe rson (includingthe standby or short-ter

m guardia n), with such notice to inter ested pe rsons as the c ourt direc ts and a finding by the court that it is in the best interest of the disa bled per son, the court may terminate or

limit the authority

of a standby

or short-ter

m gua rdian or may e nter such other orders as the court dee ms nec essary to provide for the be st interest of the disabled person .” (Empha sis added.) 755 I L CS 5/ 11a-18( f) ( West 2008). The Ka letas also conte nd that they wer e denie d the “r ight to cr oss examine” Hora n, citing
191-09-0976

only one author ity , Alford v. United States , 282 U.S. 687, 75 L . Ed. 624, 51 S. Ct. 218 (1931), a criminal ca se. To the e x tent the Kale tas are ref err ing to the sixth amendment confr ontation clause , we f

ind such argument misplaced, a s the guara ntee is a pr otection af

forde d to criminal defe ndants. The sixt h amendment of the United States Constitut ion provides: “In all criminal prosec utions, the acc used shall enjoy the rig ht *** to be confr onted with the witnesses a g ainst him.” U.S. Const, Amend. VI . This valuable sa feguard pr otects a c riminal defe ndant’s right of
cross-e x amination. People v . Alcala , 248 I ll. App. 3d 411, 422, 618 N.E.2d 497, 505 (1993), citing Davis v. Alask

a , 415 U.S. 308, 316-17, 39 L . Ed. 2d 347, 353, 94 S. Ct. 1105, 1110 (1974). The c onstitut ional rig ht to confront witnesses a nd the common law r ight a re se parate. 1 People v . Ave rhart , 311 I ll. App. 3d 492, 497, 724 N.E.2d 154, 159 (1999). Although the Kaleta s initi ally argue that they

wer e denie d a fa ir trial bec ause the trial court de nied their right to cross-examine, it is appare nt from the re mainder of their argument and the re cord that their complaint ac tually addre sses the scope of the e x amination. The Ka letas
asser t that the trial court should have allowed them to cr oss-examine Horan r eg arding her pla ce of work a nd residenc e, her

languag e skills, and an unidentified “ competent a nd probative question submitt ed to her .” Ye t, the Kaleta s offe r no insight a s to how barr ing suc h questions resulted in any

prejudice to them. Given the pauc ity of ar gument and author ity on this point , we have no dif

ficulty in finding the y

have f orfe ited addre ssing the me rits of same. This rig ht is secure d for de fenda nts in state as well as f

eder al criminal procee dings 1 under Pointer v. Texas , 380 U.S. 400, 13 L . Ed. 2d 923, 85 S. Ct. 1065 (1965). Davis , 415 U.S. at 315, 39 L . Ed. 2d at 353, 94 S. Ct. at 1110. 201-09-0976

Fur ther, e ven we re w e to re ach the issue, the scope and extent of cross- examination are within the discretion of the tria l court. Adams v. Sarah Bush Lincoln Health Center , 369 I ll. App. 3d 988, 998, 874 N.E.2d 100, 109 (2007) . When a par ty challeng es a tria l court’s evidentiar y ruling s, the standar d of re view is abuse of discretion. Leonardi v. Loyola University of Chicago , 168 I ll. 2d 83, 92, 658 N.E.2d 450, 454-55 (1995). It is only in a ca se of c lear

abuse of such discr etion, resultingin manifest pre judice to the def

endant, that a

revie wingcourt will interfe re. Adams , 369 I ll. App. 3d at 998, 874 N.E.2d at 109. Eve n err ors of a constitutional dimension, such as the right of confr ontation, may be har mless. In re M

arriage of De Bates , 212 I ll. 2d 489, 515, 819 N.E.2d 714, 728 (2004). As the K aletas make no showingof manife st prejudice to them, there w as no abuse of discre tion in the trial court’s ruling s circumsc ribing
cross-e x amination. Moreove r, in addre ssing the K aletas’ evidentiar y arguments, we pe rce ive that hea ring s
conce rningissues impli catingthe welf are and best intere sts of a disabled pe rson ar e not in the nature of an a dversa

rial proc eeding , as other c ivil procee dings a re. See In re Estate of W

ellman , 174 I ll. 2d 335, 347-48, 673 N.E.2d 272, 278 (1996) ( “guardia nship procee dings a

re not, strictly speaking , adver sarial” ). “Aguardia n ad litem functions as the ‘ eyes and e ars of the cour t’ and not as the wa

rd' s attorney .” In re M

ark W

. , 228 I ll. 2d 365, 374, 888 N.E.2d 15, 20 (2008), quoting In re Guardianship of Mabry , 281 I ll. App. 3d at 88, 666 N.E.2d at 24, c iting In re Marriage of W

ycoff , 266 I ll. App. 3d 408, 415-16, 639 N.E.2d 897, 904 (1994) . “The GAL does not repre sent the wa

rd in a norma l attorney -client re lationship; i n fac t, the GAL need not e ven be an attorne y .” In re Guardianship of Mabry , 281 I ll. App. 3d at 89, 666 N.E.2d at 24, c iting 755
211-09-0976

I L CS 5/ 11a-10( a) ( West 1994). Fur ther, a guardia n ad litem is an offic er of the cour t; “[g]uardians only

act a s the hand of the cour t and ar e at a ll tim es subject to its direction in the manne r in which they provide for

the
car e and suppor

t of the disabled pe rson.” In re Estate of Nelson , 250 I ll. App. 3d 282, 287, 621 N.E.2d 81, 85 (1993) , appeal denied, 152 I ll. 2d 560, 622 N.E.2d 1207 (1993), c iting In re Estate of Peterson , 103 I ll. App. 3d 481, 485-86, 431 N.E.2d 748, 752 (1982) . “Onc e a pe rson is adjudicate d disabled, that per son remains unde r the jurisdiction of the c ourt, eve n when a plenar y guardia n of the pe rson has be en appointed.” In re M ark W

. , 228 I ll. 2d at 375, 888 N.E.2d at 21, citing In re Estate of Nelson , 250 I ll. App. 3d at 286-87, 621 N.E.2d at 84-85. Moreove r, a disabled per son is viewed as “ ‘a f avore d person in the e y es of the la w’ ” and is entitled to vigilant pr otection. In re M ark W

. , 228 I ll. 2d at 374-75, 888 N.E.2d at 20, quoting W ellman , 174 I ll. 2d at 348, 673 N.E.2d at 278. The K aletas a cknowledg e In re M ark W

. , but offer

no substantive response , other than r epea ting their own circ ular a

rgument. The leg islature has specific ally

delineate d the nature and conduc t of these pr ocee dings in the my riad provisions we have r ecited, a

nd we f ind no impropriety

in the conduct of

the proc eeding s below. The Ka letas fur

ther maintain that the c ourt should not have allowe d the admission of
cer tain hear say

statements appe aring

in Horan’ s repor

t and that the cour

t should not have considere d these stateme nts in ruling on the pe tition. The Kaletas pa rticularly challeng e Hor an’s Fe bruar y 13, 2008, “GiftingReport” a s the most problematic, conta ining state ments of the wa rd, Robert Kale ta, attorne y

J ohn Kura

nty , police off

icer J ane F udacz, a ba

nk employ ee, a

family service s employ ee, a

nd Michalak’ s friends Ann B ere s and Jean Kinsinge r. Althoug h the
221-09-0976

admission of evidenc e is ordinar ily within the sound discretion of the tria l court, the initial deter mination that a particula

r statement c onstitut es hea rsay is a leg al issue, which doe s not require any

exercise of

discretion, fa ct findingor eva luation of cre dibilit y . Halleck v. Coastal Building Maintenance Co. , 269 I ll. App. 3d 887, 891, 647 N.E.2d 618, 623 (1995). Thus, a trial court’s de termination as to the hea rsay nature of a pa

rticular statement is subject to a de novo standard of

revie w. Halleck, 269 I ll. App. 3d at 891, 647 N.E.2d at 623. . At the outset, we note that the Kale tas fail to identify the statements they

find problematic ( see In re M

arriage of De Bates , 212 I ll. 2d at 517, 819 N.E.2d at 729 (a rgument that
a re port was imprope rly

admitted wher e it was “ riddled with hea rsay ,” wa s forfe ited wher e responde nt did not identify the purporte d hear say

statements and did not desc ribe a ny prejudicia l eff ect r esulting f

rom the re port’s admission)). How ever , the Kale tas do ref er to the pa

rties who made suc h statements, includingpolice off icer s and Michalak’s neig hbors, and they do claim prejudicia l effe ct, there by sufficie ntly

prese rvingthe issue for our revie w. Hea rsay is “ ‘testimony

in court or wr itten evidence , of a state ment made out of c ourt, *** offe red to show the tr uth of matters a sserted the rein, a nd thus restingfor its value upon the
cre dibilit y

of the out-of

-cour t asserte r.” People v . Carpenter , 28 I ll. 2d 116, 121, 190 N.E.2d 738, 741 (1963), quotingMcCormick on Evidenc e sec tion 225, at 460 (1954). Ge nera lly , hear say is inadmissi ble unless it falls within a rec og nized ex ception. In re A.J

. , 296 I ll. App. 3d 903, 916, 695 N.E.2d 551, 560 (1998) . We rec og nize that hearsa y statements have been excluded in a proc eedingto terminate pa renta l rig hts. See In re A.J

. , 296 I ll. App. 3d at 917, 695 N.E.2d at 560 (r ever sing judg ment of circ uit court which ha d allowed a dmission of hearsa y of
231-09-0976

case worke rs that re spondent had positive drugtests). Howe ver, w e find no a uthority in I llinois mandatingthe exclusion of releva nt information in a guardia n ad litem ’s re port conc erningissues reg ardinga wa

rd beinginvestigated by

a cour t. On the contra

ry , it appear s that hear say is considere d in making suc h investigations and determinations. See In re Estate of Nelson , 250 I ll. App. 3d at 287-88, 621 N .E.2d at 85 (whe n court wa s prese nted with hear say information indicatingthat war d might be ne g lected, pr udent cour se wa s to investigate adult war d’s living conditions to verify

such information). See also In re Estate of Steinfeld, 158 I ll. 2d 1, 12, 630 N.E.2d 801, 806 (1994) (cour t rejec ted a c ontention that relianc e on hea rsay statements, the absenc e of a

medical r eport, a

nd the disreg ard of

sever al other statutory

require ments violated constitutional rights and r ender ed a disa bility and guardia

nship order void). Neve rtheless, we are mindful that the Code of Civil P roce dure ( 735 I L CS 5/ 1-101 et seq .) applies, with ce rtain exceptions, to all proce eding s under the Proba te Act. 755 I L CS 5/ 1-6 (West 2008); In re Estate of Barth , 181 I ll. App. 3d 279, 282, 536 N.E.2d 973, 975 (1989). The Code provides: “As to a ll matters not regulated by

statute or rule of cour

t, the prac tice at c ommon law preva ils.” (Emphasis adde d.) 735 I L CS 5/ 1-108(c ) (West 2008). Notably , acc ordingto section 11a-10 ( 755 I L CS 5/ 11a-10( a) ( West 2008)) of the Proba te Act, “ [t ]he gua

rdian a d litem shall appea r at the he aringand testify as to any issues prese nted in his or her report .” (Empha sis added.) In re Estate of Doy le , 362 I ll. App. 3d 293, 301, 838 N.E.2d 355, 362 (2006). H oweve r, the probate cour

t does not have a

provision in derog ation of the c ommon law rule prosc ribing hear say testimony
. Although the Kaleta s acknow ledg e the br eadth of section 11a- 10(a) , they

stridently
241-09-0976

maintain that there is nothing in the Probate A ct, includingsection 11(a )-10( a) that immuni zes the contents of the repor

t or the testimony

of the guardia

n ad litem from the r

ules of evide nce. Noting the lack of

definitive I llinois prec edent a ddressingthis iss ue, the Ka letas see k relianc e on Joyc e S. v. F

rank S. , 6 Neb. App. 23, 571 N .W.2d 801 (1997), wher e the Ne braska Court of Appea ls observed :

“[t] he primary

function of the guardia

n ad litem’s re port is for the guardia n to demonstrate to the judge that the guard ian has perf ormed his or her duty
. Fr equently , when a guardia n ad lite m’ s r eport does not contain objectionable hear say , it is an efficient means of communi cating the facts that the guardia n has lea rned to the parties and to the judge , if proper ly admitted into evidenc e, but a repor t is not somehow made admissible beca use it was prepa

red by a guardia

n ad litem appointed by a court pursuant to a statute. Hea rsay within such repor

ts remains hear say . The guardia n’s report and the documents attached to it will not be considered in our de novo revie w.” Joyc e S. , 6 Neb. App. at 33, 571 N.W.2d at 809. An identical r esult obtained in In re Guardianship of R.S. , 162 Wis . 2d 197, 470 N.W.2d 260 (1991), whe re the circ uit court admitted the hea rsay repor t of a lice nsed psycholog ist as evidenc e of he r diagnosis of the proposed w ard’ s incompetenc e. Althoug h the Wisconsin Supreme Court re cog nized that by statute the psycholog ist’s report c ould be furnishe d to the court, it reje cted the c ontention that the leg islature intended that the substance of the re port could be admitted into evidenc e at tria l. In re Guardianship of R.S. , 162 Wis . 2d at 207, 470 N.W.2d at 264. Simi larly , in Florida, a lthough the la w mandate d that the guardia n ad litem file a written
251-09-0976

repor t with the court, that re quirement did not serve to admit the contents as proof of the matter s
asser ted. Scaringe v . Penni He rrick, 711 So. 2d 204 (Fla. A pp. 1998). As the F lorida Court of Appea ls reasone d: “B y nece ssity , the re port will usually contain hea

rsay . The a ct of filingthe re port does not place the re port in evidenc e. He arsa y rules conta ined in the Flor ida Evidence Code apply

to section 61.403. Acc ording ly , when a guardia n attempts to testify to hear say

statements and a

valid hear say

objection is raised, that objection should be sustained.” Scaringe , 711 So. 2d at 204-05. L ikewise, in Tenne ssee a lthough a guardia nad litem ’s re port is not admissibl e evide nce, suc h repor ts may be re viewed by

the trial cour

t to provide an ove rview of the evidenc e and to a llow the cour t to determine whic h of the issues ar e conte sted. Toms v. Toms , 98 S.W .3d 140 (Tenn. 2003). Howe ver, a

guardia n may not testify

as to statements made by witnesses who we re interviewe d in the course of the guardia n’s investig ation, unless the statement doe s not meet the definition of hea

rsay or a he arsa

y exception gove rns the testimony
. Toms , 98 S.W .3d at 144. In the ca se sub judice the trial cour t did not squarely

addre ss the Kaleta s’ hea

rsay objection, instead rulingthat, it could take judicial notice “ of any pleadingin the case *** or any repor t that’s been f

iled.” The c ourt then proc eede d to admit the report a s evidenc e, and 2
The doc trine of judicial notice is a substitut e for proof a nd is based on conve nience and 2
nece ssity . Takingjudicial notice of a fac t is merely

another way of say ing that the usual forms of evidenc e will be dispensed w ith if the fac t is one which is commonly known or re adily

verifia ble from sourc es of indisputable a ccur acy . J . Corkery , I llinois Civil , Criminal Evidence § 201.101 261-09-0976

considere d its entirety

and the state ments therein in makingher r uling. How ever , the cour t did find that some of the e x trajudicial stateme nts in the report we re not off ere d to show the truth of the matter a sserted the rein. Our de novo revie w offe rs some support for the trial cour

t’s finding s. Out-of-c ourt statements offe red f

or some indepe ndent purpose, r ather than the truth of the matter asse rted, a re not hear say . Lauman v. Vandalia Bus Lines, Inc. , 288 I ll. App. 3d 1063, 1072, 681 N.E.2d 1055, 1062 (1997); Halleck, 269 I ll. App. 3d at 891, 647 N.E.2d at 623. See , In re Estate of Be rry , 277 I ll. App. 3d 1088, 1093, 661 N.E.2d 1150, 1154 (1996) ( aver ments of af

fidavit that defe ndant knowing ly

provided fa lse information to dec edent to induce her to c hang e her will were not offe red f or their truth, but ra

ther for their fa lsity); People v . Quick, 236 I ll. App. 3d 446, 452, 603 N.E.2d 53, 58 (1992) (hea rsay exception permits out-of-c ourt statements to prove a decla rant’s state of mind, emotions or sensation whe n state of mind is at issue). The rationale for this exception is based on nee d, particula rly when a decla rant ha s died or bec ome mentally incompetent and the decla rant’s state ment is the only direc t evidence of the his intent. 4 C.. Fishman, Jones on Evidence § 29:24 ( 7th ed. 2000). In her so- called “ GiftingReport,” Hor an first identifies the issues under c onsideration, namely : (1) whe ther the w ard unde rstood the documents she signed on Nove mber 6, 2006; (2) (2000), c iting People v . Speight , 222 I ll. App. 3d 766, 771, 584 N.E.2d 392, 396-98 (1991)
. Although a

court may

take judicial notice of matters of rec ord in its own proce eding , this cannot result in admitting hea

rsay evidenc e whe re it would otherw ise be prohibited. In re A.B. , 308 I ll. App. 3d 227, 237, 719 N.E.2d 348, 356 (1999)
. 271-09-0976

whether the war d had the menta l capa city to gif t her re sidence ; and (3) whether the war d was unduly influence d by

the re cipient so as to invalidate the g ift. Horan ne x t review s the statements attributed to the var ious persons interview ed. Police off icer Fuda cz, who met with Michalak on J anuar y 30, 2007, repor

ted Michalak’s conf

usion reg ardingthe power of attorne y

she purpor

tedly had sig ned. Similarly , Be rnade tte Ba ran’ s statements hig hlighted Mic halak’ s confusion whe n she attempted to a dd Bonnie Huff a s a bene ficiar y on her Prospe ct B ank ac counts in May 2007. Trac ey Fondr en, the soc ial worke r who visited Michala k on Fe bruar

y 9, 2007, one month afte r the war d was told of Huf

f’s e ffor ts to withdraw funds fr om her a ccounts noted Micha lak nonetheless wa s unawa

re of anyone makingsuch attempts. Additionally , J ean K insinge r informed Hor an that in J une or July 2007, the war d was c onfused a nd could not reme mber what she had sa id a couple of

minutes earlier . We discern that none of these statements wer e off ere d to prove the truth of

the matters a sserted, but ra ther Micha lak’s mental c apac ity to gif t her residenc e to the Ka letas. Converse ly , we f ind other dec larations were inde ed off ere d for a hear say purpose. F or example, Michalak’ s statements to Horan tha t Robert was the one signing all the pape rs bec ause he thought he was g oing to g et the home, but instead she wanted it to g o to Z ag orskis’. L ikewise, stateme nts attributed to J ohn Kura nty that Michalak told him that neig hbors who wa

nted her to sign he r house ove r to them wer e fa lsely callingthemselves cousins
wer e off ere d to prove the truth of

the asser tion . Fur ther, e ven if one wer e to disag ree and find that the third- party statements in Hora

n’s repor t were hear say , the er

roneous a dmission of hearsa y is not grounds f

or re versa l where there is sufficie nt competent evide nce to support the de cision. Blount v. Stroud , 395 I ll. App. 3d 8, 37,
281-09-0976

915 N.E.2d 925, 951 (2009) . Although the Kaleta s assert that the e ntirety of Hora n’s re port consisted of he arsa

y , that notion is di spelled by our re view of the repor

t. Here , apar

t from the
rec itals of the re port, the trial cour t relied on the te stimony

of both guardia

ns, notwithstanding the adver se testimony

offe red by

the Kale tas and Attorne y Kurra nty . See, e.g. , Anderson v. Albe rtoCulver USA, Inc

. , 337 I ll. App. 3d 643, 668, 789 N.E.2d 304, 323 (2003) ( althoug h repor t prepa red by the National Tr ansportation Safe ty Boa rd wa s improperly

admitted into evidence , the
err or wa s harmless whe re the re w as ample othe r evide nce in the r ecor d to support the jury ’s verdic t). We nextaddre ss the Kaleta s’ contention that the tria l court’s finding s that (a) it was able to asce rtain the pre sent desire s of the wa rd, and ( b) the wa

rd desire d to substit ute the guardia n in lieu of the Ka letas as the suc cessor trustee a nd benef iciary wer e ag ainst the manifest we ight of the evidenc e. Althoug h the Kale tas maintain that Z ag orski was re quired to establish her proof by clea r and c onvincingevidenc e, we find the authorities re lied upon are inapposite. In re Estate of Gree nspan , 137 I ll. 2d 1, 24, 558 N.E.2d 1194, 1205 (1990), c ited by the Kale tas, held that the guardia n’s right to discontinue artificial fe edingand hydration re quired c lear and convinc ing evidenc e of the war d’s intent. In re Estate of Austwick, 275 I ll. App. 3d 769, 775, 656 N.E.2d 779, 784 (1995), involved a war d’s desire to rec eive a nticonvulsive therapy

under a statute that expressly stated the burde n to be clea r and c onvincingevidenc e. As we are not presente d here with any decisions to withdraw life -sustainingtreatment or to invoke extraordinary mental hea lth
measure s, a cle ar a

nd convincingstandard of proof would be inappropriate. Instead, we conclude that Z ag orski had the bur den of e stablishing the a lleg ations of her petition by

a pre pondera

nce of
291-09-0976

the evidenc e. Northw estern Unive rsity v. Mc Loraine , 108 I ll. App. 3d 310, 321, 438 N.E.2d 1369, 1376 (1982). Moreove r, our pr ece dent instructs that we r eview the trial court’ s judgme nt under the manifest we ight of

the evidenc e standa

rd. See In re Estate of Vail , 309 I ll. App. 3d 435, 438, 722 N.E. 2d 248, 251 (1999) (“In revie winga probate cour t’s deter mination, all reasona

ble presumptions are made in fa vor of the tr ial court, the a ppellant has the bur den to af firmatively show the er

rors a lleg ed, and the judgme nt will not be rever sed unless the finding s are clea rly and palpably contra ry to the manifest we ight of the evidenc e”) . A trial cour t’s rulingis ag ainst the manifest we ight of

the evidenc e only

if it is unreasonable , arbitra ry and not base d on the evidenc e, or when the opposite c onclusion is clear ly evident fr om the rec ord. In re Estate of Savio , 388 I ll. App. 3d 242, 247, 902 N.E.2d 1113, 1118 (2009), c iting Smith v. Marvin , 377 I ll. App. 3d 562, 569, 880 N.E.2d 1023, 1030 (2007) . Under the manife st weig ht standard, we g ive defe renc e to the trial c ourt as the f inder of f act be cause it is i n the best position to observe the conduct a nd demea nor of the pa

rties and the w itnesses. In re D.F

. , 201 I ll. 2d 476, 498-99, 777 N.E.2d 930, 943 (2002) . “A r eviewingcourt, ther efor e, must not substi tute its judgment for that of the trial c ourt reg ardingthe cr edibility of witnesses, the w eight to given to the e vidence , or the infere nces to be drawn.” In re D.F

. , 201 I ll. 2d at 499, 777 N.E.2d at 943. As noted, Hora

n’s re port assumed the issues to be a ddresse d in the hear ing on Z ag orski’s petition were whether

Michalak, on N ovember

6, 2006, had the menta l capa city to make a g ift and execute le g al documents a nd whether

Michalak w as unduly

influence d by

the re cipients so as to invalidate the g ift. Yet, the trial c ourt reje cted Hor an’s a ssumptions , “that is not what we are
301-09-0976

here to determine,” and instead f ocused on the guardia

n’s re quest to amend the trust: “W e ar e here to deter

mine whether or not the guardia n now has the authority to reque st of this court, and the court thi n k s t h er e i s a rea son for chang ing cer tain conditions or terms of the tru s t . Nu m ber one being who is the succe ssor trustee. Also number two, who take s upon the dea th.” Recognizi ngthat Z ag orski’s petition was pre sented pursua nt to section 11(a) -18(a -5) of the Act ( 755 I L CS 5/ 11(a) -18(a -5) ( West 2008)), the cour t corre ctly

observe d that even though a guardia n is in place, the w ard ma y reta in decisionable c apac ity and has the basic right to offer pref ere nces to whic h the cour t is required to g ive substantial weig ht. The cour t rec og nized that the sec tion vested the guardia n with the rig ht to amend a trust, with the proviso that the “ guardia n shall also indicate in the pe tition any planned disposition is consist ent with the intention of the
war d insofar a s they

can be asce rtained.” Ba sed esse ntially

on the testimony

of Z ag orski and Hor an, the c ourt deter mined that Michalak did not wa

nt the Kaleta s to ge t her home. While observingthat Z ag orski had had limit ed conta ct with her a unt over the year s, the court none theless found he r testimony to be
cre dible. The c ourt noted Z ag orski’s re sponse to the bank whe n questions arose c oncer ning Michalak’ s acc ount and that upon findingMichalak’ s house to be in disarr ay in May 2007 she acte d appropr iately

by bring ing he r aunt to her

home. The c ourt furthe r cr edited stateme nts attributed to the wa

rd in Hora

n’s re port that she did not want her house to g o to Robert “no more,” that he wa s “a little crook,” and instead w anted he r house to g o to her niec e and he r husband, Jackie and Ke n Z ag orski. In assessingthe Kale tas’ testimony , the cour t found
311-09-0976

questionable the a ssertion that they continued to visit Michalak three to four times a we ek af ter moving in 2003. The court a lso found “unusual” J olanta Ka leta’s de nial that Michalak dr ove, g iven Kura

nty ’s testimony

that Michalak ha d prese nted a dr iver’s lice nse at their me eting
. Although the court re fer

red to other

individuals mentioned in Horan’s r eport, those r efe renc es did not address Micha lak’s dispositive wishes conce rningher trust. The Ka letas nonethe less asser t that the trial judg e over looked contra ry evidenc e supporting Mic halak’ s orig inal intention to gift her home to them. The Ka letas maintain that the only evidenc e introduce d at trial indicate d that they had bee n “excee dingly

g ood to Ms. Michalak.” In challeng ing the statement attributed to Micha lak that Robert Ka leta wa s a “little crook,” they

arg ue that no fa ct finder

should have take n the war d’s comment at f ace value g iven the testimony

that the war d was then strug g ling to eve n reme mber Rober t Kaleta. T he Ka letas likewise submit that no testim ony was pre sented sug g estingthat Robert war rante d that descr iption. Additi onally , while re cog nizi ngthat the trial cour t’s rulingwas pre fac ed on the notion that an adjudicate d war d can still offe r a dispositional pref ere nce, the court ig nored evidenc e that as of

J une 15, 2007, prior to a ny inquiry from Hor an, Dr . I

brahimi found Micha lak to be totally

“inca pable of makingpersona l or financ ial decisions.” Notwithstanding the fore g oing obse rvations, we f ind that the trial court c onducted a meaning ful revie w of the e vidence and made appropr iate dete rminations reg arding the cr edibility of the witnesse s, the weig ht to be g iven to the evidenc e and the infere nces to be drawn there from. Although the court did re ly in part on hea

rsay prese nt in various repor

ts, there wa s sufficient competent e vidence to support the decision re ndere d. We theref ore c onclude that the c ourt’s
321-09-0976

finding s and judg ment wer e not ag ainst the manifest we ight of the evidenc e. L astly , the Kale tas maintain that the circ uit court err ed in enter ing a n order approvinga
reve rse mortg ag e on Micha lak’s prope rty in trust, arguing that once notice of appe al was f iled the circ uit court was diveste d of jurisdiction to enter the or der. I n support of the proposition that upon the filingof a notice of appe al, a c ircuit court is divested of jurisdiction to enter any

order s involving a matter of substanc e and r etains jurisdiction only for matter s independe nt of and collater al to a judg ment, the Kale tas cite to W ierzbicki v. G leason , 388 I ll. App. 3d 921, 906 N.E.2d 7 (2009) . In W

ierzbicki , we he ld that the circ uit court lost jurisdiction after def endants filed a notice of appe al from the c ourt’s orde r re instating the c ase a fter a dismiss al for w ant of prosec ution and all proce eding s were stay ed pending the re solution of that appeal. How ever , due to the conduct of

plaintiff' s counsel in askingthe cler k of the c ircuit court to dele te an or der, the court subseque ntly

enter ed an or der dismissing the pla intiff’s ca se. The pla intiff filed a notice of appea l challeng ing that ruling a s well. We held that the later order of the c ircuit court wa s void and orde red it vac ated. W ierzbicki , 388 I ll. App. 3d at 931, 906 N.E.2d at 17. Wit hout further

argument or citation, the Ka letas asse rt that the enc umbranc e of the proper ty is not independent of or

collater al to the judg ment enter ed her e. Z ag orski argues the subsequent orde r g rantinga re verse mortg ag e addr esses Micha lak’s own use of her benef icial interest in the prope rty , which wa s not the issue decide d in this case. B oth parties fur ther make ref ere nces to purpor

ted fa cts without citation to the recor d in contrave ntion of Supreme Court Rule 341(e) (6) ( 188 I ll. 2d R. 341(e)(6) ) and to proc edura l matters not of re cord be fore us
occur ringafte r the notice of appe al has be en filed, w ithout seekingour leave to supplement the
331-09-0976

rec ord upon motion supported by aff idavit under Supreme Court Rule 362 (155 I ll. 2d R. 362(a), (b)) . We point out t o both parties that “the rules promulg ated by the supreme court a

re, in fa ct, rules, and not a dvisory

sug g estions for conduc t of the lower courts and the bar.” Roberson v. Liu , 198 I ll. App. 3d 332, 335, 555 N.E.2d 999, 1001 (1990) c iting People v . W ilk , 124 I ll. 2d 93, 103, 529 N.E.2d 218, 221 (1988)
. Supreme Court Rule 305(b) pr ovides that a c ircuit court “ may” stay the enf orce ment of a nonmoney

judgme nt. 210 I ll. 2d. R. 305(b). The powe r to g rant stay s is discretionary
. Horvath v. Loesch , 87 I ll. App. 3d 615, 620, 410 N.E.2d 154, 158 (1980), c iting City of Chi cago v. Cosmopolitan N

ational Bank , 77 I ll. App. 3d 212, 220, 395 N.E.2d 1070, 1075 (1979). O rder s enter ed by

a trial c ourt afte r the filingof a notice of appe al ar e valid if substantive issues on appea l are not affe cted a

nd if the nature of the a

ppeal is not altere d. Homeowne rs Organized to Protect the Env ironment, Inc. v . First Nat ional Bank of Barrington , 167 I ll. App. 3d 714, 720, 521 N.E.2d 1202, 1206 (1988) . Her e, the judg ment below dete rmined the status of the K aletas’ prior intere st, where they wer e mer ely

succe ssor bene ficiar ies as re mainderme n of Michalak’s trust. Michalak re mained the pr imary benef iciary of her trust, and any

action take n with respec t to her intere st does not affe ct the Ka letas’ issues on a ppeal. Thus, the tr ial court did not abuse its discretion in deny

ing the stay . CONCLUSI ON For the fore g oing r easons, we aff irm, the order

of the c ircuit court a

mendingBozena Michalak’ s revoc able trust and de nying the stay of the c ourt’s judg ment. Affir med.
341-09-0976

HOWSE and L AVI

N, J J ., concur .

35