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Klingman v. Levinson

NOVEMBER 22, 1972.

FRANCINE KLINGMAN, PLAINTIFF-APPELLEE,

v.

MELVIN E. LEVINSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding.

MR. PRESIDING JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 8, 1973.

This is an appeal from orders of the Circuit Court ordering defendant, an attorney and trustee of certain stocks and bonds, to present an accounting of the trust assets to the court and to turn the trust res over to a corporate escrowee pending litigation, and an order finding defendant in contempt of court for refusing to carry out these instructions. On appeal the defendant argues that the court improperly terminated the trust without hearing evidence, that there was no proof that an accounting was owed the settlor of the trust (plaintiff), that the contempt order was improperly entered, and that a petition for change of venue was improperly denied.

We affirm.

On July 19, 1967, the plaintiff as settlor entered into a written trust agreement whereby she designated defendant, her attorney, trustee. The agreement recited that the trust was necessitated by the settlor's marital problems, and provided that certain stocks and bonds, purchased for the benefit of her children, Lee and Mark David Klingman, but entrusted to settlor to be used for the education and maintenance of the children at her discretion, plus other bonds registered in her name, be placed in trust. The settlor and her children were named beneficiaries under various provisions of the trust. The trust was expressly revocable, but contained a clause which recited:

"In the event that any person makes or asserts any claim against the trust property and institutes legal proceedings * * * the power to revoke, alter, or amend this trust should immediately cease and said trust shall become irrevocable."

On February 2, 1970, plaintiff filed a formal notice of revocation with the trustee requesting termination of the trust, a consequent transfer of assets and an accounting.

When the request was not complied with, plaintiff brought a complaint in the chancery division wherein she petitioned the court to mandate an accounting from defendant and to order the trust terminated.

Defendant moved to dismiss the complaint for failure to join indispensable parties (the children) and answered that plaintiff failed to turn over all assets as per the trust agreement, that a demand made upon defendant prior to notice of revocation made the trust irrevocable, and finally, that defendant was owed reasonable attorney's fees in regard to the trust. Defendant also counter-claimed for $10,000 in attorney's fees.

Joseph Klingman, plaintiff's husband, and Lee and Mark Klingman, her children, filed a petition of intervention which was allowed by the court. In their answer they alleged that because the funds in question were the property of Lee and Mark Klingman, that an accounting should issue, and that the funds should be deposited with the Northern Trust Company pending final disposition of the matter.

On July 7, the trial court entered an order which recited in part:

"On Notice Duly Served and Verified Petition filed this date with leave of Court and By Agreement of the Parties By their Attorneys of Record it is ordered as follows: * * *." (Emphasis added.)

The court ordered defendant to turn over the trust corpus to the Harris Trust & Savings Bank of Chicago which was to hold the funds in escrow pending further order of the court. It also ordered defendant to cease and desist from any other dealings with the trust, and to render an accounting within two weeks.

When defendant had taken no action in accordance with this order by July 24, 1970, plaintiff and the intervening parties petitioned the court to issue a rule to show cause why defendant should not be held in contempt. The court issued its rule to show cause on July 30, returnable August 4. A writ of attachment was issued August 5 but stayed until August 11. On ...


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