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Anderson v. Anderson

MAY 20, 1975.

KATINA L. ANDERSON A/K/A KATHI ANDERSON, PLAINTIFF-APPELLANT,

v.

FRANK T. ANDERSON, JR., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH E. WILSON, Judge, presiding.

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

Katina L. Anderson (hereinafter plaintiff) appeals an order of the circuit court of Cook County which denied her petition to vacate an order granting Frank T. Anderson, Jr. (hereinafter defendant) leave to sell certain corporate stock. The order granting defendant leave to sell the stock was entered pursuant to a separate maintenance decree between these same parties. Plaintiff petitioned the trial court to vacate the order because (a) she had no personal knowledge of the pending motion, and (b) she was the alleged owner of the stock. Her petition to vacate was denied after the court heard arguments on the petition. Plaintiff appeals that decision. While this cause was pending in this court, defendant made a motion to dismiss the appeal which we took with the case. Defendant further requests this court to tax plaintiff with defendant's attorney's fees and reasonable expenses incurred in defending this appeal.

The issues considered by this court in the determination of this appeal are:

(1) is the order appealed from properly before this court?

(2) did the trial court improperly adjudicate property rights in a separate maintenance proceeding?

(3) did the trial court abuse its discretion in denying plaintiff's petition to vacate the order granting defendant leave to sell certain corporate stock?

(4) should the appellate court impose sanctions on plaintiff for bringing this appeal?

Plaintiff and defendant were married on April 9, 1965, in Chicago, Illinois. On November 8, 1971, plaintiff, a resident of Cook County for at least 1 year prior to her action, filed a complaint for divorce against defendant. This complaint was subsequently amended to become a complaint for separate maintenance. Defendant filed an answer and counterclaimed for divorce.

In her verified complaints, plaintiff alleged defendant owned stock in Chicago Cutting Die Company (Company) and requested that this stock be sequestered for possible payment of sums due plaintiff upon termination of this litigation. Defendant admitted ownership of the stock in his pleadings, and it was disclosed at trial that plaintiff held a voting trust certificate for the stock.

On April 18, 1974, a decree for separate maintenance was entered in plaintiff's favor, denying defendant's counterclaim for divorce and awarding plaintiff certain alimony and back support payments and attorney's fees, as well as other financial benefits. The decree ordered plaintiff to surrender the voting trust certificate for the stock to her attorney so that the voting trust agreement under which the stock was held might be terminated. The underlying stock certificates were to be held by defendant's attorney subject to further order of the court and subject to "* * * application by Frank Anderson, Jr., for possible sale of such stock in order to satisfy the obligations of the defendant under this Decree and other obligations of the defendant." The trial court reserved jurisdiction of this cause until the terms of the decree were fully satisfied.

On May 23, 1974, defendant filed a "Petition to Sell Stock Pursuant to Decree." Defendant served plaintiff's attorney of record with notice of the petition. The attorney appeared at the hearing on defendant's petition, but he failed to notify plaintiff prior to the said hearing, and she therefore was neither present at, or consulted with her attorney prior to the hearing. After a hearing the trial court granted defendant leave to sell said stock and specified how the proceeds of that sale were to be distributed.

On June 4, 1974, plaintiff petitioned the trial court to vacate the order giving defendant leave to sell the stock. In said petition plaintiff alleged she had no personal knowledge of the pendency of defendant's May 23, 1974, petition to sell the stock; that the adjudication of property rights was beyond the scope of a separate maintenance proceeding; that she was the true owner of the stock; and that the record contained no evidence to substantiate that the proposed sale price was a fair and reasonable value for the stock. After a hearing on plaintiff's petition, the court denied her request to vacate the order. Plaintiff continued in her refusal to turn over the voting trust certificate until a petition to show cause was entered against her. She surrendered the voting trust certificate on July 9, 1974-2 weeks after filing her notice of appeal from the denial of her petition to vacate the circuit court order allowing defendant to sell 231 shares of stock in the Company. Defendant requests this court impose sanctions on plaintiff for bringing this appeal.

I.

During the pendency of the appeal, defendant filed a motion to dismiss the appeal alleging the appeal was moot by virtue of the plaintiff accepting the benefits of a final decree, and that for failure to take an appeal from the final decree, the matter is res judicata. Plaintiff's appeal is before this court as the result of the trial court's refusal to vacate not a final decree, but an order entered to implement said ...


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