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Milenkovic v. Milenkovic

OPINION FILED JANUARY 30, 1981.

DUSANKA MILENKOVIC ET AL., PETITIONERS-APPELLEES,

v.

MILAN MILENKOVIC, RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. FLECK, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a marriage dissolution action brought by respondent's wife, who was allegedly murdered by respondent during the pendency of the action. Following the wife's death the circuit court granted a neighbor's petition for temporary custody of the two minor children, Dusanka and Radomir, and ordered the transfer of respondent's property interest to a trustee for the benefit and support of the children. The trial court denied respondent's motion to vacate all orders entered after the wife's death. On appeal, he contends that (1) because a dissolution action abates upon the death of a party, the trial court lost jurisdiction over the entire action and thus its subsequent orders are void; (2) he was deprived of property without the due process of guarantees of notice and the opportunity to be heard. We affirm in part and reverse in part. The pertinent facts follow.

Proceedings Prior to Radosava Milenkovic's Death

On November 3, 1978, Mrs. Milenkovic (petitioner) filed an action for dissolution of marriage pursuant to the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.). At the same time, she obtained a temporary restraining order against respondent on the grounds that he had threatened to injure or kill her. On November 5, 1978, respondent was personally served with summons and with notice of the petition for preliminary injunction. The circuit court granted Mrs. Milenkovic's petition on November 9, 1978, enjoining respondent from interfering with petitioner and from damaging or disposing of the marital home and its furnishings. Petitioner's request for sole possession of the marital home and other relief was continued to December 1, 1978.

On November 27, 1978, respondent filed his answer and appearance, through his attorneys. At the December 1 hearing on the petition for temporary relief, the court granted petitioner's request to appoint an attorney to represent the interests of the parties' minor children.

On April 10, 1979, after giving emergency notice to the attorneys of respondent and of the children, petitioner filed an emergency petition for a rule to show cause against respondent for violating the injunction by allegedly attempting to kill her. Further, she requested exclusive possession of the marital home. During an in-chambers hearing on the following day, the parties' children testified as to certain violent acts of respondent that they had witnessed. The children stated they had seen their father strike their mother, attempt to stab her, and point a gun at her. The court found respondent to be in wilful contempt and ordered the sheriff to arrest respondent and bring him before the court.

On April 12, 1979, both parties and their attorneys were present at a hearing on the emergency petition. Respondent's counsel was allowed to withdraw his appearance on the basis that his client had lied to him on all material matters. *fn1 After hearing the parties' testimony, the court awarded petitioner custody of the children and exclusive possession of the marital residence.

In August of 1979 the parties agreed to give respondent visitation rights and the court entered an order to that effect. In September 1979, respondent again allegedly threatened petitioner, who filed another rule to show cause. Her petition alleged that respondent again threatened bodily harm to her and the parties' daughter; that subsequent to the April 12 order awarding petitioner custody and exclusive possession of the marital home respondent had harassed and threatened petitioner's and the children's safety; that respondent had also violated the terms of the visitation order. The court continued the hearing on this petition until September 18, but ordered respondent to immediately desist from communicating with or approaching petitioner and the children pending the full hearing.

On September 12, 1979, before the hearing could be held, petitioner was shot to death. Respondent was charged with her homicide and incarcerated.

Proceedings Subsequent to Radosava Milenkovic's Death

On September 13, 1979, petitioner's friend and neighbor, Veronica Aglikin, filed a petition for custody of the two minor children pursuant to section 601(b)(2) *fn2 and other sections of the Act. She had taken the children into her home after the death of their mother. Mrs. Aglikin's attorney, who had previously represented petitioner, informed the court that his firm had received a letter from respondent's attorney authorizing appropriate arrangements for petitioner's funeral. This letter, received into evidence, also stated that respondent desired that his children continue to reside with the neighbor they had stayed with during the previous night until other arrangements could be made. The court found that an emergency existed and waived formal notice of this September 13 proceeding. The court also noted that respondent had received actual notice. Counsel for the children was present. After hearing Mrs. Aglikin's testimony and that of one of the children, the court awarded temporary custody to Mrs. Aglikin and continued the matter to October 10, 1979.

On October 1, after serving notice on respondent's attorney and on the children's representative, Alan Drucker, Mrs. Aglikin filed a petition for emergency temporary relief. On that day, neither respondent's attorney nor Drucker was present, although Drucker had informed Mrs. Aglikin's attorney that he had no objection to the petition. Pursuant to the petition, the court then awarded certain sums to Mrs. Aglikin for the expenses she incurred in caring for the children. The court further ordered that $60 a week from respondent's income be paid to Mrs. Aglikin for the children's support. Remaining matters were continued to October 10, 1979. On that day the cause was again continued to October 17, 1979, without further notice.

On October 17, 1979, two additional petitions and a motion were filed. Notice of these matters was served on respondent's attorney on October 15. One petition requested that proceeds from a life insurance policy on plaintiff be assigned so that funeral expenses could be paid. The other petition, filed by Drucker on behalf of the children, sought the establishment of a trust fund for the benefit of the minor children because defendant had refused to pay support as ordered. The marital residence was to be the trust corpus. Also, Mrs. Aglikin filed a motion requesting the court to endorse certain checks made payable to respondent because he had refused to comply with the court's October 1 order to endorse the checks for support of his children. The court continued these matters to October 22, 1979, without further notice. During the October 22 hearing, the court granted Drucker's petition to place the marital residence in trust and to permit it to be sold, the proceeds to be held for the benefit of the children. The court named the Cosmopolitan National Bank of Chicago as trustee. Further, the court ordered that respondent be given 14 days in which to execute the necessary documents to transfer the property to the bank as trustee. If respondent failed to comply with this order, the court provided that a judge of the land title division of the circuit court would execute the deeds. Finally, the October 22 *fn3 order continued the petition involving the life insurance proceeds and all remaining matters to November 7, 1979, without further notice and provided that there was no just reason to delay the enforcement of or appeal from the order.

On November 2 the bank served respondent's attorney with notice of its motion to have the appraisal of the marital home approved and to list the house with a realty company. On November 7, this motion was considered along with the other matters at the status report. Drucker informed the court that someone from the criminal division of the court informed him that respondent might be obtaining a new attorney and that this attorney requested a continuance of the pending ...


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