Appeal from the Circuit court of Cook County; the Hon. Aubrey
F. Kaplan, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Fryda Shehade (Fryda) filed a petition in the Cook County circuit court for dissolution of her marriage to Mesbah Shehade (Mesbah), distribution of their marital estate, and custody of their child. During the pendency of the proceeding the trial court entered an order which enjoined Mesbah from transferring, encumbering, or otherwise disposing of any of the property which belonged either to Fryda individually or to Fryda and Mesbah jointly.
Thereafter Mesbah assigned to his brother, Sabhi Chehade (Sabhi), Mesbah's interest in an agreement for the purchase of certain property located in Chicago and held in a land trust. Mesbah had entered into the agreement for the purchase of the property during the pendency of the dissolution proceeding.
Roughly seven months after the assignment, the trial court entered an order which enjoined Mesbah from conveying, transferring, assigning, or otherwise dealing with the property until further order of court. The order was entered pursuant to Fryda's motion therefor. Apparently, neither Fryda nor the trial court was aware of Mesbah's assignment of the property to his brother at the time the order was entered.
After Fryda learned of the assignment, she filed with the trial court a petition for rule to show cause, to add additional parties, and for other relief. In the pleading, Fryda contended that Mesbah's assignment of his interest in the Chicago property to Sabhi constituted a fraud upon her right to and in the property, and that the assignment was colorable, illusory, and a sham. As ultimately amended, Fryda's petition requested that the assignment be declared null and void, that Sabhi be made an additional party defendant, and that he be directed to reimburse her for all rents collected from the property since the trial court's order which enjoined Mesbah from assigning his interest in the property.
Sabhi answered Fryda's petition and denied that the transaction had been colorable, illusory, or a sham or fraud upon Fryda's interest. Following a hearing at which Fryda, Sabhi, and Sabri Shehade (a nephew of Mesbah and his brother Sabhi) testified, the trial court found that the transaction was a sham designed to deprive Fryda of her interest to and in the premises. The court held the assignment null and void and ordered Sabhi to account to Fryda for rents he had collected on the premises. The trial court later denied Sabhi's motion to reconsider its order. Sabhi appeals.
The parties raise the following questions for our review:
1. Whether the trial court's determination that Mesbah's assignment of his interest in the property to Sabhi was a sham, illusory, and colorable, was against the manifest weight of the evidence;
2. Whether the trial court acted beyond the scope of its authority under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 101 et seq.) where it held the assignment null and void and ordered Sabhi to account to Fryda for rents collected upon the premises.
The record reflects the following pertinent pleading and testamentary evidence.
According to Fryda's petition for dissolution of marriage and other relief which was filed on October 13, 1982, Fryda and Mesbah were married on March 5, 1974; one child, age seven, was born of the marriage. Fryda claimed that during the course of the marriage, Mesbah acquired various assets which were marital assets, "notwithstanding their standing in the name of [Mesbah], any alias of [Mesbah], or any nominee on his behalf."
Mesbah's answer to the petition denied in material substance the allegations of the petition, and requested that the same be dismissed.
Roughly four months after her petition for dissolution was filed, Fryda presented to the court her emergency petition for injunctive and other relief. In it she alleged in substance that Mesbah had caused her physical abuse; had attacked her automobile and caused it damage to the extent that it was inoperable; and that Mesbah had "bragged" to Fryda "that he was in the process of selling certain parcels of real estate acquired during the marriage, and that there would be nothing left for [Fryda] to obtain her share of in this case." Fryda further alleged that she therefore feared that Mesbah would waste, sell, convey, transfer, assign, hide, conceal, destroy, encumber or otherwise dissipate the marital estate of the parties unless he were restrained and enjoined from doing so during the pendency of the cause.
Based upon these allegations, as well as the arguments of both parties at a hearing upon the petition held on the day it was filed at which both Fryda and Mesbah were present, the trial court entered an order dated February 10, 1983, which granted Fryda's petition. The trial court's order stated inter alia that "each of the parties is restrained and enjoined from wasting, selling, conveying, hiding, transferring, concealing, damaging, destroying, encumbering or otherwise dealing with assets held in his or her name or alias, or in the name of another for the benefit of either party, pending further Order of Court."
Roughly a month and a half later, on March 31, and pursuant to Fryda's petition for a rule to show cause and other relief, the trial court entered an order which directed, inter alia, that a domestic violence order be issued against Mesbah instanter. The agreed order of protest, filed the same day, provided in relevant part that Mesbah was "restrained from transferring, encumbering, concealing, damaging or otherwise disposing of any of [Fryda's] property or joint property of [Fryda and Mesbah]." The order stated an expiration date and time of March 31, 1984, at 4 p.m.
Thereafter, between April and September, 1983, the parties litigated matters pertaining to temporary custody of the minor child, temporary maintenance and child support, and attorney's fees. Temporary custody was awarded to Fryda in mid-July. In early September, Fryda filed an emergency petition for rule to show cause and other relief in which she alleged that Mesbah had exercised visitation with the parties' child on August 27, but had failed to return the child to Fryda's custody. She claimed that she had been informed and believed that Mesbah had removed the child from the State of Illinois and the United States.
A rule was entered against Mesbah on the same day, made returnable on September 19, 1983. Mesbah failed to appear on the appointed day. His attorney of record motioned the court to withdraw as Mesbah's counsel; the affidavit in support of the motion stated in pertinent part that the attorney believed, "[u]pon information and belief, [that] [Mesbah] is not any longer living in the United States of America." An attachment order ...