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08/27/87 In Re Marriage of Diane Kathleen Fredricksen

August 27, 1987

IN RE MARRIAGE OF DIANE KATHLEEN FREDRICKSEN,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, and WILLIAM ROBERT FREDRICKSEN,

Respondent-Appellant

512 N.E.2d 1080, 159 Ill. App. 3d 743, 111 Ill. Dec. 539 1987.IL.1254

Appeal from the Circuit Court of Kane County; the Hon. Melvin E. Dunn, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Following the judgment of dissolution of the marriage between Diane Kathleen Fredricksen (wife) and William Robert Fredricksen (husband), husband was found in contempt of court on September 11, 1986, for violating a previous order in the dissolution proceedings and was sentenced to the Kane County jail until he purged himself by paying $1,300 to his former wife for his default of a mortgage payment. Notice of appeal was filed by husband's attorney, Raymond T. Brasel, on October 14, 1986. Two issues are raised on appeal: (1) that the record fails to warrant a finding of indirect civil contempt, and (2) that the provision for purging the finding of contempt was improper.

Wife filed a motion to dismiss the appeal on the ground of mootness, attaching a death certificate for husband which discloses that he committed suicide on September 21, 1986. Attorney Brasel filed an objection to the motion to dismiss stating that the appeal survived husband's death because of the stigma attached to the finding of contempt and the assessment of the $1,300 as "purge money." We ordered that the motion and objection be taken with the case and, subsequently, directed attorney Brasel to respond to this court as to his authority to file a notice of appeal and a brief on behalf of husband where the record indicates that husband died before the notice of appeal was filed and no substitution of party for husband is of record. Brasel responded that he was authorized by husband prior to his death to appeal and no substitution of parties was undertaken because Brasel believed the appeal was properly in husband's name and in his interest.

Assuming that the finding of civil contempt and the imposition of the $1,300 purge money which was paid by husband to secure his release from jail is an action which does not abate the appeal upon husband's death (see Hannah v. People (1902), 198 Ill. 77, 82, 64 N.E. 776), the appropriate issue is whether husband's attorney may pursue this appeal in husband's name without substitution of a proper party.

Substitution of parties in civil actions in the circuit court is governed by section 2-1008 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1008) which provides, in pertinent part, as follows:

"(b) Death. If a party to an action dies and the action is one which survives, the proper party or parties may be substituted by order of court upon motion. If a motion to substitute is not filed within 90 days after the death is suggested of record, the action may be dismissed as to the deceased party.

If the death of a party to a personal action is suggested of record and no petition for letters of office for his or her estate has been filed, the court, upon motion and after such notice to the party's heirs or legatees as the court directs, and without opening of an estate, may appoint a special administrator for the deceased party for the purpose of prosecuting or defending the action. If a legal representative is appointed for the estate before judgment is entered, and his or her appointment is suggested of record in the action, the court shall order that the representative be substituted for the special administrator.

If a judgment is entered or the action is settled in favor of the special administrator, he or she shall distribute the proceeds as provided by law, except that if proceeds in excess of $1,000 are distributable to a minor or person under legal disability, the court shall allow disbursements and fees to the special administrator and his or her attorney and the balance ...


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