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03/04/88 In Re Marriage of Harold R. Pick

March 4, 1988

IN RE MARRIAGE OF HAROLD R. PICK, PETITIONER-APPELLANT, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

DOLORES T. PICK, Respondent-Appellee (Roger A. White,

Appellee)

521 N.E.2d 121, 167 Ill. App. 3d 294, 118 Ill. Dec. 53 1988.IL.298

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., the Hon. Jane D. Waller, and the Hon. Harry D. Hartel, Jr., Judges, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Petitioner, Harold R. Pick, appeals from several orders entered by the trial court during the dissolution proceedings involving petitioner and respondent, Dolores T. Pick. Three issues are presented for our consideration: (1) whether the trial court erred (a) in appointing a "sequestrator" to remove nonessential property from the marital home for safekeeping, and (b) thereafter ordering the sequestrator to arrange for the sale of certain items in order to satisfy various orders and judgments entered by the court against petitioner; (2) whether the attorney fees awarded to respondent's attorney were excessive; and (3) whether the court's distribution of certain property was an abuse of discretion.

Respondent has not filed a brief in this court; however, we shall consider the merits of the appeal as it pertains to respondent under the guidelines set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128. Appellee, Roger White, respondent's former attorney, filed a brief responding to petitioner's attorney fees argument. We note that appellee's brief fails to comply with Supreme Court Rule 341 in several respects; most importantly appellee has failed to cite to the pages of the record relied on in support of his argument. 107 Ill. 2d R. 341(e)(7).

Petitioner and respondent were married on June 2, 1978. On July 8, 1982, petitioner filed a petition for dissolution of the marriage. On August 15, the court entered an order restraining either party from removing property from the marital home. In early December, a substantial amount of property disappeared from the marital home. On December 10, the court, at the request of respondent and with the acquiescence of petitioner, appointed attorney Stephen Katz as a "sequestrator" to remove nonessential property from the marital home for safekeeping. The order appointing Katz provided that Katz would serve without bond, petitioner would be responsible for the payment of Katz' fees, and Katz would not be liable for any act done in good faith. Because of the substantial losses, Katz proceeded to the marital home within hours of entry of the order and arranged for many items to be placed into storage.

Thereafter, the court on various occasions ordered Katz to remove certain of the items from storage, arrange for the sale of the items at an auction house, and apply the proceeds to an assortment of debts owed by petitioner, including temporary maintenance arrearages and Katz' fees. On December 12, 1983, Katz filed a report indicating that an auction sale had been conducted at Hanzel Galleries. The proceeds were sufficient only to compensate respondent for a portion of the temporary maintenance owed.

Meanwhile, petitioner's former attorney, Berle Schwartz, petitioned for approximately $20,000 in attorney fees. Schwartz requested the court order Katz to arrange for the sale of some of the items held in storage for purposes of satisfying the fees owed. The court entered a judgment in favor of Schwartz and complied with Schwartz' request to have property sold. Enforcement of the judgment was stayed by this court. Thereafter, Schwartz served citations to discover assets on Katz and the storage company in an effort to enforce the fee judgment. After a hearing on the return of the citations, the court again authorized Katz to arrange for the sale of certain items and to disburse the proceeds to the storage company for accumulated charges, to Schwartz for the attorney fees owed, and to Katz for services rendered. Petitioner's motion to quash the citations and vacate the order was denied. His interlocutory appeal was dismissed; however, the order authorizing the sale was stayed by this court pending a final order in the cause.

During the course of the proceedings several hearings were conducted relative to respondent's request to obtain attorney fees from petitioner for work performed on respondent's behalf by Roger White. The court awarded fees to White on three separate occasions. The total amount awarded was $34,462.

In its final judgment dissolving the marriage, the court determined the personal property remaining in the marital home was marital property that would be awarded to respondent. I

Petitioner's first argument challenges the court's initial appointment of attorney Katz, the propriety of the orders authorizing Katz to arrange for the public sale of various items in order to satisfy assorted debts found to be owed by petitioner, and the sufficiency of Katz' final report. The first two challenges are predicated on petitioner's claim that recent amendments to the Code of Civil Procedure have effectively precluded the courts from resorting to a sequestrator or sequestration as a means of enforcing court orders or judgments. The third challenge seeks a more thorough final inventory and accounting.

The first matter to be resolved is the propriety of the court's appointment of attorney Katz to serve as a "sequestrator" and in that capacity arrange for the safekeeping of nonessential personal property remaining in the marital home. The court's appointment of Katz, a neutral attorney, was in response to the disappearance of a large amount of property from the marital home in violation of an order restraining either of the parties from removing any of the property. The appointment was made at the request of the respondent and with the acquiescence of petitioner. The purpose of the appointment was to prevent further dissipation of the property located in the marital home. Because responsibility for the disappearance of the property was in dispute, the appointment of Katz to safekeep the remaining property was beneficial to both parties. In our opinion, these circumstances warranted the appointment of a neutral party to preserve the remaining property pending final distribution.

Petitioner contends the authority to appoint a "sequestrator" has been abrogated. We will discuss this contention at length in our upcoming Discussion of the court orders authorizing Katz to arrange for the sale of property to satisfy debts owed by petitioner. At this juncture, suffice it to say that in our view Katz' role at the time of his initial appointment was consistent with that of a receiver, rather than a sequestrator. ...


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