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02/23/94 MARRIAGE HERMAN DANIEL SLOANE

February 23, 1994

IN RE MARRIAGE OF: HERMAN DANIEL SLOANE, PETITIONER-APPELLEE, AND JENNYE IRENE SLOANE, RESPONDENT-APPELLANT (ROBERT STEINBOCK-SINCLAIR, APPELLANT).


Appeal from the Circuit Court of Du Page County. No. 88-D-1096. Honorable George J. Bakalis, Judge, Presiding.

As Modified on Denial of Rehearing. Petition for Leave to Appeal Denied June 2, 1994.

Bowman, McLAREN, Colwell

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

This case arises from a 1988 petition for dissolution of marriage filed by petitioner, Herman Sloane (husband). Respondent, Jennye Irene Sloane (wife), commenced garnishment proceedings to enforce certain provisions of the marital settlement agreement which was part of the judgment. The trial court granted husband's motion to quash the garnishment summons. Wife's motion for reconsideration was denied, and a Supreme Court Rule 304(a) finding was entered. Wife filed this appeal, contending: (1) garnishment is a proper remedy to enforce the settlement agreement; (2) the judgment was liquidated and due without contingency; and (3) no emergency existed to quash the garnishment summons on an emergency basis.

On April 29, 1988, husband filed a petition for dissolution of marriage. Subsequently, numerous pretrial proceedings occurred. The judgment of dissolution was entered July 31, 1992. During the course of the proceedings, the couple decided that wife should be in sole possession of the marital residence located in Burr Ridge (residence). Wife failed to pay real estate taxes for 1989 and 1990. In addition, she failed to satisfy her Federal and State income taxes for tax years 1989 and 1990 and failed to satisfy her Federal and State quarterly income tax for tax year 1991. As a result, the parties entered into an agreed order which required husband to borrow funds in the amount of $70,000 to assist wife to pay off the tax liabilities.

Subsequently, husband obtained a $70,000 home-equity loan from Interstate Bank of Oak Forest, which was secured by the marital residence. Wife was cosigner on the home-equity loan. Husband paid at least the minimum monthly principal and interest payments as they become due.

Several months later, the parties agreed to and presented to the trial court a written marital settlement agreement (agreement). The agreement was accepted and approved by the trial court on June 19, 1992.

Provisions for child support, maintenance, title to the residence, and mortgage payments were part of the agreement. The agreement also provided that husband was to pay back the $70,000 home-equity loan which had been used to satisfy wife's tax debts: "Husband shall forthwith pay in full the home equity loan on said property with Interstate Bank of Oak Forest * * * and shall hold Wife harmless as to same." Husband was responsible for payments of this loan until trial, at which time the trial court was to determine which party would be responsible for the tax debt. The agreement provided that upon approval by the court its terms would be incorporated into the judgment of dissolution.

On September 9, 1992, wife filed an affidavit for garnishment-nonwage (garnishment). The garnishment was served upon Interstate Bank of Oak Forest on September 11, 1992. The affidavit stated that judgment was entered for judgment creditor, wife, and against judgment debtor for $70,000 plus interest for $2,019.45.

Husband filed and served his emergency motion to quash garnishment summons; seeking sanctions and for a declaratory judgment finding that respondent wrongfully garnished and a finding that respondent maliciously prosecuted based upon wrongful garnishment (motion to quash) and a "Memorandum of Law in Support of Motion to Quash Garnishment Summons; Sanctions and for a Declaratory Judgment Finding that [respondent] wrongfully Garnished and a Finding that [respondent] Maliciously Prosecuted based upon Wrongful Garnishment (memorandum)."

The motion to quash was heard by the trial court. The court only addressed the quashing of the garnishment. It reserved hearing on sanctions and husband's request for a declaratory judgment for a later date. On September 16, 1992, after hearing oral argument, the trial court held that there was no legal basis for the issuance of the garnishment summons. The remainder of husband's motion to quash remains pending and undetermined.

Wife filed a motion for reconsideration of the order entered September 16, 1992 (motion to reconsider), and memorandum in support of the motion to reconsider. Husband filed a response to the motion to reconsider and a memorandum of law in support thereof. Wife filed a reply in support of the motion to reconsider.

On December 23, 1992, the wife's motion to reconsider was heard. The trial court held that the judgment could not support a garnishment, as it was contingent and unliquidated. Furthermore, the trial court held that the term "forthwith," as used in the judgment, was vague, as it was susceptible to more than one meaning. The trial court concluded that wife should have sought a judgment in sum certain, or brought a rule to show cause and not the garnishment. Wife's oral motion for leave to include Supreme Court Rule 304(a) language in the ...


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