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05/05/95 MARRIAGE DANIEL J. SCHWEIHS

May 5, 1995

IN RE MARRIAGE OF DANIEL J. SCHWEIHS, PETITIONER-APPELLANT, AND MELINDA SCHWEIHS, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Cook County. Honorable James B. Klein and Honorable James G. Donegan, Judges Presiding.

Released for Publication June 23, 1995.

The Honorable Justice McNULTY delivered the opinion of the court: Gordon and T. O'brien, JJ., concur.

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

The domestic relations court bifurcated divorce proceedings and dissolved the marriage of Daniel and Melinda Schweihs without resolving any other issues. The court then found that Daniel's interest in a lawsuit in chancery was a marital asset, and the court ordered sale of the asset to Daniel's opponents in the chancery litigation, in effect ordering a settlement of the case. Daniel appeals from the order for bifurcation in docket number 1-94-0610 and from the order for sale of the asset in docket number 1-94-0829. We find that the record shows adequate grounds for bifurcation, and the evidence supported the order for sale of the litigation interest. We state most pertinent facts in our opinion in the companion case of Disciplined Investment Advisors, Inc. v. Schweihs, (1st Dist. May 5, 1995), No. 1-94-2585, due to our supreme court's limitation on the lengths of our opinions.

I

Daniel contends that the orders for bifurcation and sale of the asset are void because the trial judge entered the orders after erroneously denying Daniel's motion for substitution of judges. See Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 442, 517 N.E.2d 5, 115 Ill. Dec. 40.

Daniel's mother, Veronica Schweihs, died in December 1990, leaving her four children an estate worth more than $400,000. In 1991, Melinda moved to add the executor of the estate as a party to the divorce case because the estate controlled assets from which Daniel could pay child support. At a hearing on September 8, 1992, on a motion for judgment on unpaid child support, the attorney for the executor of Veronica's estate told the court that other heirs sought a judgment declaring that Daniel had exhausted his portion of the estate by living in Veronica's home and using her money to support himself after her death. Judge Donegan expressed concern that Daniel might not oppose the other heirs because Melinda would get most of his share of the estate as child support. Judge Donegan said:

"How do I know that Daniel Schweihs is going to have adequate representation in that estate so that we know that we are dealing with an arm's length transaction[?]

***

*** I understand he might rollover and die ***. *** That's going to defeat the interest of the children that they may have [in] any distributive share he has ***."

Judge Donegan asked if the judge presiding over probate of Veronica's estate, Judge Teschner, knew about the past-due child support. The executor's attorney did not know. Judge Donegan indicated he would contact Judge Teschner himself.

Daniel's attorney admitted Daniel had not paid all of the ordered support but he said support should be reduced because Daniel "has no income." The attorney reported that Daniel had an "employment situation where he is receiving no income except based upon commission *** if he can put a deal together," and he had not received any income from that position.

Melinda sought enforcement of the child support order. The court answered:

"I think if you want that *** the answer is [to] file a petition to hold him in criminal contempt of court and ask for a sentence; and if you do that, we will have a criminal hearing in this division as to whether or not he should be sentenced, not coercive, punitive[,] so that he is going to be put in jail for a specific amount of time."

Daniel's attorney questioned the applicability of criminal contempt. The court said:

"I am only concerned with Daniel Schweihs rolling over playing dead and having a substantial portion of the estate wiped out to the [children's] detriment. ***

*** If he rolls over and plays dead and I find that out, he ...


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