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Busey Bank v. Salyards

April 15, 1999


Appeal from Circuit Court of Champaign County No. 96LM1110 Honorable Donald R. Parkinson, Judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH


Garnishee-defendant Farmers Merchants National Bank (Farmers Merchants) appeals from an order of the circuit court of Champaign County finding it in indirect civil contempt for failing to comply with the trial court's turnover order and further ordering Farmers Merchants to pay plaintiff Busey Bank (Busey) $18,046.99, plus interest. The issues are whether (1) the finding of contempt was against the manifest weight of the evidence or improper as a matter of law and (2) the awarding of "prejudgment" interest was improper. We affirm.

The chronology of events was stipulated. On January 13, 1997, the trial court entered judgment for Busey Bank and against Charles and Marlene Salyards (Salyards) in the amount of $33,787.80, plus interest. On April 30, 1997, a nonwage garnishment summons was served on Farmers Merchants. Farmers Merchants answered that it held $2,573 in a savings account and $18,046.99 in an individual retirement account (IRA) for the Salyards. Farmers Merchants took $2,368.84 as an offset on a loan it had with the Salyards, leaving $18,252.11 in its possession. On May 27, 1997, the trial court entered a turnover order requiring Farmers Merchants to pay Busey Bank the proceeds of the IRA, with notice mailed to Farmers Merchants on May 29, 1997. On May 30, 1997, the Salyards filed a bankruptcy petition in the United States Bankruptcy Court for the District of Arizona (case No. 97-07186-PHX-RGM). In the initial bankruptcy filing, the Salyards did not disclose the IRA or claim an exemption for it. On July 16, 1997, Busey Bank's attorney informed Farmers Merchants by letter that it remained owner of the garnisheed funds and forbade disbursement to anyone else. On July 17, 1997, Farmers Merchants forwarded that demand to the Salyards' attorney, and on July 23, 1997, the Salyards amended the bankruptcy schedule to claim an exemption for the IRA. On August 4, 1997, the Salyards' attorney informed Busey Bank of the amendment to the bankruptcy schedule and the claimed exemption. On November 21, 1997, the bankruptcy court avoided the turnover order. Thereafter, Farmers Merchants relinquished the IRA funds to the Salyards, less $4,500 applied to payment of a car loan with Farmers Merchants.

On January 29, 1998, Busey Bank filed a motion for rule to show cause seeking a finding of contempt and a judgment against Farmers Merchants. After considering the stipulated facts and the arguments and memoranda of the parties, the trial court entered a written order on August 8, 1998, finding (1) Farmers Merchants received and was aware of the import of the turnover order of May 27, 1997; (2) Farmers Merchants had the ability to make the payment pursuant to the turnover order; and (3) Farmers Merchants' failure to make the payment as required by the turnover order was wilful and contumacious. Farmers Merchants was allowed to purge its indirect civil contempt by paying Busey Bank, within seven days, $18,046.99 plus "post judgment interest from June 3, 1997, to the date of mailing or otherwise delivering the payment at the rate of 9% per annum[,] which this Court calculates to be $4.449 per day."

Farmers Merchants concedes the refusal to obey a court is civil contempt, and when the refusal takes place out of the presence of the court, it is indirect civil contempt. In re Marriage of Betts, 200 Ill. App. 3d 26, 48, 558 N.E.2d 404, 418-19 (1990); In re Estate of Miller, 197 Ill. App. 3d 67, 73, 556 N.E.2d 568, 572 (1990). Farmers Merchants further concedes that persons subject to the order of a court having jurisdiction of the subject matter and the parties must obey the order until it is reversed by a reviewing court or set aside or modified by the issuing court (People v. Graves, 74 Ill. 2d 279, 284-85, 384 N.E.2d 1311, 1314 (1979), quoting Faris v. Faris, 35 Ill. 2d 305, 309, 220 N.E.2d 210, 212 (1966)) even if it was erroneous (Schallau v. City of Northlake, 82 Ill. App. 3d 456, 467, 403 N.E.2d 266, 274 (1979)). An order for the payment of a specific fund in the possession or under the control of the party charged with turning it over is enforceable by contempt proceedings. See Tudor v. Firebaugh, 364 Ill. 283, 287-89, 4 N.E.2d 393, 395-96 (1936); Tegtmeyer v. Tegtmeyer, 292 Ill. App. 434, 441-43, 11 N.E.2d 657, 660-63 (1937). Farmers Merchants does not challenge the circuit court's jurisdiction to enter the turnover order or the order of contempt.

Whether a party has committed indirect civil contempt is a question of fact for the trial court, and the trial court's determination will not be overturned on appeal unless it is against the manifest weight of the evidence. In re Marriage of Scott, 286 Ill. App. 3d 1056, 1059, 678 N.E.2d 1, 3 (1996). When the facts are not in dispute, their legal effect may be a question of law, which this court considers de novo (Gay v. Dunlap, 279 Ill. App. 3d 140, 145, 664 N.E.2d 88, 92 (1996)), but if divergent inferences could have been drawn from the undisputed facts, a question of fact remained to be determined and the manifest weight of the evidence standard is applied on review (Metropolitan Water Reclamation District v. Industrial Comm'n, 272 Ill. App. 3d 732, 734, 650 N.E.2d 671, 673 (1995)).

Farmers Merchants argues the turnover order was a judicial lien, and Busey Bank argues the turnover order transferred ownership of the funds to it. It is not necessary to resolve that dispute if (1) a valid order was in effect; and (2) Farmers Merchants had possession of the funds, was capable of complying with the order, and did not. Under such circumstances, regardless of what standard of review applies, Farmers Merchants would be in indirect civil contempt of court.

Farmers Merchants argues the finding of contempt was improper because (1) the IRA was exempt from creditors (735 ILCS 5/12-1006 (West 1996)) and (2) the trial court failed to give full faith and credit to the order of the bankruptcy court avoiding the turnover order. As for the belatedly asserted exemption, neither Farmers Merchants nor the Salyards asserted that exemption in the garnishment proceeding and neither appealed the turnover order.

Imposition of a sanction for contempt is a final order for purposes of appeal since the contempt proceeding is collateral to and independent of the case in which the contempt arises. Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 216, 642 N.E.2d 1264, 1269 (1994), quoting People ex rel. Scott v. Silverstein, 87 Ill. 2d 167, 172, 429 N.E.2d 483, 486 (1981). When the contempt order results from a violation of an interlocutory order, the validity of the interlocutory order may be called into question in an appeal from the order of the contempt. Almgren, 162 Ill. 2d at 216, 642 N.E.2d at 1269. However, the order of contempt in the case at bar arose from the failure to comply with an order that was final for purposes of appeal but which was not appealed. In postjudgment garnishment proceedings, orders that terminate all or part of the garnishment proceeding are appealable pursuant to Supreme Court Rule 304(b)(4) (155 Ill. 2d R. 304(b)(4)). In re Marriage of McElwee, 230 Ill. App. 3d 714, 719, 595 N.E.2d 738, 741-42 (1992); Peter Fischer Import Motors, Inc. v. Buckley, 121 Ill. App. 3d 906, 910, 460 N.E.2d 346, 350 (1984). When a party has failed to take a timely appeal from an order that is final for purposes of appeal, the appellate court is without jurisdiction to consider the propriety of that earlier final order in an appeal from a subsequent order, even in the same case. Bank of Ravenswood v. Maiorella, 104 Ill. App. 3d 1072, 1074, 433 N.E.2d 1044, 1046 (1982). When an appeal has not been perfected, the judgment is res judicata. In re Application of the Cook County Collector for Judgment & Sale Against Lands & Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1985, 228 Ill. App. 3d 719, 736, 593 N.E.2d 538, 550 (1991).

In this case, Farmers Merchants attempts to attack the turnover order in an appeal from an order entered in a subsequent, independent proceeding, to wit, the contempt proceeding. Since Farmers Merchants does not argue that the turnover order is void because the trial court was without jurisdiction (see In re Application of Cook County Collector, 228 Ill. App. 3d at 731-32, 593 N.E.2d at 547), we do not consider whether that order was erroneous on the basis of the claimed exemption. Farmers Merchants may not collaterally attack the underlying final judgment in an appeal from an order of contempt based on the violation of that judgment. See Cummings-Landau Laundry Machinery Co. v. Koplin, 386 Ill. 368, 383-86, 54 N.E.2d 462, 469-70 (1944).

We recognize that the bankruptcy court ultimately avoided the transfer that was the subject of the earlier judgment. However, that did not render the turnover order void at the time it was entered or any other time. Instead, it merely required a retransfer of the assets to the bankrupt estate.

When a debtor files for bankruptcy, all assets of the debtor, even if not listed on the schedule of assets, become property of the bankrupt estate (11 U.S.C. §541 (1994); Jeffrey v. Desmond, 70 F.3d 183, 186 n.3 (1st Cir. 1995); Vreugdenhill v. Navistar International Transportation Co., 950 F.2d 524, 526 (8th Cir. 1991)) regardless of where it is or who holds or controls it (1 D. Epstein, S. Nickles & J. White, Bankruptcy §3-13, at 161 (1992) (hereinafter Bankruptcy)). Even exempt property is part of the bankrupt estate until the exemption is asserted. 1 Bankruptcy §6-6, at 518. Once a bankruptcy petition is filed, there is an automatic stay that has a preclusive effect. The stay bars the continuation of a proceeding commenced prepetition, the enforcement of any judgment obtained prepetition, and any act to obtain estate property. 11 U.S.C. §§362(a)(1), (a)(2), (a)(3) (1994).

"The stay bars garnishment in connection with a prepetition claim, and the garnishment of estate property, including property subject to a garnishment lien prepetition where the debtor was not divested of all interest in the property prepetition." 8A C.J.S. Bankruptcy ยง69, at 76-77 (1988). ...

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