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In re Marriage of Petersen

February 01, 2001

IN RE THE MARRIAGE OF:
KEVIN PETERSEN, PETITIONER-APPELLANT, AND JANET KELLOGG PETERSEN, RESPONDENT-APPELLEE.



The opinion of the court was delivered by: Presiding Justice Hartman

Appeal from the Circuit Court of Cook County. Honorable Helaine L. Berger, Grace G. Dickler, Moshe Jacobius, and Karen Shields, Judges Presiding.

This consolidated appeal arises from the dissolution of the marriage of petitioner Kevin Petersen and respondent Janet Kellogg Petersen and involves five interlocutory appeals as well as an appeal from the judgment of dissolution. On appeal Kevin contends that the circuit court erred in: (1) finding him in indirect civil contempt of court on three separate occasions; (2) finding him in contempt of court for his failure to pay expert witness fees pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/604(b) (West 1998) (section 604(b))); (3) denying his petition for a preliminary injunction; (4) granting Janet's petition for a preliminary injunction; (5) denying Kevin's multiple motions for substitution of judge; (6) awarding Janet maintenance; and (7) imposing a trust under section 503(g) of the Act (750 ILCS 5/503(g) (West 1998)). He also asks this court to reconsider its denial of his motion to vacate the circuit court's November 18, 1998 order.

Kevin and Janet were married on September 1, 1983, in Santa Monica, California. The parties have three children. Kevin is a self-employed general surgeon at Petersen Surgical Services. The parties separated in June 1996, when Kevin filed a petition for dissolution of marriage. On July 5, 1996, Janet filed a counter-petition for dissolution of marriage. After attempts at reconciliation, Kevin withdrew his petition. Janet's counter-petition remained.

On July 11, 1996, the parties entered into an agreed order which granted temporary custody of the children to Janet and required Kevin to pay Janet $12,000 per month ($6,000 on the first and $6,000 on the fifteenth of each month) in temporary child support. Kevin provided extra money to Janet as needed, averaging $2,000 per month.

On October 7, 1998, Janet filed an emergency petition for a rule to show cause alleging Kevin wilfully and contumaciously failed to pay the court ordered child support due on September 15 and October 1, 1998, totaling $12,000.

On October 15, 1998, Kevin filed a motion for immediate hearing on the issue of support, claiming that since the entry of the agreed order in July 1996, his income has "decreased dramatically" so that he could no longer afford the $12,000 per month support payments.

On October 23, 1998, a hearing was held on Janet's petition for a rule to show cause. Janet testified that Kevin failed to make the September 15 and October 1, 1998, support payments; she received $6,000 from him on October 8, 1998, but no payments since that date; and Kevin was $12,000 in arrears at the time of the hearing. Kevin testified he did not have the funds to make the payments due to a significant decrease in his income since 1996. Kevin's evidence of his inability to pay consisted of his testimony and self-created summary financial statements. He admitted that in the time the arrearage accrued he received a $70,000 loan from his aunt from which he paid a $25,000 retainer to his attorneys, paid off $14,000 in personal credit card debt, and bought a $3,000 lap top computer and a $1,000 digital camera. Following the hearing, the court held Kevin in indirect civil contempt for failure to pay the $12,000 child support due October 1 and October 15, 1998. On October 29, 1998, the court ordered Kevin's incarceration until he purged the $12,000 debt. Kevin's request for a stay of the order pending an emergency appeal to this court was denied and Kevin was incarcerated. His request to set bail was denied.

On October 29, 1998, Kevin filed a notice of appeal from the circuit court's order finding him in contempt and on October 30, 1998, this court stayed the order of commitment pending appeal. Prior to the stay order, Kevin paid $12,000 to the sheriff and was released from jail. On November 16, 1998, Janet filed an emergency motion seeking the $12,000 posted with the sheriff by Kevin to secure his release from jail. A hearing was held on November 18, 1998, after which the circuit court granted Janet's motion, finding that the October 29, 1998 order set the $12,000 as a purge amount, rather than a bond. On November 19, 1998, Kevin filed an emergency motion with this court to vacate the circuit court's November 18, 1998 order, which was denied.

On September 16, 1998, the circuit court entered an order appointing Dr. Rochelle Miller to conduct a custody evaluation, pursuant to section 604(b) and Barry Greenberg to represent the parties' minor children. The order further required Kevin to pay the retainers required by Dr. Miller and Greenberg within ten days. On October 28, 1998, Greenberg filed a petition for a rule to show cause, alleging Kevin had not paid his $5,000 retainer required by the court's September 16, 1998 order. On November 17, 1998, Kevin filed a response stating "he does not possess the money to pay the GAL and to pay all of his other bills which are due and owing." On November 18, 1998, Greenberg filed a second petition for a rule to show cause against Kevin alleging his failure to pay the second half of Dr. Miller's retainer ($2,850). *fn1

After a three day hearing, the circuit court entered an order on December 14, 1998, finding Kevin in indirect civil contempt for failure to pay the section 604(b) expert witness fees and for failure to pay the GAL's fees. The court allowed the provisions of the July 11, 1996, support agreement to stand. Kevin's motion to reconsider the court's order was denied. On January 19, 1999, the court found Kevin in wilful contempt and ordered him incarcerated for failing to pay the 604(b) expert witness fees. This court stayed the commitment order upon posting of an appeal bond in the amount of $4,275. On that same day Kevin filed a notice of appeal from the January 19, 1999 order.

On January 11, 1999, Kevin filed an emergency motion for a temporary restraining order (TRO) and preliminary injunction thereafter, when he learned Janet had made plans to take the parties' children to California to visit Kevin's father Andro Petersen, from whom Kevin was estranged. The circuit court entered a TRO enjoining Janet from exposing the children without her presence to any visitation with Andro where they might be exposed to his guns.

On January 29, 1999, the circuit court again found Kevin in indirect civil contempt for failure to pay $16,000 in past due child support and ordered him committed to the custody of the Cook County Sheriff until he purged the contempt by paying Janet $16,000. The court also ordered that Kevin, having been held in contempt of court on December 14, 1999, for failure to pay the GAL and failure to purge the contempt, be committed to the custody of the Cook County Sheriff until he purged the contempt by paying the GAL $5,000. On January 29, 1999, Kevin filed his notice of appeal from that order and this court stayed the circuit court's order pending appeal.

On February 2, 1999, a hearing was held on Kevin's motion to elevate the TRO to a preliminary injunction. Kevin offered no new evidence, relying on the testimony presented at the TRO hearing. Janet moved for a finding arguing the evidence previously presented for the TRO was insufficient for a preliminary injunction. The circuit court denied Janet's motion for a finding and denied Kevin's petition for a preliminary injunction. On February 5, 1999, Kevin filed an amended notice of interlocutory appeal, appealing from the denial of his petition for a preliminary injunction.

On February 8, 1999, the circuit court entered a preliminary injunction on Janet's motion, enjoining Kevin from withdrawing funds from the parties' retirement accounts, which were solely in his name, throughout the pendency of this cause. *fn2 On February 9, 1999, Kevin filed a notice of interlocutory appeal from the February 8 order.

The case was assigned to Judge Helaine L. Berger for trial. On May 10, 1999, Kevin moved for substitution of judge as of right under section 2-1001 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1001 (West 1998)). Judge Berger found her prior rulings in the case made on February 4, 1999, to be substantive in nature and denied Kevin's motion.

On May 13, 1999, Kevin filed a two-count emergency petition for recusal and other relief. He alleged that on May 10 and 11, 1999, Judge Berger conducted a pre-trial settlement conference regarding the issues of custody and visitation, meeting with the attorneys and the parties separately and together at various times throughout the two days. On May 11, 1999, the parties settled the custody and visitation issues. Thereafter, Kevin disclosed several comments allegedly made to him by Judge Berger in the presence of Janet, which he claimed expressed a personal bias or prejudice against him, necessitating her recusal under Supreme Court Rule 63 (155 Ill. 2d R. 63) (count I) and/or her substitution for cause under section 2-1001(a)(3) of the Code (735 ILCS 5/2-1001(a)(3) (West 1998)) (count II). Judge Berger denied count I and transferred count II to Judge Grace G. Dickler for further proceedings. Judge Dickler transferred the matter to Judge Timothy Evans, the presiding judge of the domestic relations division, who assigned the matter for hearing to Judge Moshe Jacobius, sitting in the domestic relations division.

Janet filed a two count motion to dismiss under sections 2-615 and 2-619 of the Code (735 ILCS 5/2-615, 2-619 (West 1998)). On May 14, 1999, Judge Jacobius entered a memorandum opinion and order dismissing count II of Kevin's petition under section 2-615 of the Code (735 ILCS 5/2-615 (West 1998)), without specifically granting him leave to replead. The case was sent back to Judge Berger for trial. Following the trial, a dissolution of marriage judgment was entered on August 27, 1999.

I.

In docket numbers 1-98-4078 and 1-99-0380 Kevin appeals from the circuit court's October 29, 1998, and January 29, 1999, orders finding him in contempt of court for non-payment of support and the guardian ad litem's fees. He contends his failure to pay was not wilful because he did not have the funds with which to make the payments.

Our supreme court has held that "[t]he power to enforce an order to pay money through contempt is limited to cases of wilful refusal to obey the court's order." In re Marriage of Logston, 103 Ill. 2d 266, 285, 469 N.E.2d 167 (1984) (Logston). The failure to pay court ordered support or fees is prima facie evidence of indirect civil contempt, shifting the burden to the alleged contemnor to show that his noncompliance was not wilful. Logston, 103 Ill. 2d at 285. Whether noncompliance is wilful or the alleged contemnor had a valid excuse for noncompliance is a question of fact and the finding of the circuit court will not be disturbed unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. Logston, 103 Ill. 2d at 287.

A defense to contempt exists where the failure to obey an order to pay is due to poverty, insolvency, or other misfortune, unless that inability to pay is the result of a wrongful or illegal act. In re Marriage of Betts, 155 Ill. App. 3d 85, 507 N.E.2d 912 (1987) (Betts). To prove this defense, a defendant must show he neither has money now with which to pay, nor has he wrongfully disposed of money or assets with which he might have paid. Logston, 103 Ill. 2d at 285. Financial inability to comply with an order must be shown by definite and explicit evidence. In re Marriage of Chenoweth, 134 Ill. App. 3d 1015, 481 N.E.2d 765 (1985) (Chenoweth). The alleged contemnor must show, with reasonable certainty, the amount of money he has received ...


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