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In re Marriage of Schmitt

April 25, 2001

IN RE MARRIAGE OF SANDRA L. SCHMITT, PETITIONER-APPELLEE, AND KIM A. SCHMITT, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Kane County. No. 00--DK--0168 Honorable Patricia Piper Golden, Judge, Presiding.

The opinion of the court was delivered by: Justice Grometer

Sandra L. Schmitt filed a petition for dissolution of marriage from respondent, Kim A. Schmitt. This interlocutory appeal concerns two separate orders entered by the circuit court of Kane County with respect to petitioner's petition. One order directed respondent to pay certain monies to or on behalf of petitioner and to perform certain acts for petitioner's benefit. The second order enjoined respondent and others from taking certain actions with respect to specified and unspecified assets. Respondent argues that the trial court's orders are void ab initio because the trial court failed to acquire personal jurisdiction over him. Respondent also contends that the trial court abused its discretion in entering its orders. We affirm.

I. FACTS

On February 4, 2000, petitioner filed a petition for dissolution of marriage from respondent. On May 2, 2000, petitioner filed the following four pleadings: (1) petition for leave to file an amended petition naming additional respondents in discovery and for the appointment of a sequestrator to marshal certain assets owned directly or indirectly by respondent; (2) motion for temporary support; (3) petition for interim attorney fees and costs; and (4) petition for preliminary injunction.

On May 30, 2000, the trial court granted petitioner leave to file her amended petition for dissolution of marriage. The court's order also recognized that respondent had not been served with a summons. The case was continued.

On July 13, 2000, petitioner filed a "Motion for Service by Special Order of the Court." See 735 ILCS 5/2--203.1 (West 1998). In her motion, petitioner explained that a summons, a first alias summons, and a second alias summons were returned "not found." Petitioner alleged that respondent "willfully and intentionally engaged in a course of conduct calculated to evade service of process" and that respondent's "intentional evasion effort makes it impractical to serve him under" either subsection 2--203(a)(1) or (a)(2) of the Illinois Civil Practice Law (735 ILCS 5/2--203(a)(1), (a)(2) (West 1998)). The motion further alleged that respondent was intentionally evading service of process "so that he can continue to transfer and dissipate assets before this Court gains control over the marital estate." The motion identified three individuals upon whom substitute service could be made: (1) Lois Schmitt, respondent's mother; (2) Catherine Boness, respondent's alleged paramour and an employee of a corporation owned or controlled by respondent; and (3) Stephen Sullivan, an attorney who represented respondent in an unrelated Kane County case. The motion also identified the law firm of Pancratz, Riffner & Scott, L.P.P. (Pancratz). Pancratz represented respondent in a dissolution of marriage proceeding that he filed in the circuit court of Cook County. That proceeding was voluntarily dismissed.

Attached to petitioner's motion was the affidavit of William B. Bochte, one of petitioner's attorneys. Bochte stated that two different private investigation agencies had been unable to locate respondent. Bochte also averred that the individuals and the law firm identified in the motion have access to and communication with respondent on a consistent and regular basis.

Attached to Bochte's affidavit was the affidavit of and an investigative report prepared by Terry Vincent, a registered private detective retained by petitioner. The investigative report detailed Vincent's efforts to serve respondent between May 26, 2000, and June 6, 2000. Additionally, in his affidavit, Vincent averred that between June 15, 2000, and June 26, 2000, he made 11 unsuccessful attempts to serve respondent.

On July 13, 2000, the trial court granted petitioner's motion for service of summons by special order of the court. The court concluded that service upon respondent was impractical under subsection (a)(1) or (a)(2) of section 2--203 of the Illinois Civil Practice Law. 735 ILCS 5/2--203(a)(1), (a)(2) (West 1998). Accordingly, the court ordered service upon respondent by "leaving a copy of summons and petition with any two of the following five individuals or entities and thereafter mailing a copy in a sealed envelope with postage fully prepaid addressed to the [respondent] in care of any two of the individuals or entities served." The court further ordered that one of the two individuals or entities served must be an attorney. Although the order purported to list five individuals or entities upon which service could be made, there were actually only four such individuals or entities. The order listed Boness at both her home address and her work address. The other three individuals or entities were Lois Schmitt, Sullivan, and Pancratz.

Copies of the summons and return filed on July 17, 2000, show that the following three individuals were served: Stephen Sullivan, Catherine Boness, and Pat Dusek, a secretary with Pancratz.

On July 25, 2000, Sullivan filed a special and limited appearance for the purpose of filing a motion to quash service of summons on respondent. In his motion, Sullivan stated that he has never represented respondent in an individual capacity in any legal matter. Sullivan acknowledged that he represented respondent's business in an annexation matter. However, Sullivan explained that the annexation matter concluded six months prior to the court's July 13, 2000, order. Sullivan averred that he "does not have, and has never had, personal contact with [respondent] so as to afford him opportunity to notify him concerning the service of summons."

The law firm of Riffner & Scott, P.C. (formerly Pancratz), also filed a verified motion to quash service of process. In its motion, the law firm denied that it had access to or communications with respondent. The law firm admitted that it had represented respondent in a proceeding for marriage dissolution filed in the circuit court of Cook County. However, that case was voluntarily dismissed on May 9, 2000. At that time, the law firm explained, its attorney-client relationship with respondent ceased. Further, the law firm stated that it did not represent respondent in any other matters and it did not know respondent's whereabouts.

The trial court denied both motions to quash service. The cause was continued to August 1, 2000, for a hearing on the pending motions and the status of the notification of respondent by the individuals served with process.

On August 1, 2000, Lyle Haskins filed a special and limited appearance on behalf of respondent. Haskins also filed "Objections to Service of Process Pursuant to Special and Limited Appearance." Haskins alleged that the affidavit filed in support of petitioner's motion for service by special order of the court was false, misleading, and perjurious. Haskins further alleged that petitioner's motion for service by special order was a "fraud on the court designed to disenfranchise respondent and prevent him from exercising his rights to procedural and substantive due process." The trial court overruled respondent's objections. The court subsequently denied Haskins's request for a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there is no just cause for delaying an appeal.

On August 2, 2000, the court entered two separate orders. The first ruling was entitled "Order for Preliminary Injunction." This order enjoined and restrained respondent, his officers, agents, employees, attorneys, and those persons in active concert or participation with him, from "withdrawing, spending, disposing of, encumbering, transferring, pledging, secreting, hypothecating, mortgaging, assigning for collateral purposes or otherwise, or in any way directly or indirectly alienating" any of the parties' assets "except in the ususal and ordinary course of business after seventy-two (72) hour written notice to the [petitioner] and her attorney."

The second ruling was simply labeled an "Order." It required respondent "to pay and keep current the mortgage on the marital residence *** including principal, interest, taxes and insurance." The order also required respondent "to pay and keep current all automobile, life, and health insurance covering the [petitioner] and the vehicle in [petitioner's] use." In addition, the order directed respondent to pay petitioner (1) $10,000 per month as maintenance; (2) $5,000 for landscaping expenses and repairs necessary to the marital residence; and (3) $2,000 to offset travel expenses associated with transporting the parties' children to college. Further, the court awarded petitioner's law firm interim attorney fees of $30,000 and costs of $5,000. On August 11, 2000, respondent filed a notice of interlocutory appeal pursuant to Supreme Court Rule 307(a) (see Official Reports Advance Sheet No. 16 (August 9, 2000), R. 307(a), eff. July 6, 2000) from the trial court's August 2, 2000, orders.

Subsequently, petitioner filed a citation to discover assets based upon respondent's failure to satisfy the $30,000 judgment for attorney fees entered by the trial court on August 2, 2000. On November 2, 2000, the trial court entered an order requiring the trustees of several land trusts to prepare and execute trustees' deeds transferring the beneficial interest held by respondent to petitioner's counsel.

On November 29, 2000, respondent filed an emergency motion to stay the trial court's November 2, 2000, order. This court granted respondent's motion on November 30, 2000. Subsequently, petitioner filed (1) a motion to vacate our November 30, 2000, order and (2) a motion to dismiss respondent's appeal. Respondent then filed a response to petitioner's motions. We ordered both motions and respondent's response thereto taken with the case. We now ...


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