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In re Estate of Ahern

August 4, 2005

IN RE ESTATE OF MARIE AHERN, A DISABLED PERSON JANNA DUTTON, JUDGMENT CREDITOR-APPELLANT,
v.
THE MARIE AHERN TRUST, ROBERT AHERN, TRUSTEE, JUDGMENT DEBTOR-APPELLEE).



Appeal from the Circuit Court of Cook County. No. 00 P 3679 Honorable Mary Ellen Coghlan, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

MODIFIED UPON DENIAL OF PETITION FOR REHEARING September 22, 2005

Appellant Janna Dutton, counsel for the North Shore Senior Center, which had filed a guardianship petition on behalf of Marie Ahern (deceased), was awarded attorney fees payable by the Marie Ahern Trust (Trust) and sought enforcement of the judgment against the Trust and decedent=s son, appellee Robert Ahern, Jr. (Robert), as trustee. During enforcement proceedings, the circuit court struck Robert=s emergency motion for change of judge, finding that the court lacked subject matter jurisdiction on the grounds that the estate had already closed. The court denied Dutton=s subsequent motion to reconsider, and she now appeals, contending that the circuit court erred and in fact retains subject matter jurisdiction for purposes of enforcing the judgment. For the reasons that follow, we reverse and remand for further proceedings.

In April 2000, the North Shore Senior Center, in its capacity as an Elder Abuse Provider Agency and with Dutton as counsel, petitioned the circuit court to appoint a guardian ad litem for her. The Senior Center alleged that decedent suffered from advanced dementia and was therefore incapable of managing her affairs and making or communicating decisions regarding her care. The Senior Center also alleged that Robert was financially exploiting decedent and filed a petition to freeze her assets, so as to prohibit Robert from "selling, gifting, transferring, or wasting* decedent=s assets without court approval.

Robert objected to the petition for guardianship, arguing that decedent=s assets were "being handled adequately* and that decedent was "excellently provided for and taken care of,* with Robert assisting in the management of "all of her personal and financial matters.* He further argued that appointing a guardian other than himself or one of his associates would harm decedent=s financial well-being and her physical and mental health. Robert also filed a motion to protect, contesting the Senior Center=s allegations of abuse and seeking to stop the Senior Center from having an armed officer accompany the process server. He alleged that the motivation behind the officer=s presence stemmed from the Senior Center=s "extreme hostility* toward the Ahern family and the "successor trustee of the Marie Ahern Trust.* The circuit court denied the motion.

On May 1, 2000, the circuit court appointed the Public Guardian as temporary guardian for the decedent=s person and estate. The court granted the Public Guardian the authority to investigate any assets in which the decedent individually or jointly had an interest, including all assets held in trust. On June 21, 2000, the court appointed the Public Guardian plenary guardian of decedent=s estate. Robert moved to vacate the appointment, arguing that improper service of process had been made and that the appointment adversely affected decedent=s physical, mental, and emotional health. He also alleged that the Senior Center=s petition to freeze decedent=s assets had been the catalyst for a decline in her physical, mental, and emotional health. The circuit court denied the motion.

In his motion to reconsider the appointment, Robert again argued that service of process had been improper and that he as decedent=s son could make all medical decisions on her behalf. Regarding decedent=s finances, Robert argued that "since all of Marie Ahern=s assets which have any substantial value were transferred to a trust* prior to the commencement of guardianship proceedings, decedent had no need for a guardian to oversee her assets. He further alleged that the statement of income and expenses from the Trust would show that he had used the Trust, including its capital, to pay for decedent=s care. Robert additionally asserted that "with [decedent=s] trust, Robert Ahern has the full legal authority to make any decisions which [decedent] cannot make for herself in every major area of her life.* The court denied Robert=s motion to reconsider the appointment.

On September 11, 2000, the circuit court awarded $1,350 in attorney fees to counsel for Marie=s guardian ad litem, Susan Kennedy. The fees were assessed against the "ward=s trust* and the "trustee* was ordered to pay the specified amount. On October 19, 2000, the court awarded $8,029.55 in fees and costs to Dutton and against "the active Trustee of the Marie Ahern Trust, currently Robert Ahern, Trustee.* Robert filed a motion to reconsider the orders awarding fees, arguing that the Trust, and he as trustee, were never parties to the proceedings. He noted that he had used the designation "Robert Ahern* for all court filings and had never explicitly appeared in any capacity as trustee. The court denied the motion and entered a reduced award of $7,934.55 against the Trust in January 2001.

Decedent died on November 25, 2000.

Enforcement proceedings against Robert as trustee commenced in August 2001, when Dutton and Kennedy filed a petition for a rule to show cause for failure to pay the fees awarded against the Trust. The circuit court entered a rule to show cause against Robert and ordered him to appear on September 21, 2001. Robert objected and filed a motion to dismiss for lack of jurisdiction, but the circuit court struck the motion. Robert failed to appear and the court entered a body attachment for contempt. Robert again moved to dismiss for lack of jurisdiction, filed a response to Dutton and Kennedy=s petition for rule to show cause, and moved to vacate the attachment order. The court denied the motions and Robert was taken into custody. He was later released on bond when his attorneys appeared on his behalf.

The guardianship estate closed on October 21, 2001. Ten days later, Dutton and Kennedy filed another petition for a rule to show cause for Robert=s failure to comply with the court=s orders awarding fees. The same day, Robert appealed the orders awarding Dutton and Kennedy fees against the Trust. The appeal was dismissed without comment. The circuit court granted Dutton and Kennedy=s petition and ordered Robert to appear on December 10, 2001, to show cause. He again failed to appear, and the circuit court entered a body attachment for failure to pay the awarded fees.

In June 2002, Robert again appealed the orders awarding fees to Kennedy and Dutton. This court dismissed the appeal for lack of timeliness, as it was filed more than 30 days after the orders were entered, pursuant to Supreme Court Rule 303(a). 155 Ill. 2d R. 303(a).

In September 2004, Dutton and Kennedy directed citations to discover the Trust=s assets to Wendy=s of New York, Suburban Bank and Trust Company, and Central Federal Savings & Loan, and ordered each entity to respond by October 4, 2004. On October 1, 2004, Robert filed an emergency motion for change of judge, alleging "harming and harassing* motives, "hatred,* and "personal animus* on the part of the judge presiding over the enforcement proceedings. The judge assigned to hear Robert=s motion struck it, finding that, pursuant to the Illinois Supreme Court=s holding in In re Estate of Gebis, 186 Ill. 2d 188 (1999), the circuit court had lost subject matter jurisdiction over the proceedings after decedent=s estate closed in October 2001, and dismissed the matter. Dutton filed a motion to reconsider, which the judge denied.

Dutton now appeals, contending that the circuit court retains jurisdiction to enforce its own judgment of attorney fees regardless of the closing of decedent=s estate and the attendant guardianship proceedings. Robert counters that the circuit court=s finding of lack of subject matter jurisdiction was not in error and in addition argues that the court=s award of fees was void ab ...


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