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Levaccare v. Levaccare

September 17, 2007

ANGELA LEVACCARE, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,
v.
RALPH LEVACCARE, INDIVIDUALLY AND AS TRUSTEE OF THE MARY MAROTTA LEVACCARE TRUST, DATED AUGUST 21, 1991, RALPH LEVACCARE, AS CUSTODIAN FOR MATTHEW C. LEVACCARE UNDER THE ILLINOIS UNIFORM TRANSFERS TO MINORS ACT, RALPH LEVACCARE, AS CUSTODIAN FOR LAUREN M. LEVACCARE AND AS CUSTODIAN FOR LAUREN M. LEVACCARE UNDER THE ILLINOIS UNIFORM TRANSFERS TO MINORS ACT, JUDITH LEVACCARE AND CHRISTOPHER LEVACCARE, DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 03 CH 18897. Honorable Julia M. Nowicki, Judge Presiding.

The opinion of the court was delivered by: Justice Robert E. Gordon

Published opinion

Angela Levaccare filed a complaint in the circuit court of Cook County alleging that her brother, Ralph Levaccare, diverted to himself, his wife, and children, millions of dollars that her mother (Mary M. Levaccare) intended to give to her. Among other things, Angela alleged that Ralph (1) caused approximately $900,000 worth of checks to be written for his and his own family's benefit from his mother's account while she was terminally ill, and (2) caused title to a three-story residential building, in which Angela lived, to be transferred to himself by means of fraud and/or forgery.

On July 22, 2004, the trial court suspended pleadings pending settlement negotiations between Ralph and Angela. On September 13, 2004, the parties engaged in settlement negotiations, in court, with the trial judge's participation. On September 15, 2004, the parties signed a handwritten memorandum prepared by the trial judge memorializing seven points of compromise. The signed memorandum specified that Ralph agreed to pay Angela $450,000, convey a life estate in the three-story residential building to Angela, and convey certain bank accounts held by him to Angela as custodian for her grandchildren.

Subsequent to the settlement discussions, the parties exchanged draft settlement agreements to further detail the terms of the agreement reached on September 15, 2004. The draft settlement agreements presented to the trial court essentially agreed as to all points of the agreement reached on September 15, 2004, but disagreed as to whether the life estate to be conveyed to Angela should be by trust document or by deed with conditions subsequent, and whether the life estate should include any forfeiture provisions to Ralph, who was to retain the remainder to the three-story residential building. Foremost among Ralph's concerns was that Angela might not properly maintain the property during the duration of her life estate causing a diminution of the remainder estate.

On December 3, 2004, Angela filed a motion to "Interpret and Enforce Settlement Agreement." The court ordered the parties to submit briefs as to their positions. On February 9, 2005, the trial court ordered Ralph to "submit to the court and counsel for Angela interlineations on Angela's settlement documents while citing changes Ralph feels entitled to based on the settlement agreement reached on September 15, 2004, on or before February 16, 2005." Along with a letter dated February 14, 2005, addressed to the trial judge, Ralph's counsel returned a copy of Angela's proposed settlement agreement bearing interlineations stating the ways Ralph felt the proposed settlement agreement differed from the seven-item agreement reached on September 15, 2004. In the letter dated February 14, 2005, to the trial court, Ralph expressed regrets that the settlement process had been unsuccessful and requested that the trial court set the case for trial.

On February 23, 2005, Angela filed a motion requesting interest on the funds that Ralph had agreed to pay in the settlement agreement and on the net income generated by the rents on the subject property. Ralph, in response to the motion, denied that the parties had mutually agreed to the terms of any agreement. On March 8, 2005, after hearing argument from both parties, the trial judge issued an "Order and Opinion Memorandum" confirming that the parties had entered into an enforceable settlement agreement before her and finding that Ralph's objections to the agreement were inconsistent with concessions he had made as part of the September 15, 2004, agreement in which the trial court had directly participated.

On March 29, 2005, the trial court entered a final judgment order directing that Ralph comply with the terms of the parties' settlement agreement. Ralph did not comply. Ralph filed a notice of appeal on April 19, 2005, which was dismissed by this court on August 9, 2005, upon Angela's motion, for failure to attach the March 29, 2005, order in the notice of appeal and failure to timely prepare the record for appellate review. Levaccare v. Levaccare, No. 1-05-1399 (2005) (unpublished order under Supreme Court Rule 23). Ralph's petition for rehearing was denied on September 22, 2005, and his petition for leave to appeal to our Illinois Supreme Court was denied on December 1, 2005. Ralph continued to refuse to comply with the trial court's judgment order.

Angela thereafter issued a number of citations to discover assets to Ralph and third-party financial institutions to collect on the $450,000 money judgment portion of the trial court's order. The trial court later ordered several financial institutions to liquidate certain assets of Ralph's to satisfy the judgment.

On September 29, 2005, Angela filed a "verified petition for adjudication of indirect civil contempt," asking the trial court to find Ralph in civil contempt for failure to comply with the trial court's order and specifically his refusal to convey a life estate in the three-story residential building to Angela. The trial court set a hearing for a rule to show cause for November 30, 2005, for Ralph to show cause, if any he can, as to why he should not be held in contempt for his failure to comply with the trial court's order.

On November 29, 2005, Ralph presented a petition for substitution of judge. The trial court denied the petition to the extent it sought substitution as a matter of right. Pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(3) (West 2004)), the trial court referred the matter of substitution for cause to the presiding judge of the chancery division for referral to another judge. That judge denied the petition, finding that the there was no basis to find that the trial judge was biased against Ralph. The motion to show cause as to why Ralph should not be found in civil contempt was set for January 6, 2006.

On January 5, 2006, Ralph filed a notice of appeal, purporting to appeal the order denying Ralph's petition for substitution. Ralph never prosecuted that appeal, and it was eventually dismissed on this court's own motion. Levaccare v. Levaccare, No. 1-06-0607 (2006) (unpublished order under Supreme Court Rule 23).

On January 30, 2006, Ralph filed a petition for a supervisory order before the Illinois Supreme Court. During the pendancy of that petition, Ralph represented to the trial court that if the petition for a supervisory order was denied, Ralph would voluntarily comply with the terms of the trial court's order making a contempt proceeding unnecessary. The Illinois Supreme Court denied Ralph's petition for supervisory order on March 6, 2006. On March 9, 2006, the trial court held entry of the contempt order in abeyance pending Ralph's voluntary compliance with the court's judgment. Ralph thereafter voluntarily complied with the order's key provisions.

However, Ralph refused to pay Angela the income she had lost from the three-story residential building during the period that Ralph refused to ...


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