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In Re Marriage of Arthur T. Susman

May 31, 2012

IN RE MARRIAGE OF ARTHUR T. SUSMAN,
PETITIONER-APPELLANT, AND SHIRLEY SUSMAN,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 06 D 8652 The Honorable Lisa Ruble-Murphy, Judge Presiding.

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

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.

OPINION

¶ 1 Following a dissolution of marriage judgment, which incorporated a marital settlement agreement (MSA), petitioner Arthur T. Susman filed a postjudgment motion claiming mutual mistake of fact with regard to tax consequences due on a fee earned prior to the dissolution judgment. Arthur now appeals from the denial of that motion. He contends, as he did below, that there was a mutual mistake of fact with respect to the 2009 tax consequences on a marital debt earned prior to the dissolution judgment and the trial court erred in refusing to conduct an evidentiary hearing in the matter. For reasons stated below, we conclude we lack jurisdiction and therefore cannot review the merits of Arthur's claim.

¶ 2 PROCEDURAL BACKGROUND

¶ 3 Arthur, a practicing attorney in securities and class action litigation, filed a petition for dissolution of marriage from his wife, Shirley Susman. On October 30, 2009, the trial court entered a judgment for dissolution which incorporated the MSA. The MSA allocated the couple's marital estate, worth approximately $15 million, but reserved two issues for further consideration. First, under the "Tax and Miscellaneous Matters" section, although the parties agreed Arthur would be solely responsible for 2008 taxes, they reserved issues of responsibility, if any, relating to all joint state and federal income tax returns filed before 2008. Second, under the "Debts and Liabilities" section, the MSA reserved "for further consideration by the Court or agreement of the parties" the allocation of personal property consisting of, but not limited to, household furnishings, fixtures, jewelry, antiques, and collectibles.

¶ 4 The MSA provided that it supplemented the October 21 prove-up hearing. At the hearing, the parties verified reservation of the above-stated issues. With regard to the personal property, both parties acknowledged that they had yet to identify which items were marital and non-marital and yet to divide the marital portion. They agreed that any dispute regarding this property would be brought before the trial judge. With regard to taxes, Arthur testified that he did not want to be responsible if Shirley had "lied" on a prior return, and at that point, the parties decided to reserve the issue. The court agreed.

¶ 5 Five months later, on March 30, 2010, Arthur filed a "motion to modify the judgment" pursuant to both sections 2-1203 and 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1203, 2-1401 (West 2008)). Arthur alleged a mistake of fact existed with respect to the 2009 tax liabilities, which he claimed the MSA did not apportion. He argued he should not be solely responsible for the tax liabilities flowing from a $2.7 million legal fee he earned in 2009 that was part of the marital estate. He therefore requested that the parties apportion the tax liability 60/40 (with him paying 40 %), consistent with their overall intent in dividing the entire marital estate.

¶ 6 In April 2010, the parties each filed motions to compel compliance with the MSA's provision that they inventory personal property.

¶ 7 Following responsive pleadings in both matters, on June 6, 2011, the court held a hearing. The same day, the court entered an order denying Arthur's motion to modify the judgment based on mistake of fact. The order also instructed the parties to inspect their personal property, and the court set a status hearing on that issue for June 30, 2011. The record does not contain any evidence that the personal property issue was ultimately disposed of or resolved.

¶ 8 On June 21, 2011, Arthur filed a motion to reconsider the denial of his motion to modify. The court denied the motion to reconsider on June 28, 2011, and Arthur appealed from that denial.

¶ 9 ANALYSIS

¶ 10 Arthur now challenges the denial of his motion to modify the judgment based on mistake of fact. We are unable to reach the merits of Arthur's claim because the reservation of issues deprives us of jurisdiction.

ΒΆ 11 Although neither party raises the issue of our jurisdiction, we have a sua sponte duty to consider it and dismiss the appeal if jurisdiction is lacking. In re Marriage ...


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