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In re Marriage of Sheth

Court of Appeals of Illinois, First District, Fifth Division

February 13, 2015

In re MARRIAGE OF ANITA SHETH, Petitioner-Appellee, and SUSHIL SHETH, Respondent-Appellant

As Modified February 13, 2015.

As Corrected.

Appeal from the Circuit Court of Cook County. No. 09 D 007370. The Honorable Leida Gonzalez-Santiago, Judge Presiding.

SYLLABUS

Respondent's appeal from the denial of his motion to reconsider an order in respondent's marriage dissolution proceedings changing the custodian of four bank accounts belonging to respondent's children was dismissed for lack of jurisdiction where the record showed that his notice of appeal was filed more than 30 days after the denial of the motion to reconsider, and respondent did not submit a " Certificate of Service" sworn to before an authorized person that could be considered an affidavit for purposes of showing that the notice was placed in the mail of the prison in which he was incarcerated at the time of mailing within the 30-day time limit in compliance with the requirements of Supreme Court Rule 12(b)(3).

For APPELLANT: NONE.

For APPELLEE: Ariel Weissberg, Esq., WEISSBERG AND ASSOCIATES, LTD., Chicago, Ilinois.

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride[1] concurred in the judgment and opinion.

OPINION

Page 239

GORDON, J.

[¶1] The instant appeal arises from a trial court order changing the custodian of four bank accounts belonging to respondent Sushil Sheth's children; prior to the order, Sushil served as custodian. Sushil claims he was denied due process, because he was not afforded an opportunity to timely respond to the motion of his ex-wife, petitioner Anita Sheth, to change the custodian, nor was he afforded an opportunity to argue his position before the trial court denied his motion to reconsider. By contrast, Anita claims that Sushil has no standing to bring the instant appeal and that his appeal is barred by res judicata. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

[¶2] BACKGROUND

[¶3] The following facts, up to the filing of the petition for dissolution of marriage, were stipulated to by the parties before the trial court on August 16, 2012. Anita and Sushil were married on November 23, 1991, and had two children, S.S. and R.S., born October 27, 1994, and March 10, 1996. Sushil is a physician, specializing in internal

Page 240

medicine and cardiology, and had hospital privileges at four hospitals in the Chicago area. Sushil had a business relationship with another doctor, Lokesh Chandra, and Sushil would treat Chandra's patients when Chandra was unavailable. Beginning in 2006, Chandra began investigating Sushil's billing practices after receiving reports from patients that Sushil had billed Medicare and other insurance carriers for treatments that the patients had not received; Chandra discovered that Sushil had been fraudulently billing since 2002. Chandra approached government officials and informed them of his discovery.

[¶4] On April 19, 2006, a complaint was filed against Sushil in federal district court, in a case captioned United States ex rel. Chandra v. Sheth, No. 06 CV 02191 (N.D. Ill.). The complaint alleged violations of the Federal Civil False Claims Act (31 U.S.C. § 3729 et seq. (2000)) and the Illinois Whistleblower Reward and Protection Act (740 ILCS 175/1-8 (West 2004)), and sought a civil judgment against Sushil in the amount of $30 million.[2]

[¶5] Two years later, on January 28, 2009, Sushil was also criminally charged by information with healthcare fraud in federal court, in a case captioned United States v. Sheth, No. 09 CR 069 (N.D. Ill.). The information charged that Sushil was a cardiologist who submitted claims to Medicare and other health benefit programs for services that he did not provide, to the extent of approximately $13.4 million, and sought forfeiture of Sushil's real and personal property in addition to seeking a conviction. On August 19, 2009, Sushil entered a plea agreement in the criminal case, in which he agreed to enter a voluntary plea of guilty to the healthcare fraud, and further agreed to the entry of a forfeiture judgment. On August 10, 2010, the federal court sentenced Sushil to 60 months' incarceration and entered a judgment for restitution in the amount of $13 million. [3]

[¶6] On August 6, 2009, approximately six months after Sushil was criminally charged, Anita filed a petition for dissolution of marriage, citing irreconcilable differences. On October 22, 2010, Sushil, through attorney Laurel Black Rector, filed an appearance in the dissolution of marriage action. Subsequently, the record contains a motion slip completed by Rector and a " motion call receipt," which list a " motion to withdraw" as set for December 28, 2010. However, the record does not indicate that this motion was ever heard, and the sole court order entered on December 28, 2010, does not reference the motion to withdraw. Additionally, Rector continued to be involved with Sushil's case, further indicating that the motion was never granted.

[¶7] On October 4, 2012, the trial court entered a judgment for dissolution of the parties' marriage. One of the conclusions of law contained in the judgment concerned four custodial bank ...


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