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Cavitt v. Repel

Court of Appeals of Illinois, First District, First Division

March 30, 2015

MARY CAVITT, Plaintiff-Appellant,
v.
STEVEN REPEL, Defendant-Appellee.

Appeal from the Circuit Court of Cook County. No. 95 D 79903. Honorable Pamela E. Loza, Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Harris concurred in the judgment and opinion.

OPINION

CUNNINGHAM, JUSTICE

¶ 1 This appeal arises from the May 18, 2011 order entered by the circuit court of Cook County, which granted the motion of defendant Steven Repel[1] (Steven) to dismiss a "petition to void" filed by plaintiff Mary Cavitt (Mary) to vacate a 1997 judgment for child support, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West 2010)). This appeal also arises from the circuit court's February 5, 2013 order imposing attorney fees and costs upon Mary. On appeal, Mary argues that: (1) the circuit court erred in dismissing her section 2-1401 petition without conducting an evidentiary hearing; and (2) the circuit court erred in imposing a total of $31, 977.83 in attorney fees and costs upon her. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 The procedural history in this case is extensive, and only those facts relevant to the issues raised in this appeal are summarized below. Steven and Mary were never married to each other, but are the biological parents of a son named Noah, who was born on July 8, 1995. On September 21, 1995, Mary, a practicing dentist who was represented by attorney Nathanial Lawrence (Attorney Lawrence), filed a "petition for parentage and support, " seeking to establish paternity and to resolve child custody and support issues against Steven. On October 24, 1995, a summons was served by process server upon Steven at his then residence at 1852 W. Thomas Street in Chicago, Illinois.

¶ 4 On December 1, 1995, Steven filed, and the circuit court granted, an "application to proceed under Supreme Court Rule 298" (Rule 298 application) (Ill. S.Ct. R. 298 (eff. Nov. 1, 2003)) (formerly, Ill. Rev. Stat. 1991, ch. 110A, ¶ 298) for the waiver of court fees, noting that he was unemployed and had an "undetermined" amount of expected future income, that he owned no interest in real estate, and that he had a "nominal" and "unknown" value in personal property. On December 19, 1995, Steven, acting pro se, filed an appearance before the court in forma pauperis.

¶ 5 On January 5, 1996, Steven married Mieko Fujii (Mieko).

¶ 6 On March 8, 1996, attorney Lawrence Lusk (Attorney Lusk) filed an appearance before the court as substitute counsel for Mary.

¶ 7 On April 12, 1996, the circuit court[2] entered an order requiring the parties to "exchange financial records sufficient to determine income since January 1st, 1995 to present."

¶ 8 On May 9, 1996, attorney Mary Beth Powers (Attorney Powers) filed her appearance before the court as counsel for Mary.

¶ 9 On July 24, 1996, Mary, through Attorney Powers, filed written discovery against Steven for the disclosure and production of documents relating to Steven's assets and income. In August 13, 1996 Rule 13.3(a) and (b) (Cook Co. Cir. R. (eff. Jan. 1, 1996) financial disclosure statements, Steven represented that he was self-employed; that his total gross monthly income was $2, 008; that he earned a net monthly income of $1, 007 after tax deductions; that he had living expenses of $700 per month; that he owed creditors about $187, 000; that his student loans were in "default"; that he owned no investment accounts or securities; that he owned 50% of "equitable interest only" in business entity "S Partners"; that real estate property at 1852 W. Thomas Street in Chicago was transferred to S Partners in 1992 and then to "William & Mary Repel" in 1993; that he had no health insurance coverage; and that he owned about $5, 000 in miscellaneous personal property.

¶ 10 On January 13, 1997, the circuit court[3] entered a "Judgment for Parentage" (1997 judgment), which incorporated the parties' September 13, 1996 parental settlement agreement (the settlement agreement). The September 13, 1996 settlement agreement, which was drafted by Mary's counsel, Attorney Powers, provided that the parties agreed that Mary shall have sole custody of Noah, subject to reasonable visitation rights by Steven; that Steven shall pay Mary $500 per month in child support; that the parties acknowledged that Steven was unable to contribute to the day care of Noah, but "the issues of day care shall be reserved until further order of Court"; that Steven shall tender his income tax returns to Mary each year; that Mary shall maintain health insurance for Noah until such time as Steven is able to secure a policy of coverage through employment; that Steven shall maintain a life insurance policy for the benefit of Noah; and that the parties shall pay for Noah's college expenses pursuant to section 513 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/513 (West 1996)).

¶ 11 On May 5, 2000, Steven and Mieko's marriage ended in divorce. That marriage produced no children. The judgment for dissolution of marriage (case No. 00 D 7309), which incorporated Steven and Mieko's marriage settlement agreement, stated that Steven was employed as an attorney at a Chicago law firm with an annual income of $100, 000; that Mieko had an income of $30, 000 per year; that Steven shall pay Mieko maintenance of $2, 500 per month for 36 months beginning on June 1, 2000; that Steven shall pay Mieko's health insurance coverage for one year; that Steven shall maintain a life insurance policy for the benefit of Mieko; that Mieko shall receive 50% of the value of Steven's IRA and SEP plans; that Mieko shall receive certain mutual funds from Steven; that Mieko shall receive 100% interests in real estate properties 543 Sheridan Road in Evanston, 2838-40 N. Albany Avenue in Chicago, and 1937 N. Damen Avenue in Chicago; that Mieko shall receive $72, 000 in cash as property settlement from Steven; and that Mieko shall receive 50% of any and all cash payments from Steven's share of the partnership Berg, Repel & Berg.

¶ 12 On September 13, 2000, Mary, represented by new counsel Robert Schmit (Attorney Schmit), filed a "petition for modification of child support" (petition to modify), arguing that Steven's income and assets had increased substantially since the entry of the 1997 judgment. The petition to modify sought to increase Steven's monthly child support obligations; to obtain reimbursement from Steven for Noah's medical insurance; to require Steven to contribute to the day care costs of Noah; and to restrict Steven's visitation rights.

¶ 13 On November 1, 2000, Steven, acting pro se, filed a motion to modify his monthly child support payments to an amount less than $500, on the basis that he had lost his job at a law firm in September 2000 and that he had no income to continue paying the monthly support obligation as it existed.

¶ 14 On February 28, 2001, attorney Fred Lerner (Attorney Lerner) filed an appearance before the court as substitute counsel for Mary.

¶ 15 During the pendency of Mary's September 13, 2000 petition to modify, Mary engaged in extensive discovery-including deposing Steven, Mieko, Steven's former law partner, Steven's father, Steven's friend, Steven's second wife (Sarah Ludington) (Sarah), and Sarah's tenant, as well as issuing dozens of subpoenas to these individuals and Steven's former clients, his in-laws, and various banks and business entities.

¶ 16 On July 16, 2004, Mary again obtained new counsel and attorney Regina Scannicchio (Attorney Scannicchio) was granted leave of court to file her appearance as substitute counsel.

¶ 17 On January 26, 2005, the circuit court entered an order limiting Mary's discovery efforts to the date of the filing of her September 13, 2000 petition to modify, and specifically limiting Mary's request of production of documents from Sarah to the date of October 6, 2001.

¶ 18 On June 20, 2005, Mary filed a motion to join Sarah, [4] Steven's second wife, as a party to the litigation, alleging that Steven had demonstrated "a comprehensive pattern and practice of diverting, shielding and/or disguising his true income by, in part, jointly investing personal and/or marital income and assets with [Sarah]; directing that income and/or gains derived from such joint investments be made payable to [Sarah] rather than to himself; granting and/or transferring income and/or assets to [Sarah]; and/or otherwise directing that income due to him flow instead to [Sarah]." The motion to join Sarah also alleged that Sarah had "diverted monies from her joint account with [Steven] to accounts jointly held between herself and other parties."

¶ 19 On August 26, 2005, the circuit court[5] granted Mary's motion to join Sarah as a necessary party to the litigation in order "to reach a decision which will protect the interest of those who are before the court" and "to enable the court to make a complete determination of the controversy."

¶ 20 On August 18, 2006, Mary, through new counsel Joshua Jackson of Schiller, DuCanto and Fleck (Attorney Jackson), filed a motion to join Mieko, Steven's ex-wife, as a party to the litigation, alleging that Steven attempted to shield his assets by transferring most of his assets to Mieko during their May 2000 divorce; and that both Steven and Mieko worked together to shield Steven's true income from the court-including proceeds from the sale of property located at 2838-40 N. Albany Avenue in Chicago, rental income and refinance funds from property located at 543 Sheridan Road in Evanston, and rental income from property located at 1937 N. Damen Avenue in Chicago. On March 4, 2008, the circuit court[6] denied Mary's motion to join Mieko as a party.

ΒΆ 21 On October 2, 2007, attorney Nicholas Stein (Attorney Stein) entered his appearance before the court as substitute counsel for Mary. On October 14, 2008, attorney Herbert Glieberman (Attorney Glieberman) was granted leave ...


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