Opinion
No. 2-12-1285
08-19-2013
In re MARRIAGE OF DANIEL CHAPA, III, Petitioner-Appellee, and NANCY L. CHAPA, Respondent-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Du Page County.
No. 09-D-395
Honorable
Neal W. Cerne,
Judges, Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Burke and Justice Hutchinson concurred in the judgment.
ORDER
¶ 1 Held:The trial court did not err in denying the motion to vacate the post-decree enforcement order to sign the listing agreement for the marital residence. Likewise, the court did not err in finding that the failure to sign the listing agreement constituted contempt. However, we modify the purge order and direct the trial court to give the parties one opportunity to promptly present evidence of current value and, if appropriate, amend the listing agreement. We also modify the purge order to omit the requirement that the contemnor sign a quit-claim deed to transfer ownership of the marital residence. Affirmed as modified and remanded with directions. ¶ 2 While an appeal on the merits of the parties' judgment of dissolution was pending (In re Marriage of Chapa, 2013 IL App (2d) 120745), the trial court entered an enforcement order for the parties to sign the court-approved listing agreement for the marital residence. Respondent, Nancy L. Chapa, sought to vacate the enforcement order (735 ILCS 5/2-1301(e) (West 2012)), arguing that it was entered in violation of the spirit of Illinois Supreme Court Rule 13 (eff. Feb. 16, 2011), because she was not represented by counsel. The trial court denied the motion to vacate. Subsequently, the trial court found Nancy in indirect civil contempt for refusing to sign the listing agreement. The court entered a purge order, requiring Nancy to sign the listing agreement and to sign a quit-claim deed to transfer the residence to petitioner, Daniel Chapa, III. Nancy appeals, arguing that: (1) the trial court erred in denying her motion to vacate the enforcement order to sign the listing agreement; and, even if the court properly entered the enforcement order, it erred in: (2) denying her motion to quash service in the contempt proceedings; (3) finding her refusal to sign the listing agreement to be contemptuous; and (4) entering a purge order that exceeded the scope of its enforcement authority. ¶ 3 For the following reasons, we find that the trial court did not err in: (1) denying the motion to vacate the enforcement order to sign the listing agreement; (2) denying the motion to quash service in the contempt proceedings; or (3) finding Nancy to be in contempt. However, we modify the purge order. Not sooner than 30 days after the mandate in this appeal is filed, the parties each shall have one opportunity to promptly present evidence of a current value, and, if appropriate, the trial court may amend the listing agreement. Additionally, we omit that portion of the purge order requiring Nancy to sign a quit-claim deed to transfer the property. Affirmed as modified and remanded with directions.
¶ 4 A. BACKGROUND
¶ 5 On April 27, 2012, the trial court entered a judgment of dissolution of marriage for Daniel and Nancy. In it, the court ordered that the marital residence in downtown Hinsdale be sold, with the proceeds to be split 40% to Daniel and 60% to Nancy. The parties bought the property in 2002 for $1.65 million and subsequently made $500,000 in improvements. At one point in the proceedings, Daniel averred that he believed the home to be worth $2.6 million. Nancy appealed the order to sell, arguing that the sale should be postponed until 2014 when the youngest child was set to graduate high school. Chapa, 2013 IL App (2d) 120745, ¶ 26. In July 2012, Daniel initiated a contempt proceeding (not at issue here) against Nancy for refusing to cooperate with the sale of the marital residence. The trial court, having jurisdiction over the enforcement of the judgment, found Nancy to be in contempt. The court believed that Nancy was financially motivated to delay the sale of the marital residence because the time-limit on her maintenance period did not begin to run until the sale closed. Nancy moved this court to vacate the finding of contempt and stay enforcement of the order to sell. Nancy noted that, if the home sold before the appeal was resolved, the fruits of a successful appeal would be lost. ¶ 6 On August 3, 2012, in a minute order, this court vacated the finding of contempt but denied the stay. We ordered the parties to reach an agreement within 30 days as to the listing price and agent. We further directed that, if the parties could not reach an agreement, the trial court shall set the matter for hearing. ¶ 7 Before the 30 days passed, Nancy terminated her trial counsel. On August 21, 2012, the trial court granted counsel leave to withdraw. The withdrawal order did not grant Nancy 21 days to retain new counsel. One week later, on August 28, 2012, the court held a status hearing. Apparently anticipating that the parties would not come to an agreement on listing price and agent, the court set the matter for September 12, 2012, per this court's minute order. ¶ 8 On September 11, 2012, in preparation for the September 12, 2012, hearing, Nancy filed a "responsive letter" with the trial court and served a copy to Daniel's attorneys. Nancy told the court that she felt "intimidated" to appear the next day. However, she hoped the letter would make her wishes known. Nancy informed the court that her preferred realtor was Hinsdale-based Nellie McCarthy of Prudential Rubloff. Nancy did not wish to work with Daniel's preferred realtor, Gabrielle Jury (of Sotheby's), because, although Jury had previously been based in Hinsdale, her current office was 30 miles away. Additionally, Nancy felt "uncomfortable" with Jury because Nancy felt that Jury had testified against her interest in a prior contempt proceeding. In that proceeding, Jury testified that the value of the marital residence was $1.95 million (in contrast to Daniel's earlier stated $2.6 million). ¶ 9 Nancy did not appear at the September 12, 2012, hearing. The trial court and Daniel's attorneys acknowledged receipt of Nancy's responsive letter. However, the court did not consider the letter and took evidence only from those present. Jury submitted that the value of the marital residence was now $1.85 million. The court entered the following findings of note: (1) the parties were unable to come to an agreement on their own as to listing price and agent; (2) Gabrielle Jury is a competent listing agent; (3) the suggested list price of $1.85 million is supported by Jury's comparative market analysis; and (4) a broker fee of 5% is reasonable. The court ordered the parties to execute the listing agreement within seven days and directed them to cooperate with Jury in the selling of the home. ¶ 10 On October 11, 2012, Nancy, through new counsel, moved to vacate the September 12, 2012, order. 735 ILCS 5/2-1301(e) (West 2012). She argued that Rule 13 requires a 21-day transition period following the withdrawal of counsel before any proceeding with the potential to prejudice the unrepresented party may occur. Citing Miller v. Miller, 273 Ill. App. 3d 64, 69 (1995); Ill. S. Ct. Rule 13. She noted that counsel withdrew on August 21, 2012, the next status hearing was August 28, 2012, and the hearing to determine the listing price was September 12, 2012. She further contended that she was prejudiced by the September 12, 2012, proceeding because she was not given the opportunity to present evidence on the value and agent, and the house is now set to be sold in a "fire sale" for less than she believes it to be worth. She notes that maximizing the value of the home is more important to her than it is to Daniel, because her future income is far less than Daniel's future income. In her view, Daniel, who earns nearly $1 million per year, is motivated simply to sell and be free of the matter. She sought a new evidentiary hearing so that she could present evidence as to the value and agent. ¶ 11 On October 31, 2012, the trial court denied the motion to vacate. It noted that no matters were pending when it allowed counsel's withdrawal, thereby implying that the 21-day extension did not apply. Nancy's counsel conceded that the court correctly ignored her September 11, 2012, responsive letter, because it was an ex parte communication. The trial court struck the letter from the record. ¶ 12 Meanwhile, on October 2, 2012, Daniel petitioned for rule to show cause based on Nancy's refusal to sign the listing agreement. According to the affidavit of the special process server, Nancy was personally served at the marital residence on October 30, 2012. However, Nancy disputed service, and, on November 13, 2012, she moved to quash service. She attached an affidavit stating, simply, that she was never served with the petition for rule to show cause. At the November 21, 2012, hearing on the contempt petition, Nancy was represented by counsel, but Nancy herself did not appear. The trial court first addressed Nancy's pending motion to quash service, noting that there was a presumption of service. Nancy's attorney agreed that there was a presumption of service. The court began the phrase, "If Ms. Chapa were here [to testify]," before being cut off by the attorneys and their various arguments. Nancy's attorney moved to call the special process server to testify, noting he believed her to be "here." The court denied the oral motion to call the process server and denied the motion to quash. ¶ 13 The trial court held Nancy in contempt for failing to sign the September 12, 2012, listing agreement. It ordered that Nancy be placed in jail until she purged herself of the contempt. It ordered that Nancy could purge herself of contempt by signing the listing agreement and signing a quit-claim deed transferring her interest in the property to Daniel. If Nancy did not cooperate with the sale of the home in terms of closing date, et cetera, then Daniel could record the deed. The court did not specify whether it must approve Daniel's decision to record the deed or whether Daniel could unilaterally deem Nancy uncooperative and record the deed without approval. The court stated:
"[I]f it comes to the point where she's refusing to sign an offer, all we're simply going to do is [Daniel] is going to record the quit[-]claim deed. He will then become the sole owner of the house and have the full authority to sell it. *** If she refuses to [cooperate], he's simply going to record it.
The court later struck this letter on October 31, 2012. However, the letter remained a part of the trial record until that date, and it is contained in the record on appeal. The substance of the letter in no way influenced our analysis and we reference it only for background.
On appeal, Nancy concedes that September 12, 2012, is 22 days following withdrawal.
We take the word "here" to mean "in the courthouse," because the special process server was not among those noted as present at the beginning of the hearing.
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***
If he becomes the owner, she may get evicted. All right. Because [Daniel] is going to be the owner of the property.
I mean, I'm not going to have—[Nancy] has taken the position of being uncooperative in doing everything she can to delay these proceedings. *** [Because the clock on Nancy's temporary maintenance period does not begin to tick until the house is sold], she has every financial incentive to delay the sale of the house and I can't allow that.
***
[I]f he's now the owner of the property, and we have to sell the property, and it's shown that she is being difficult and she's not being cooperative and she's leaving the house in a mess or, you know, stuffing the toilets, making it smell so people don't like it, or doing what—God knows what else."Nancy's attorney then interjected, stating that, although he knew the court was speaking hypothetically, he felt it was losing sight of Nancy's primary concern and reason for appealing: wanting the minor daughter to live in the home until graduation. The court did not change its mind and reiterated the terms of the purge order. ¶ 14 Nancy appealed the trial court's September 12, October 31, and November 21, 2012, orders. This court stayed enforcement of the purge orders pending the outcome of this appeal (2013 IL App (2d) 121285), thereby allowing Nancy out of jail. Later, on February 13, 2013, this court affirmed the underlying judgment of dissolution and order to sell the marital residence (2013 IL App (2d) 120745). The mandate issued July 3, 2013, and was filed on July 5, 2013.
¶ 15 II. ANALYSIS
¶ 16 We organize Nancy's appellate arguments as follows: (1) whether the trial court erred in denying her motion to vacate the enforcement order to sign the listing agreement; and, even if the court properly entered the enforcement order, whether it erred in: (2) denying her motion to quash service in the contempt proceedings; (3) finding her refusal to sign the listing agreement to be contemptuous; or (4) entering a purge order that exceeded the scope of its enforcement authority.
¶ 17 A. Motion to Vacate the September 12, 2012, Order
¶ 18 We first consider whether the trial court erred when, on October 31, 2012, it denied the section 2-1301(e) petition to set aside the September 12, 2012, order to sign the listing agreement and allow a new evidentiary hearing on value and agent. Section 2-1301(e) states that "[t]he court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable." 735 ILCS 5/2-1301(e) (West 2012). The court retains inherent power to vacate any of its judgments within 30 days upon good cause shown. Trojan v. Marquette National Bank, 88 Ill. App. 2d 428, 437-38 (1967). Whether to vacate a judgment remains within the sound discretion of the trial court. In re Marriage of Romashko, 212 Ill. App. 3d 1018, 1024 (1991). We may reverse the trial court's decision on a motion to vacate where it abused its discretion or where a substantial injustice may otherwise result. Rockford Housing Authority v. Donahue, 337 Ill. App. 3d 571, 574 (2003). ¶ 19 Here, Nancy argues that the September 12, 2012, order to sign the listing agreement should be set aside because: (1) the trial court did not consider all of the evidence (i.e., Nancy's responsive letter); and (2) Nancy did not have an attorney at the time the order was entered. ¶ 20 Nancy's first argument is not properly presented pursuant to Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013), and is, therefore, forfeited. The only case Nancy cites in this portion of her argument, Department of Health Care and Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 12 (concerning appellate jurisdiction over interlocutory appeals as of right), is off-point. Here, at the motion to vacate, the trial court stated that it had not considered Nancy's responsive letter at the September 12, 2012, hearing, because Nancy had not appeared to authenticate it. Nancy's attorney then agreed with that assessment. Here, Nancy presents no case law concerning the rules of authentication, essentially conceding the point. ¶ 21 Nancy next argues that, upon her attorney's withdrawal, the trial court should have waited 21 days before holding the next hearing. She points to Rule 13, which states that an attorney who moves to withdraw must give reasonable notice of the hearing on the motion and that such notice shall advise the party to retain other counsel or to file with the clerk of the court, within 21 days of the withdrawal, a supplementary appearance stating therein an address at which service may be had upon him or her. Ill. S. Ct. Rule 13(c)(2). Courts applying Rule 13 have held that granting an attorney's motion to withdraw without affording the party 21 days to obtain other counsel violates the spirit of the Rule, and, if the trial court does not want to delay the proceeding, it should deny the motion to withdraw. Ali v. Jones, 239 Ill. App. 3d 844, 849 (1993) (court erred in denying continuance to obtain new counsel). Further, in the spirit of Rule 13, nothing prejudicing a client's rights should occur within the 21 days following the allowance of an attorney's withdrawal. In re Marriage of Miller, 273 Ill. App. 3d 64, 69 (1995) (court erred in denying continuance to obtain new counsel). ¶ 22 The instant fact pattern does not warrant relief under Rule 13. Nothing prejudicing Nancy's rights occurred within 21 days of her attorney's withdrawal. Counsel was granted leave to withdraw on August 21, 2012, and the next hearing that could have potentially prejudiced Nancy occurred on September 12, 2012, 22 days later. Nancy does not challenge this fact; rather, she complains that two other hearings took place within the 21-day period: a fee arbitration for one of Nancy's five prior law firms (August 23, 2012) and a status hearing (August 28, 2012). However, the fee arbitration concerned a completely different matter. Neither of these hearings had the potential to prejudice the results of the order that is the subject of Nancy's motion to vacate. We cannot say that the trial court abused its discretion in denying the motion to vacate the order to sign the listing agreement drafted just over one month prior.
¶ 23 B. Contempt Proceedings
¶ 24 Nancy next challenges the trial court's finding of contempt and its corresponding purge orders. She also challenges its denial of her motion to quash service of the contempt petition, which we briefly address and reject. ¶ 25 Nancy argues that the trial court erred in denying the motion to quash service. Nancy argues that, by not allowing the special process server to testify, the court essentially made the presumption of service irrebuttable. She cites People v. Watts, 181 Ill. 2d 133, 150 (1998), which held unconstitutional a criminal statute that created an irrebuttable presumption of guilt. Watts is inapposite because it involves the constitutionality of a criminal statute, whereas our case involves service in a post-dissolution contempt proceeding. ¶ 26 We frame the court's decision on the process server's testimony as an evidentiary ruling, which we review for abuse of discretion. See, e.g., In re Marriage of Hartian, 172 Ill. App. 3d 440, 447 (1988) (it is within the court's discretion to limit witness testimony). Here, we cannot say the trial court abused its discretion in denying Nancy's attorney's request to have the process server called in for examination at the eleventh hour where that process server had already submitted an affidavit and where Nancy herself knew of the hearing but did not appear. ¶ 27 We now proceed to the merits of the contempt issues. Indirect contempt occurs outside the presence of the trial court. In re Marriage of Tatham, 293 Ill. App. 3d 471, 480 (1997). Proof of willful disobedience of a court order is essential to any finding of indirect civil contempt. Id. Once the petitioner establishes by a preponderance of the evidence that a violation occurred, the alleged contemnor has the burden of showing that the violation was not willful and contumacious and that he or she had a valid excuse for failing to follow the order. In re Marriage of Charous, 368 Ill. App. 3d 99, 107 (2006). Contumacious behavior consists of "conduct calculated to embarrass, hinder, or obstruct a court in its administration of justice or [conduct] lessening the authority and dignity of the court." Id. at 108 (internal quotes omitted). Whether a party is guilty of contempt is a question of fact for the trial court, and a reviewing court should not disturb the trial court's determination unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. In re Marriage of Logston, 103 Ill. 2d 266, 286-87 (1984); cf. In re Marriage of Barile, 385 Ill. App. 3d 752, 759 n.3 (2008) (applying the Logston standard despite the supreme court's general advisement in People v. Vincent, 226 Ill. 2d 1, 17, n.5 (2007), against application of the abuse-of-discretion standard to findings of fact). However, even where a trial court properly finds behavior to be contemptuous, the contemnor must be capable of purging the contempt. See, e.g., City of Chicago v. Drovers National Bank, 36 Ill. App. 3d 296, 298 (1976). ¶ 28 Here, we cannot say the trial court abused its discretion in finding that Nancy's behavior was contemptuous. She refused to sign the court-ordered listing agreement following this court's denial of stay, and she failed to attend the majority of the hearings. Nevertheless, we temper this affirmation of the contempt finding with a note that we do understand Nancy's conundrum. If this court in appeal 2013 IL App (2d) 120745 were to have reversed the trial court's order to sell the home, the home would no longer be available to Nancy to raise her daughter in until graduation. While Nancy's appeal was ultimately unsuccessful, this court did not find frivolous her argument that the court should avoid selling the marital residence so as to provide stability and continuity for the minor child. Chapa, 2013 IL App (2d) 120745, ¶¶ 26-27 ("We understand why Nancy would want to continue to raise Miranda in the marital residence. However, we cannot say that the trial court abused its discretion in ordering the sale. *** Despite an equal split of high earnings, the trial court may have reasonably concluded that obligations from the marital residence would have been difficult to meet without further controversy and return to court"). Therefore, given that Nancy's appeal was not frivolous and her refusal to sign the listing agreement, in part, was based on the pending appeal, affirming the trial court's finding of contempt is a very close call. Guided mainly by deference to the trial court in managing its court call, we affirm the finding of contempt. However, such discretion is not without limit and the bounds of equity. ¶ 29 Pursuant to our authority under Illinois Supreme Court Rule 366(a) (eff. February 1, 1994) (powers of the reviewing court), we have, however, determined that equity requires a modification of the purge order. The sale of this luxury home presents an unusual situation. It is common knowledge that, due to fluctuations in the real estate market over the last five years, home values have changed substantially from year to year. The $1.85 million figure set forth on the 2012 listing agreement may no longer adequately represent the value of the home as compared to similar luxury homes in the downtown Hinsdale neighborhood. It is due to this court's docket that so much time has passed since the 2012 listing agreement was drafted. A 5%-plus increase in the housing market could mean approximately $100,000 for the parties. Even if the value of the home were to have dropped in the last year, it is in keeping with the court's intent for a prompt sale within a reasonable time frame that an appropriate 2013 list price be determined. It remains for the trial court to balance the priority of a reasonable time frame against the priority of maximizing assets. To do this, the court must know the current value of the home. Therefore, we direct the trial court to hear evidence as to value, and, if appropriate, amend the listing agreement accordingly. Nancy cannot be ordered to sign the listing agreement until given this opportunity. The evidentiary hearing on current value shall be held not less than 30 days from the date that the mandate in this appeal is filed. ¶ 30 We enter this ruling with firm boundaries. This sale will move forward, and this opportunity to present evidence as to value will not be used by Nancy as a means to delay listing the house for sale. If, upon this remand, either party does not promptly, within the framework provided, present evidence as to value, then the trial court may rule the opportunity lost. Should either party decline this opportunity, the purge order to sign the existing listing agreement remains in effect. ¶ 31 We also modify the purge order to omit the condition that Nancy sign the quit-claim deed. This order is problematic for two reasons. First, the order that Nancy sign the quit-claim deed is imprecise. It is unclear whether Daniel must seek court approval before he records the quit-claim deed, or whether he may unilaterally decide that Nancy is uncooperative. Second, the order that Nancy sign the quit-claim deed changes Nancy's property rights based on hypothetical, future conduct. Although a trial court retains jurisdiction to enforce its judgments indefinitely, it may not modify or revoke a property disposition after 30 days from the final and appealable order (unless conditions exist to justify the reopening of a judgment under the Illinois law). In re Marriage of Hubbard, 215 Ill. App. 3d 113, 116 (1991); 750 ILCS 5/510(b) (West 2012). As the court itself noted, the order to sign the quit-claim deed could affect Nancy's property right to live in the marital residence until sold. See Taber v. Taber, 248 Ill. App. 3d 435, 438 (1993) (award of exclusive possession of the marital residence unambiguously constituted a property disposition that could not be modified rather than an modifiable award of support). It could also prevent her from weighing in on whether to accept a low offer on the sale, even if her input is reasonable. We cannot say the conditions justify reopening the disposition on the property rights of the parties. Although purge orders may be prospective in nature with the aim to coerce compliance with a valid court order (In re Marriage of Doty, 255 Ill. App. 3d 1087, 1095 (1994)), purge orders should not be used to correct conditions that have not yet occurred. The term "purge," itself implies an amends for past behavior. See, e.g., Logston, 103 Ill. 2d at 289 (a person found in contempt must be given the "keys to his cell" and the ability to purge his contemptuous behavior). The trial court is convinced that Nancy will obstruct the sale at all costs, stating: [I]f *** she's not being cooperative and she's leaving the house in a mess or, you know, stuffing the toilets, making it smell so people don't like it, or doing what—God knows what else." This is an extreme hypothetical, the probability of which is not borne out by the record. To date, Nancy has simply refused to sign a listing agreement, in part due to a pending, non-frivolous appeal, and has failed to appear at multiple hearings. ¶ 32 From this point forward, with the appeal on the merits resolved and the order to sell the home affirmed (Chapa, 2013 IL App (2d) 120745), we expect that, after the one-time opportunity for an amendment to the opening list price has passed, each party will sign the listing agreement and otherwise cooperate with the sale. In the event that either party does not sign the listing agreement at that point, the trial court may utilize the traditional contempt measure of jail pending purge through the signing of the listing agreement.
¶ 33 III. CONCLUSION
¶ 34 For the aforementioned reasons, we affirm the trial court's denial of the motion to vacate and finding of contempt. However, we modify the purge order and remand with directions. ¶ 35 Affirmed as modified and remanded with directions.