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In re Marriage of Schmitt
State: Illinois
Court: 2nd District Appellate
Docket No: 2-00-0925 Rel
Case Date: 04/25/2001

April 25, 2001

No. 2--00--0925


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re MARRIAGE OF SANDRA L. SCHMITT,

         Petitioner-Appellee,

and

KIM A. SCHMITT,

          Respondent-Appellant.

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Appeal from the Circuit Court of
Kane County.


No. 00--DK--0168

Honorable
Patricia Piper Golden,
Judge, Presiding.

 

JUSTICE GROMETER delivered the opinion of the court:

Sandra L. Schmitt filed a petition for dissolution of marriage fromrespondent, Kim A. Schmitt. This interlocutory appeal concerns two separateorders entered by the circuit court of Kane County with respect to petitioner'spetition. One order directed respondent to pay certain monies to or on behalf ofpetitioner and to perform certain acts for petitioner's benefit. The second orderenjoined respondent and others from taking certain actions with respect tospecified and unspecified assets. Respondent argues that the trial court's ordersare void ab initio because the trial court failed to acquire personal jurisdictionover him. Respondent also contends that the trial court abused its discretion inentering its orders. We affirm.

I. FACTS

On February 4, 2000, petitioner filed a petition for dissolution of marriagefrom respondent. On May 2, 2000, petitioner filed the following four pleadings:(1) petition for leave to file an amended petition naming additional respondentsin discovery and for the appointment of a sequestrator to marshal certain assetsowned directly or indirectly by respondent; (2) motion for temporary support; (3)petition for interim attorney fees and costs; and (4) petition for preliminaryinjunction.

On May 30, 2000, the trial court granted petitioner leave to file heramended petition for dissolution of marriage. The court's order also recognizedthat respondent had not been served with a summons. The case was continued.

On July 13, 2000, petitioner filed a "Motion for Service by Special Orderof the Court." See 735 ILCS 5/2--203.1 (West 1998). In her motion, petitionerexplained that a summons, a first alias summons, and a second alias summons werereturned "not found." Petitioner alleged that respondent "willfully andintentionally engaged in a course of conduct calculated to evade service ofprocess" and that respondent's "intentional evasion effort makes it impracticalto serve him under" either subsection 2--203(a)(1) or (a)(2) of the Illinois CivilPractice Law (735 ILCS 5/2--203(a)(1), (a)(2) (West 1998)). The motion furtheralleged that respondent was intentionally evading service of process "so that hecan continue to transfer and dissipate assets before this Court gains control overthe marital estate." The motion identified three individuals upon whom substituteservice could be made: (1) Lois Schmitt, respondent's mother; (2) CatherineBoness, respondent's alleged paramour and an employee of a corporation owned orcontrolled by respondent; and (3) Stephen Sullivan, an attorney who representedrespondent in an unrelated Kane County case. The motion also identified the lawfirm of Pancratz, Riffner & Scott, L.P.P. (Pancratz). Pancratz representedrespondent in a dissolution of marriage proceeding that he filed in the circuitcourt of Cook County. That proceeding was voluntarily dismissed.

Attached to petitioner's motion was the affidavit of William B. Bochte, oneof petitioner's attorneys. Bochte stated that two different private investigationagencies had been unable to locate respondent. Bochte also averred that theindividuals and the law firm identified in the motion have access to andcommunication with respondent on a consistent and regular basis.

Attached to Bochte's affidavit was the affidavit of and an investigativereport prepared by Terry Vincent, a registered private detective retained bypetitioner. The investigative report detailed Vincent's efforts to serverespondent between May 26, 2000, and June 6, 2000. Additionally, in hisaffidavit, Vincent averred that between June 15, 2000, and June 26, 2000, he made11 unsuccessful attempts to serve respondent.

On July 13, 2000, the trial court granted petitioner's motion for serviceof summons by special order of the court. The court concluded that service uponrespondent was impractical under subsection (a)(1) or (a)(2) of section 2--203 ofthe Illinois Civil Practice Law. 735 ILCS 5/2--203(a)(1), (a)(2) (West 1998). Accordingly, the court ordered service upon respondent by "leaving a copy ofsummons and petition with any two of the following five individuals or entitiesand thereafter mailing a copy in a sealed envelope with postage fully prepaidaddressed to the [respondent] in care of any two of the individuals or entitiesserved." The court further ordered that one of the two individuals or entitiesserved must be an attorney. Although the order purported to list five individualsor entities upon which service could be made, there were actually only four suchindividuals or entities. The order listed Boness at both her home address and herwork address. The other three individuals or entities were Lois Schmitt,Sullivan, and Pancratz.

Copies of the summons and return filed on July 17, 2000, show that thefollowing three individuals were served: Stephen Sullivan, Catherine Boness, andPat Dusek, a secretary with Pancratz.

On July 25, 2000, Sullivan filed a special and limited appearance for thepurpose of filing a motion to quash service of summons on respondent. In hismotion, Sullivan stated that he has never represented respondent in an individualcapacity in any legal matter. Sullivan acknowledged that he representedrespondent's business in an annexation matter. However, Sullivan explained that the annexation matter concluded six months prior to the court's July 13, 2000,order. Sullivan averred that he "does not have, and has never had, personalcontact with [respondent] so as to afford him opportunity to notify him concerningthe service of summons."

The law firm of Riffner & Scott, P.C. (formerly Pancratz), also filed averified motion to quash service of process. In its motion, the law firm deniedthat it had access to or communications with respondent. The law firm admittedthat it had represented respondent in a proceeding for marriage dissolution filedin the circuit court of Cook County. However, that case was voluntarily dismissedon May 9, 2000. At that time, the law firm explained, its attorney-clientrelationship with respondent ceased. Further, the law firm stated that it did notrepresent respondent in any other matters and it did not know respondent'swhereabouts.

The trial court denied both motions to quash service. The cause wascontinued to August 1, 2000, for a hearing on the pending motions and the statusof the notification of respondent by the individuals served with process.

On August 1, 2000, Lyle Haskins filed a special and limited appearance onbehalf of respondent. Haskins also filed "Objections to Service of ProcessPursuant to Special and Limited Appearance." Haskins alleged that the affidavitfiled in support of petitioner's motion for service by special order of the courtwas false, misleading, and perjurious. Haskins further alleged that petitioner'smotion for service by special order was a "fraud on the court designed todisenfranchise respondent and prevent him from exercising his rights to proceduraland substantive due process." The trial court overruled respondent's objections. The court subsequently denied Haskins's request for a finding pursuant to SupremeCourt Rule 304(a) (155 Ill. 2d R. 304(a)) that there is no just cause for delayingan appeal.

On August 2, 2000, the court entered two separate orders. The first rulingwas entitled "Order for Preliminary Injunction." This order enjoined andrestrained respondent, his officers, agents, employees, attorneys, and thosepersons in active concert or participation with him, from "withdrawing, spending,disposing of, encumbering, transferring, pledging, secreting, hypothecating,mortgaging, assigning for collateral purposes or otherwise, or in any way directlyor indirectly alienating" any of the parties' assets "except in the ususal andordinary course of business after seventy-two (72) hour written notice to the[petitioner] and her attorney."

The second ruling was simply labeled an "Order." It required respondent "topay and keep current the mortgage on the marital residence *** includingprincipal, interest, taxes and insurance." The order also required respondent "topay and keep current all automobile, life, and health insurance covering the[petitioner] and the vehicle in [petitioner's] use." In addition, the orderdirected respondent to pay petitioner (1) $10,000 per month as maintenance; (2)$5,000 for landscaping expenses and repairs necessary to the marital residence;and (3) $2,000 to offset travel expenses associated with transporting the parties'children to college. Further, the court awarded petitioner's law firm interimattorney fees of $30,000 and costs of $5,000. On August 11, 2000, respondentfiled a notice of interlocutory appeal pursuant to Supreme Court Rule 307(a) (seeOfficial Reports Advance Sheet No. 16 (August 9, 2000), R. 307(a), eff. July 6,2000) from the trial court's August 2, 2000, orders.

Subsequently, petitioner filed a citation to discover assets based uponrespondent's failure to satisfy the $30,000 judgment for attorney fees entered bythe trial court on August 2, 2000. On November 2, 2000, the trial court enteredan order requiring the trustees of several land trusts to prepare and executetrustees' deeds transferring the beneficial interest held by respondent topetitioner's counsel.

On November 29, 2000, respondent filed an emergency motion to stay the trialcourt's November 2, 2000, order. This court granted respondent's motion onNovember 30, 2000. Subsequently, petitioner filed (1) a motion to vacate ourNovember 30, 2000, order and (2) a motion to dismiss respondent's appeal. Respondent then filed a response to petitioner's motions. We ordered both motionsand respondent's response thereto taken with the case. We now deny petitioner'smotion to vacate our November 30, 2000, order. We discuss petitioner's motion todismiss below.

II. ANALYSIS

A. Motion to Dismiss

In her motion to dismiss respondent's appeal, petitioner argues thatrespondent waived any challenge to personal jurisdiction by filing with this courton November 29, 2000, the emergency motion to stay the trial court's November 2,2000, orders.

Prior to January 1, 2000, section 2--301 of the Illinois Civil Practice Law(735 ILCS 5/2--301 (West 1998)) provided in pertinent part:

"Special Appearance. (a) Prior to filing any other pleading ormotion, a special appearance may be made either in person or by attorney forthe purpose of objecting to the jurisdiction of the court over the personof the defendant. A special appearance may be made as to an entireproceeding or as to any cause of action involved therein. Every appearance,prior to judgment, not in compliance with the foregoing is a generalappearance." 735 ILCS 5/2--301 (West 1998).

However, effective January 1, 2000, section 2--301 was amended. Pub. Act 91--145,

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