Estate v. Erhardt

2018 IL App (2d) 170996, 129 N.E.3d 170, 432 Ill. Dec. 282
CourtAppellate Court of Illinois
DecidedOctober 25, 2018
DocketNo. 2-17-0996
StatusPublished
Cited by3 cases

This text of 2018 IL App (2d) 170996 (Estate v. Erhardt) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate v. Erhardt, 2018 IL App (2d) 170996, 129 N.E.3d 170, 432 Ill. Dec. 282 (Ill. Ct. App. 2018).

Opinion

JUSTICE BURKE delivered the judgment of the court, with opinion.

*285¶ 1 This appeal arises from a petition for the appointment of a guardian for Mary Baldassarre, an alleged disabled person, filed by her children, petitioners Thomas Baldassarre and Denise Bosh-Williams, after Mary was diagnosed with an inoperable brain tumor. Respondent, Arthur Erhardt, had been Mary's domestic partner for over 32 years. During the guardianship proceedings, the trial court found Arthur to be in indirect civil contempt of court and ordered him to be incarcerated for 30 days. Arthur appeals from the contempt finding and order of incarceration. We affirm in part, vacate in part, and remand the cause for further proceedings.

*286*174¶ 2 I. BACKGROUND

¶ 3 Arthur and Mary met after Mary's husband passed away. Mary's deceased husband was the father of their children, Denise and Thomas.

¶ 4 In May 2003, Arthur and Mary jointly purchased a home at 171 Franklin Street, Bloomingdale, Illinois (Franklin residence). The couple lived together until September 2016, when Mary was diagnosed with an inoperable brain tumor. After Mary was hospitalized and had biopsy surgery, she began living with Denise.

¶ 5 Conflicts arose between Arthur and Denise and Thomas shortly after Mary's diagnosis. On November 15, 2016, Thomas and Denise filed a joint petition for guardianship over Mary. Arthur filed a counterpetition seeking guardianship of the estate and Mary. The trial court appointed a guardian ad litem (GAL) on December 20, 2016, set dates and times for Arthur to visit with Mary, and affirmed Denise's health care power of attorney.

¶ 6 In early March 2017, Mary discovered that Arthur had been moving some of her money into accounts solely in Arthur's name since September, which Arthur admitted. Mary terminated her relationship with Arthur.

¶ 7 More bickering ensued over Mary's personal property located in the Franklin residence. On April 13, 2017, Mary filed an emergency motion for entry of the residence and return of the personal property, alleging that Arthur had repeatedly denied her access to her home and her belongings. On April 14, the court granted Mary's motion and ordered specific items returned to her, including her clothing, jewelry, baking items, and make-up. On the same date, Mary's children filed a citation to discover assets.

¶ 8 On April 20, 2017, the court suspended Arthur's power of attorney for property and froze all but one of Arthur's accounts, pending the turnover of financial documents. The citation to discover assets against Arthur was conducted in open court on April 27, 2017. During the citation hearing, Arthur admitted that he had Mary sign the title to her own vehicle and then he sold it for less than fair market value but never told Mary he sold it. He also admitted to changing the locks and alarm codes to the Franklin residence in the fall of 2016. Despite an earlier court order to turn over property, Arthur testified that he donated Mary's baking items without her knowledge. He also acknowledged that he had reviewed an April 5, 2017, letter from Mary's counsel to his own counsel requesting that specific items of Mary's personal property be returned. The court ordered all parties not to remove any personal property from the Franklin residence.

¶ 9 At a May 11, 2017, hearing, Arthur testified that he did not donate all of Mary's baking items as he previously testified and that he possessed Mary's items despite a prior court order to turn them over to her. The court ordered Arthur to provide the garage access code so that Mary could pick up some of her items that he had boxed up and arranged for pick-up.

¶ 10 On May 19, 2017, the parties entered into an agreed order settling some financial matters. The order also permitted Mary to remove a few items from the home such as make-up, high school yearbooks, purses, cookbooks, and cookie cutters.

¶ 11 On June 1, 2017, Mary and Arthur entered into an agreed order listing the Franklin residence for sale. The order specifically provided that "[a]ny property that Arthur Erhardt * * * has removed from the home shall be returned within 24 hours." The order further declared that Arthur "shall provide the location and access *175*287where all personal property has been relocated from the house."

¶ 12 Mary subsequently learned that Arthur allegedly had cleaned out nearly all of the property in the Franklin residence without leave of court and without notice to her. This property included many of her belongings that had been ordered returned to her. On August 9, Mary filed a petition for a rule to show cause against Arthur, alleging that he was in indirect civil contempt for violating two court orders, entered April 27 (which had been filed by the clerk on May 1) and June 1, respectively, by removing all or substantially all of the personal property from the Franklin residence and then failing to return it. Thomas and Denise joined in Mary's petition for a rule to show cause.

¶ 13 On August 9, Arthur filed an emergency motion to continue the hearing on the previously issued citation to discover assets. Arthur alleged a potential fifth-amendment issue because he was advised by counsel that Denise and Thomas had initiated a criminal complaint against him. There is no record of a criminal complaint being filed against Arthur. The court continued the citation hearing and ordered that no property was to be removed from the Franklin residence.

¶ 14 On August 11, Mary filed a citation to discover assets against Arthur. Mary alleged that Arthur had removed, destroyed, or converted all her personal property, in violation of standing court orders. She alleged that Arthur previously had admitted under oath that he gave away some of her personal property and sold her car. The discovery citation included a list of personal property that, despite the court orders, had not been tendered to Mary.

¶ 15 The court issued a rule to show cause against Arthur on August 23, 2017, and set a hearing for September 20, 2017, regarding any personal property not returned to the Franklin residence. The court ordered Arthur to return the interior of the Franklin residence to a condition the same as or substantially similar to that shown in photographs for the MLS listing of the property. On September 13, 2017, Mary filed an inventory of personal property not returned to the Franklin residence as of September 11, 2017.

¶ 16 At the September 20, 2017, evidentiary hearing on Mary's petition for a rule to show cause against Arthur, the court heard testimony from the GAL and Denise as to which specific items of personal property had been inside the Franklin residence, which items remained missing, and who had access to the house and on what terms. Arthur was called to testify, but he asserted his fifth-amendment right against self-incrimination and rested his case without providing any evidence.

¶ 17 On September 22, 2017, the court entered an order finding Arthur to be in "deliberate and ongoing indirect civil contempt" of its orders dated April 27 and June 1, 2017, for removing and then failing to return numerous items of personal property to the Franklin residence.

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Related

In re Estate of Baldassarre
2018 IL App (2d) 170996 (Appellate Court of Illinois, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
2018 IL App (2d) 170996, 129 N.E.3d 170, 432 Ill. Dec. 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-v-erhardt-illappct-2018.