In re Marriage of Krilich

2023 IL App (1st) 221198

• Court: Appellate Court of Illinois
• Decided: March 6, 2023
• Docket: 1-22-1198
• Status: Published

Opinion

2023 IL App (1st) 221198 FIRST DISTRICT, FIRST DIVISION March 6, 2023

No. 1-22-1198

In re MARRIAGE OF LILLIAN R. KRILICH, ) Petitioner, ) ) and ) ) ROBERT R. KRILICH, ) Appeal from the Respondent ) Circuit Court of ) Cook County, Illinois. (Sandra Schnakenburg, as Executor of the Estate of ) Lillian R. Krilich and on Her Own Behalf; Roseann ) No. 1981 D 14012 Loesch; Debbie Sebek; Robin Keel; Barbara Berry; ) and Robert Krilich Jr., ) Honorable ) Regina A. Scannicchio, Petitioners-Appellees, ) Judge Presiding. v. ) ) Donna J. Krilich and Walter L. Morgan, ) ) Respondents-Appellants). )

JUSTICE COGHLAN delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Hyman concurred in the judgment and opinion.

OPINION

¶1 In 1985, a judgment for dissolution of marriage was entered for Robert Krilich and

Lillian Krilich requiring both parties to leave at least half of their respective estates to children or

grandchildren of the marriage. In 2020, Robert executed a will that allegedly failed to comply

with the terms of the judgment. Following Robert’s death in 2021, his children brought a petition

to enforce the judgment against the representatives of Robert’s estate (Donna Krilich and Walter

Morgan) (collectively, respondents). No. 1-22-1198

¶2 Respondents moved to dismiss for lack of jurisdiction, alleging that Robert was

domiciled in Florida at the time of his death, he owned no Illinois real estate, and respondents

themselves had no contacts with Illinois that would subject them to personal jurisdiction. The

circuit court denied the motion, and we granted leave for respondents to file an interlocutory

appeal pursuant to Illinois Supreme Court Rule 306(a)(3) (eff. Oct 1, 2020). For the reasons that

follow, we affirm.

¶3 BACKGROUND

¶4 On January 30, 1985, a judgment for dissolution of marriage was entered in the circuit

court of Cook County for Robert and Lillian. The judgment stated “[t]hat the court retain[s]

jurisdiction of the parties and of the subject matter until this Judgment shall be fully satisfied”

and incorporated a separation agreement providing, in relevant part, that “WIFE and HUSBAND

agree to execute wills within 30 days of decree leaving not less than 50% of their respective

estates to children or grandchildren of this marriage.” The children of the marriage are Sandra

Schnakenburg, Roseann Loesch, Debbie Sebek, Robin Keel, Barbara Berry, and Robert Krilich

Jr. (collectively, the Krilich Children or petitioners).

¶5 Lillian died on December 27, 2008, and her daughter Sandra was appointed as executor

of her estate. Robert died on March 4, 2021. He was domiciled in Florida at the time of his death.

His last will and testament, executed on October 15, 2020, left his estate to a pass-through trust

(The Flamingo Trust) of which Donna Krilich, his second wife, is the primary beneficiary, with

the Krilich Children as remainder beneficiaries. Donna and Walter Morgan were named as

representatives of his estate.

¶6 On April 13, 2021, the Krilich Children filed a “Petition to Enforce Judgment for

Dissolution of Marriage, or in the Alternative, for Adjudication of Indirect Civil Contempt and

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for Other Relief” in the circuit court of Cook County “against [Robert] by and through [Donna]

and [Morgan], as the nominated Co-Personal Representatives of the decedent’s estate.” The

Krilich Children “petition[ed] this Honorable Court to enforce” the January 30, 1985, dissolution

judgment against Robert’s estate, which they alleged “comprised *** various businesses,

interests in real estate, marketable securities and cash valued in the hundreds of millions of

dollars.” In the alternative, they requested that the court issue a rule to show cause against

respondents, requiring them to show cause why the estate should not be held in indirect civil

contempt of court for failure to comply with the dissolution judgment.1

¶7 On January 7, 2022, respondents moved to dismiss the petition for lack of personal and

subject matter jurisdiction. Regarding personal jurisdiction, respondents alleged that they “have

no contacts with Illinois that would subject them to personal jurisdiction by an Illinois court” and

Robert “did not own any property located in Illinois” except for “a small strip of unimproved

land *** which will be abandoned by his estate.” Regarding subject matter jurisdiction,

respondents argued that “[t]his Court does not have jurisdiction to control the distribution of the

assets of a Florida estate.”

¶8 Petitioners filed a response arguing that the trial court retained jurisdiction to enforce its

dissolution judgment under Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291,

297-98 (2000) (“Where a domestic relations order has been entered, the trial court retains

jurisdiction to enforce its order [citation], as further performance by the parties is often

contemplated.”). They argued that respondents’ assertion that “Donna and Walter, individually,

do not have sufficient contacts with the State of Illinois for this Court to exert personal

1 The Krilich Children additionally filed claims in Robert’s Florida probate estate (In re Estate of Krilich, No. PRC210001300 (Cir. Ct. Broward County, Fla.)) and instituted a Florida action against respondents seeking the same relief as in the instant petition (Schnakenburg v. Krilich, No. CACE 21- 016410 (Cir. Ct. Broward County, Fla.)). -3- No. 1-22-1198

jurisdiction over them” was “a straw man argument” because the suit was not brought against

them as individuals, but against Robert’s estate. Respondents’ argument that Robert lacked

property in Illinois was “even more risible” because “a divorce occurred in Illinois, and [ ] the

divorce judgment can be enforced where it is entered.”

¶9 Sandra filed an affidavit in support of petitioners’ response, attesting that Robert’s estate

“has numerous business interests and property located and/or based in Illinois,” listing nine

corporations or limited liability companies owned by Robert that were organized under Illinois

law and/or owned Illinois real estate. She stated that “[a]t a bare minimum, there remains a

question outstanding as to the situs of the property of the estate, such that a material issue of fact

exists.”

¶ 10 On July 15, 2022, the trial court entered an order stating:

“1. The Court retains jurisdiction of the parties and the subject matter to proceed

with the Petition to Enforce; and

2. The relief sought by the movant in this proceeding is not similar to the probate

action pending in a foreign jurisdiction.”

¶ 11 Respondents filed a petition for leave to appeal pursuant to Illinois Supreme Court Rule

306(a)(3) (eff. Oct 1, 2020) (allowing permissive interlocutory appeals “from an order of the

circuit court denying a motion to dismiss on the grounds that the defendant has done nothing

which would subject defendant to the jurisdiction of the Illinois courts”), which this court

granted.

¶ 12 ANALYSIS

¶ 13 Respondents challenge the court’s subject matter jurisdiction over the instant petition and

the court’s personal jurisdiction over them. Subject matter jurisdiction “refers to a court’s power

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both to adjudicate the general question involved and to grant the particular relief requested.”

In re Estate of Gebis, 186 Ill. 2d 188, 192 (1999). Personal jurisdiction is the court’s “ability to

apply its subject matter jurisdiction to an individual.” In re Adoption of E.L., 315 Ill. App. 3d

137, 149 (2000). An action taken by a court without personal and subject matter jurisdiction is

void. Gebis, 186 Ill. 2d at 193; E.L., 315 Ill. App. 3d at 149.

¶ 14 The Krilich Children brought their petition “to enforce the terms of the Judgment for

Dissolution of Marriage” against Robert’s estate. “It is an elementary principle of law that a

court is vested with the inherent power to enforce its orders.” Smithberg, 192 Ill. 2d at 297; see

also In re Estate of Steinfeld, 158 Ill. 2d 1, 19 (1994) (once a court has jurisdiction over both the

parties and the subject matter, it has “inherent power to enforce its orders by way of contempt”).

“Where a domestic relations order has been entered, the trial court retains jurisdiction to enforce

its order [citation], as further performance by the parties is often contemplated.” Smithberg, 192

Ill. 2d at 297-98. Moreover, “one who accepts any of the benefits of a divorce decree, including

the right to remarry, is estopped from challenging the jurisdiction of the court over either the

person or the subject matter of the decree.” In re Robertson, 151 Ill. App. 3d 214, 222-23 (1986)

(collecting cases). It is undisputed that the circuit court had jurisdiction over the original

dissolution action in 1985; thus, it retains jurisdiction to enforce its judgment.

¶ 15 Smithberg, 192 Ill. 2d 291, is instructive. A judgment of dissolution of marriage was

entered for James and Nancy Smithberg requiring James to designate Nancy as the sole recipient

of his pension death benefit. Id. at 292-93. Subsequently, in violation of the court’s order, James

designated his second wife, Delores, as the recipient of his death benefit. Nancy filed a petition

for rule to show cause why James should not be held in contempt for violating the judgment, but

James died before the petition was ruled upon. Id. at 293-94. Our supreme court held:

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“In the case of the court that rendered James and Nancy’s judgment of dissolution,

jurisdiction was expressly retained for the purpose of enforcing all of its terms and

conditions. Had James lived, there is no doubt that he could have been compelled by the

use of contempt proceedings to abide by the terms of his marital settlement agreement as

incorporated in the court’s judgment. His death, however, does not leave the courts

powerless to rectify his wrongdoing and enforce Nancy’s right to the death benefit.” Id. at

298.

“Irrespective of empowering statutes,” the court retained its “traditional equitable powers”

“derived from the historic power of equity courts” and “should have employed them to afford

Nancy relief.” Id.

¶ 16 Likewise, in the case at bar, the court expressly retained jurisdiction to enforce the terms

and conditions of the judgment of dissolution, pursuant to its inherent power to enforce its

orders, and Robert’s death “does not leave the courts powerless” to rectify his alleged

wrongdoing. Id. at 297-98. 2

¶ 17 Respondents argue that the Krilich Children “have no jurisdiction to interfere with the

administration of an estate probated in Florida,” relying on Keats v. Cates, 100 Ill. App. 2d 177

(1968). Keats did not involve a court’s inherent authority to enforce its own judgments. In 1944,

Mr. and Mrs. Cates made an agreement to execute reciprocal wills and not to modify said wills

without the other’s consent. Id. at 182. Mr. Cates later moved to California and unilaterally

2 We note that the parties extensively discuss Hayden v. Wheeler, 33 Ill. 2d 110 (1965), in which decedent, a Wisconsin resident, was involved in a fatal car collision in Illinois. In the resulting personal injury suit, our supreme court held that Illinois courts could properly exert jurisdiction over the administrator of the decedent’s estate in Wisconsin because of the decedent’s “alleged commission of a tortious act within this State.” Id. at 111. Hayden is not applicable here, since it is not alleged that Robert committed any tortious act in Illinois. -6- No. 1-22-1198

executed a new will. Id. at 182-83. After his death, the beneficiaries of the 1944 will filed suit in

the circuit court of Illinois against the executor of his new will. Under those facts, we held:

“[W]e must adhere to the general proposition that one state cannot assert jurisdiction over

a foreign executor when the jurisdiction is predicated simply upon the execution in that

state of a contract to make a will. The disposition of personal property having its situs in

California should be left to the California courts.” Id. at 188.

In contrast, the circuit court’s jurisdiction in this case is not “predicated simply upon the

execution [in Illinois] of a contract to make a will” (emphasis added); it is predicated upon a

judgment which it explicitly retained jurisdiction to enforce. Insofar as the Krilich Children seek

to enforce the terms of the 1985 dissolution judgment, the trial court correctly stated that “[t]he

relief sought by the movant in this proceeding is not similar to the probate action pending in a

foreign jurisdiction.” 3

¶ 18 Respondents additionally claim the Krilich Children “cannot enforce the Judgment

against [respondents] because [respondents] are not parties to the Judgment.” Respondents are

not being sued as individuals, but in their capacity as representatives of Robert’s estate. A

representative “steps into the shoes of the decedent” (Moon v. Rhode, 2016 IL 119572, ¶ 39), and

“an action on a claim against a decedent which arose in his lifetime lies against the administrator

in his representative capacity” (Puhrman v. Ver Vynck, 99 Ill. App. 3d 1130, 1132 (1981)). Cf.

In re Estate of Jagodowski, 2017 IL App (2d) 160723, ¶ 56 (under the Illinois Parentage Act of

2015 (750 ILCS 46/602(j) (West 2016)), “the administrator of an estate, as the deceased’s legal

3 In their petition, the Krilich Children make some allegations unrelated to enforcement of the dissolution judgment, claiming that Robert experienced “material regression in his mental capacity in the last 18-months of his life” and that his will may not reflect his wishes for his estate. These allegations are outside the scope of the circuit court’s jurisdiction, which extends only to its “inherent power to enforce its orders” (Smithberg, 192 Ill. 2d at 297). -7- No. 1-22-1198

representative, stands in the deceased’s shoes”). The petition is brought against Robert “by and

through [Donna] and [Morgan], as the nominated Co-Personal Representatives of the decedent’s

estate.” Thus, an action will lie against respondents in their capacity as Robert’s legal

representatives.

¶ 19 Respondents next argue the circuit court lacks quasi in rem jurisdiction over Robert’s

estate, citing Golden Rule Insurance Co. v. Widoff, 291 Ill. App. 3d 112 (1997). In rem or quasi

in rem jurisdiction (i.e., “[j]urisdiction based on property”) represents “an alternative to

in personam jurisdiction” where personal jurisdiction over a defendant cannot be secured in the

forum state. (Internal quotation marks omitted.) In re Marriage of Kosmond, 357 Ill. App. 3d

972, 976 (2005). Because the circuit court retained personal jurisdiction over Robert to enforce

the terms of the dissolution judgment, and respondents stand in Robert’s shoes as the legal

representatives of his estate, quasi in rem jurisdiction is not required. See id. (quasi in rem

jurisdiction was not required where “the circuit court properly exercised in personam jurisdiction

over all interested parties”).

¶ 20 In Golden Rule, Rosemarie, a Florida resident, died in a car crash, and the representative

of her estate settled with the other party involved in the accident. Rosemarie’s insurer sued the

representative, alleging that the settlement violated the insurance contract and seeking to enjoin

the representative from distributing the funds received in the settlement. Golden Rule, 291 Ill.

App. 3d at 113-14. We affirmed the dismissal of the suit for lack of jurisdiction, explaining that

“plaintiff is not seeking to hold Rosemarie’s estate liable for anything. Indeed, plaintiff has not

alleged that Rosemarie committed any act that would render her estate liable to plaintiff. Instead,

plaintiff desires an Illinois court to control the distribution of the assets of a Florida estate.” Id. at

115. Because plaintiff was “not seeking a ‘personal’ obligation from either the personal

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representative or Rosemarie’s estate,” we found that “plaintiff’s claim requires quasi in rem

jurisdiction” which “affects the interests of particular persons in [the] designated property.”

(Internal quotation marks omitted.) Id. at 115-16. Since “the basis of *** quasi in rem

jurisdiction ‘is the presence of the subject property within the territorial jurisdiction of the forum

State,’ ” and Rosemarie’s assets were located in Florida, the Illinois court lacked jurisdiction

over the claim. Id. at 116. Here, by contrast, petitioners are seeking a personal obligation from

Robert’s estate based on his alleged violation of the terms of the 1985 dissolution judgment.

Thus, respondents’ reliance on Golden Rule is misplaced.

¶ 21 Finally, respondents argue that the relief sought in the petition is “barred by Florida law”

because it “effectively seeks to impose a constructive trust on the assets of the Decedent’s estate

and obtain a priority over other Estate creditors.” In support, they cite Lefkowitz v. Schwartz, 299

So. 3d 549, 554 (Fla. Dist. Ct. App. 2020), holding that a Florida court exceeded its statutory

mandate under the Florida Probate Code by imposing a constructive trust over estate assets that

“gave [appellee’s] claim priority over all other creditors of the estate” in contravention of section

733.705(5) of the Florida Probate Code, which provides that “a judgment establishing the claim

shall give it no priority over claims of the same class to which it belongs” (Fla. Stat. § 733.705

(2017)). Here, the circuit court’s authority to adjudicate the instant petition does not derive from,

and is not limited by, the Florida Probate Code, but comes from the “elementary principle of law

that a court is vested with the inherent power to enforce its orders.” Smithberg, 192 Ill. 2d at 297.

Lefkowitz does not govern the enforcement of an Illinois judgment by an Illinois court.

¶ 22 Because we find the circuit court has jurisdiction of this action pursuant to its inherent

power to enforce its own orders, we need not address petitioners’ contention that a material issue

of fact exists as to the situs of Robert’s estate.

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¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, we affirm the trial court’s July 15, 2022, order finding that it

retains jurisdiction of the parties and the subject matter of the instant petition.

¶ 25 Affirmed.

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In re Marriage of Krilich, 2023 IL App (1st) 221198

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 1981-D- 14012; the Hon. Regina A. Scannicchio, Judge, presiding.

Attorneys Lawrence M. Benjamin, of Reed Smith LLP, of Chicago, for for appellants. Appellant:

Attorneys Judd Z. Fineberg, of Dussias Wittenberg Koenigsberger, LLP, of for Chicago, for appellees. Appellee:

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