In Re Marriage of Schmitt

747 N.E.2d 524, 321 Ill. App. 3d 360, 254 Ill. Dec. 484
CourtAppellate Court of Illinois
DecidedApril 25, 2001
Docket2-00-0925
StatusPublished
Cited by38 cases

This text of 747 N.E.2d 524 (In Re Marriage of Schmitt) 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
In Re Marriage of Schmitt, 747 N.E.2d 524, 321 Ill. App. 3d 360, 254 Ill. Dec. 484 (Ill. Ct. App. 2001).

Opinion

JUSTICE GEOMETER

delivered the opinion of the court:

Sandra L. Schmitt filed a petition for dissolution of marriage from respondent, Kim A. Schmitt. This interlocutory appeal concerns two separate orders entered by the circuit court of Kane County with respect to petitioner’s petition. One order directed respondent to pay certain monies to or on behalf of petitioner and to perform certain acts for petitioner’s benefit. The second order enjoined respondent and others from taking certain actions with respect to specified and unspecified assets. Respondent argues that the trial court’s orders are void ab initia because the trial court failed to acquire personal jurisdiction over him. Respondent also contends that the trial court abused its discretion in entering its orders. We affirm.

I. FACTS

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

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

On July 13, 2000, petitioner filed a “Motion for Service by Special Order of the Court.” See 735 ILCS 5/2—203.1 (West 1998). In her motion, petitioner explained that a summons, a first alias summons, and a second alias summons were returned “not found.” Petitioner alleged that respondent “willfully and intentionally engaged in a course of conduct calculated to evade service of process” and that respondent’s “intentional evasion effort makes it impractical to serve him under” either subsection 2—203(a)(1) or (a)(2) of the Illinois Civil Practice Law (735 ILCS 5/2—203(a)(1), (a)(2) (West 1998)). The motion further alleged that respondent was intentionally evading service of process “so that he can continue to transfer and dissipate assets before this Court gains control over the marital estate.” The motion identified three individuals upon whom substitute service could be made: (1) Lois Schmitt, respondent’s mother; (2) Catherine Boness, respondent’s alleged paramour and an employee of a corporation owned or controlled by respondent; and (3) Stephen Sullivan, an attorney who represented respondent in an unrelated Kane County case. The motion also identified the law firm of Pancratz, Riffner & Scott, L.EE (Pancratz). Pancratz represented respondent in a dissolution of marriage proceeding that he filed in the circuit court of Cook County. That proceeding was voluntarily dismissed.

Attached to petitioner’s motion was the affidavit of William B. Bochte, one of petitioner’s attorneys. Bochte stated that two different private investigation agencies had been unable to locate respondent. Bochte also averred that the individuals and the law firm identified in the motion have access to and communication with respondent on a consistent and regular basis.

Attached to Bochte’s affidavit was the affidavit of and an investigative report prepared by Terry Vincent, a registered private detective retained by petitioner. The investigative report detailed Vincent’s efforts to serve respondent between May 26, 2000, and June 6, 2000. Additionally, in his affidavit, Vincent averred that between June 15, 2000, and June 26, 2000, he made 11 unsuccessful attempts to serve respondent.

On July 13, 2000, the trial court granted petitioner’s motion for service of summons by special order of the court. The court concluded that service upon respondent was impractical under subsection (a)(1) or (a)(2) of section 2—203 of the 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 of summons and petition with any two of the following five individuals or entities and thereafter mailing a copy in a sealed envelope with postage fully prepaid addressed to the [respondent] in care of any two of the individuals or entities served.” The court further ordered that one of the two individuals or entities served must be an attorney. Although the order purported to list five individuals or entities upon which service could be made, there were actually only four such individuals or entities. The order listed Boness at both her home address and her work 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 the following three individuals were served: Stephen Sullivan, Catherine Boness, and Pat Dusek, a secretary with Pancratz.

On July 25, 2000, Sullivan filed a special and limited appearance for the purpose of filing a motion to quash service of summons on respondent. In his motion, Sullivan stated that he has never represented respondent in an individual capacity in any legal matter. Sullivan acknowledged that he represented respondent’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, personal contact with [respondent] so as to afford him opportunity to notify him concerning the service of summons.”

The law firm of Riffner & Scott, PC. (formerly Pancratz), also filed a verified motion to quash service of process. In its motion, the law firm denied that it had access to or communications with respondent. The law firm admitted that it had represented respondent in a proceeding for marriage dissolution filed in the circuit court of Cook County. However, that case was voluntarily dismissed on May 9, 2000. At that time, the law firm explained, its attorney-client relationship with respondent ceased. Further, the law firm stated that it did not represent respondent in any other matters and it did not know respondent’s whereabouts.

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

On August 1, 2000, Lyle Haskins filed a special and limited appearance on behalf of respondent. Haskins also filed “Objections to Service of Process Pursuant to Special and Limited Appearance.” Haskins alleged that the affidavit filed in support of petitioner’s motion for service by special order of the court was false, misleading, and perjurious. Haskins further alleged that petitioner’s motion for service by special order was a “fraud on the court designed to disenfranchise respondent and prevent him from exercising his rights to procedural and substantive due process.” The trial court overruled respondent’s objections. The court subsequently denied Haskins’s request for a finding pursuant to Supreme Court Rule 304(a) (155 111. 2d R.

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Cite This Page — Counsel Stack

Bluebook (online)
747 N.E.2d 524, 321 Ill. App. 3d 360, 254 Ill. Dec. 484, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-schmitt-illappct-2001.