In Re Marriage of Schweihs

650 N.E.2d 569, 208 Ill. Dec. 875, 272 Ill. App. 3d 653, 1995 Ill. App. LEXIS 326
CourtAppellate Court of Illinois
DecidedMay 5, 1995
Docket1—94—0610, 1—94—0829 cons
StatusPublished
Cited by30 cases

This text of 650 N.E.2d 569 (In Re Marriage of Schweihs) 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 Schweihs, 650 N.E.2d 569, 208 Ill. Dec. 875, 272 Ill. App. 3d 653, 1995 Ill. App. LEXIS 326 (Ill. Ct. App. 1995).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

The domestic relations court bifurcated divorce proceedings and dissolved the marriage of Daniel and Melinda Schweihs without resolving any other issues. The court then found that Daniel’s interest in a lawsuit in chancery was a marital asset, and the court ordered sale of the asset to Daniel’s opponents in the chancery litigation, in effect ordering a settlement of the case. Daniel appeals from the order for bifurcation in docket number 1 — 94—0610 and from the order for sale of the asset in docket number 1 — 94—0829. We find that the record shows adequate grounds for bifurcation, and the evidence supported the order for sale of the litigation interest. We state most pertinent facts in our opinion in the companion case of Disciplined Investment Advisors, Inc. v. Schweihs (1995), 272 Ill. App. 3d 681, due to our supreme court’s limitation on the lengths of our opinions.

I

Daniel contends that the orders for bifurcation and sale of the asset are void because the trial judge entered the orders after erroneously denying Daniel’s motion for substitution of judges. See Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 442, 517 N.E.2d 75.

Daniel’s mother, Veronica Schweihs, died in December 1990, leaving her four children an estate worth more than $400,000. In 1991, Melinda moved to add the executor of the estate as a party to the divorce case because the estate controlled assets from which Daniel could pay child support. At a hearing on September 8, 1992, on a motion for judgment on unpaid child support, the attorney for the executor of Veronica’s estate told the court that other heirs sought a judgment declaring that Daniel had exhausted his portion of the estate by living in Veronica’s home and using her money to support himself after her death. Judge Donegan expressed concern that Daniel might not oppose the other heirs because Melinda would get most of his share of the estate as child support. Judge Donegan said:

"How do I know that Daniel Schweihs is going to have adequate representation in that estate so that we know that we are dealing
with an arm’s length transaction!?]
***
*** I understand he might rollover and die ***. *** [T]hat’s going to defeat the interest of the children that they may have [in] any distributive share he has ***.”

Judge Donegan asked if the judge presiding over probate of Veronica’s estate, Judge Teschner, knew about the past-due child support. The executor’s attorney did not know. Judge Donegan indicated he would contact Judge Teschner himself.

Daniel’s attorney admitted Daniel had not paid all of the ordered support but he said support should be reduced because Daniel "has no income.” The attorney reported that Daniel had an "employment situation where he is receiving no income except based upon commission *** if he can put a deal together,” and he had not received any income from that position.

Melinda sought enforcement of the child support order. The court answered:

"I think if you want that *** the answer is [to] file a petition to hold him in criminal contempt of court and ask for a sentence; and if you do that, we will have a criminal hearing in this division as to whether or not he should be sentenced, not coercive, punitive[,] so that he is going to be put in jail for a specific amount of time.”

Daniel’s attorney questioned the applicability of criminal contempt. The court said:

"I am only concerned with Daniel Schweihs rolling over playing dead and having a substantial portion of the estate wiped out to the [children’s] detriment. ***
* * *
*** If he rolls over and plays dead and I find that out, he is going to jail.”

To Melinda the court said:

"File your petition to hold him in direct criminal contempt of this Court. I will put him in jail.”

On October 2, 1992, Judge Donegan sent a letter informing Judge Teschner that Daniel had a substantial child support arrearage and that Judge Donegan authorized Melinda to appear in the probate proceedings. He sent a copy of the letter to Melinda’s attorney, but not to Daniel’s attorney.

On November 23, 1992, Daniel moved for substitution of judges because of the ex parte communication of the letter copied to Melinda’s attorney, and because Judge Donegan started the criminal contempt proceeding, saying he would put Daniel in jail.

Judge Donegan heard the motion on December 14, 1992, and said he copied the letter only to Melinda because she was the only person before him who was not already a party to the probate proceeding. Daniel did not need a copy of Judge Donegan’s letter because he had "full knowledge [of] what was taking place out there.”

Judge Donegan also said his comments on contempt were his response to Melinda’s request for enforcement of the child support order, and he only explained the enforcement options she had available, distinguishing punitive criminal contempt from coercive civil contempt.

Prior to January 1, 1993, the statute governing substitution of judges for cause in civil cases permitted the judge accused of prejudice to hear and decide the motion. (Ill. Rev. Stat. 1991, ch. 110, pars. 2 — 1001(a)(2), (e).) This court owes "extreme deference” to the trial court’s determination on such motions (.People v. Mercado (1993), 244 Ill. App. 3d 1040, 1046, 614 N.E.2d 284), because the trial court "is in the best position to determine whether it has become prejudiced” (People v. Hall (1986), 114 Ill. 2d 376, 406, 499 N.E.2d 1335). We will not reverse the denial of a petition for change of judges under this standard unless the trial court abused its discretion. In re Marriage of Roach (1993), 245 Ill. App. 3d 742, 747, 615 N.E.2d 30.

In the full context of the September 8 hearing, Judge Donegan’s comments apparently meant that he would put Daniel in jail if Melinda proved criminal contempt by showing, for example, that Daniel "roll[ed] over and die[d]” in probate litigation, failing to protect his children’s interests in his mother’s estate. The comments are not sufficient to overcome the strong presumption that Judge Donegan correctly determined that he had not prejudged the case. (See Hartnett v. Stack (1993), 241 Ill. App. 3d 157, 171-72, 607 N.E.2d 703.) While Judge Donegan would have been better advised to send to Daniel’s attorney a copy of the letter to Judge Teschner, we cannot say that the letter overcomes the presumption that the judge is not prejudiced, even when we consider it in light of the judge’s comments in court. (See People v. Beasley (1982), 108 111. App.

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Cite This Page — Counsel Stack

Bluebook (online)
650 N.E.2d 569, 208 Ill. Dec. 875, 272 Ill. App. 3d 653, 1995 Ill. App. LEXIS 326, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-schweihs-illappct-1995.