In re Marriage of Padilla
- Reporters:
- ,
- Before:
- Gordon, McBride, Burke
¶ 1 The instant appeal arises from the trial court‘s order appointing a receiver over the estate of respondent in connection with a dissolution of marriage action. Respondent appeals this order, claiming that the trial court lacked jurisdiction or statutory authority to appoint a receiver and that the trial court abused its discretion in doing so. Respondent further claims that the court erred by appointing a receiver because the order appointing the receiver improperly enjoined respondent from presenting his earlier-filed petition for substitution of judge for cause. For the reasons that follow, we affirm.
¶ 2
¶ 3 The instant appeal represents the fourth time the parties have appeared before this court in connection with the dissolution of their marriage. See In re Marriage of Padilla, 2017 IL App (1st) 170215; In re Marriage of Padilla, 2018 IL App (1st) 173064-U (Padilla II); In re Marriage of Padilla, 2019 IL App (1st) 182267-U (Padilla III). Since the record on appeal is sparse, we fill in background details from our prior decisions and from official electronic dockets, of which we may take judicial notice. See TCF National Bank v. Richards, 2016 IL App (1st) 152083, ¶ 50.
¶ 4 On September 29, 2014, petitioner Martha Padilla filed for dissolution of marriage from respondent Robert Kowalski, pursuant to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (
¶ 5 Despite respondent‘s efforts, this dissolution case has remained in front of Judge William Boyd2 since the case was assigned to him on October 26, 2016, except for certain matters that Judge Boyd transferred to Judge Mark Lopez for hearing.3
¶ 6 On March 29, 2018, while the dissolution proceedings were ongoing, respondent sought bankruptcy protection in the federal district court for the Northern District of Illinois. In re Kowalski, No. 18-09130, 2018 WL 6841355 (Bankr. N.D. Ill. Nov. 30, 2018). According to respondent‘s appellate brief, on October 2, 2019, petitioner entered into a “Family Support Agreement” with the trustee of respondent‘s bankruptcy estate, through which petitioner “received substantial income producing properties” in “exchange and compromise of her claims for marital assets.” This purported agreement is not included in the record on appeal.
¶ 7 On December 16, 2019, in this dissolution action, the trial court entered a judgment for dissolution of marriage. Although the record suggests that the judgment incorporated a settlement agreement between the parties regarding the allocation of their marital estate, neither the order of judgment itself nor any settlement agreement is included in the record on appeal.
¶ 8 On July 8, 2020, respondent filed a “Petition for Substitution of Judge Mark Lopez for Cause” pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (
¶ 9 A day later, on July 9, 2020, petitioner filed an “Emergency Motion for the Appointment of a Receiver Over the Estate of [Respondent].” In the emergency motion, petitioner argued that respondent had failed to comply with the December 16, 2019, judgment for dissolution order and that respondent‘s “history of fraudulently concealing assets” justified the appointment of a receiver over respondent‘s estate. In support of her position that a receiver was needed, petitioner maintained that, pursuant to the judgment for dissolution order, respondent had outstanding obligations to petitioner totaling $77,598.50 and that respondent had failed to maintain a life insurance policy in excess of $6.5 million, as required by the order. The emergency motion also recited allegations from a February 6, 2020, federal criminal indictment against respondent and respondent‘s sister, Jan Kowalski, which, according to
¶ 10 On July 10, 2020, the parties came before the court via Zoom for a “post card status” on petitioner‘s emergency motion. Respondent concedes that all parties were present at the Zoom hearing but claims that the trial court did not permit respondent to unmute himself or otherwise be heard. Respondent further claims that the trial court failed to entertain his petition for substitution of judge for cause, even though it was filed prior to petitioner‘s emergency motion for appointment of a receiver. There is no report of proceedings or bystander‘s report of this hearing contained in the record on appeal. The written order entered by the trial court on July 10, 2020, provides:
“This matter coming before the Court for a post card status and on [Petitioner‘s] Emergency Motion for the Appointment of a Receiver Over the Estate of [Respondent], the parties being present through counsel, notice being given, and the Court being advised,
IT IS HEREBY ORDERED:
1. [Petitioner‘s] Emergency Motion for the Appointment of a Receiver Over the Estate of [Respondent] is found to be an emergency.
2. [Petitioner‘s] Emergency Motion for the Appointment of a Receiver Over the Estate of [Respondent] is granted.
3. Neal H. Levin (Receiver) of Freeborn & Peters LLP is appointed the receiver of any and all of Robert‘s income and assets pursuant to separate order[.]***”
¶ 11
¶ 12 On July 13, 2020, respondent filed a notice of interlocutory appeal.4 Petitioner did not file an appellate brief, so we take the appeal on respondent‘s brief and the record alone. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
ANALYSIS
¶ 13
¶ 14 On appeal, respondent challenges the trial court‘s entry of the emergency order for appointment of a receiver over respondent‘s estate and the separate orders granting certain powers to that receiver. Respondent also claims that the order appointing a receiver enjoined respondent from presenting his petition for substitution of Judge Lopez for cause.
I. Appellate Jurisdiction
¶ 15
¶ 16 As an initial matter, we must discuss whether we have jurisdiction to review respondent‘s claims. As an appellate court, we are required to consider our jurisdiction, even if the parties
¶ 17 In the case at bar, respondent filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 307(a)(2) and Rule 307(a)(3) (eff. Nov. 1, 2017), which provide for an appeal of an interlocutory order “appointing or refusing to appoint a receiver or sequestrator” and “giving or refusing to give other or further powers or property to a receiver or sequestrator already appointed,” respectively. Because one of the trial court‘s July 10, 2020, orders appointed a receiver over respondent‘s estate and the other gave certain powers to that receiver, we have appellate jurisdiction to consider the two orders’ propriety.
¶ 18 We note, however, that respondent‘s brief also challenges the trial court‘s entry of a July 21, 2020, amended receiver order and turnover order. Ordinarily these orders would be reviewable under Illinois Supreme Court Rule 307(a)(3) (eff. Nov. 1, 2017) as orders giving or refusing further powers of a receiver already appointed. However, our supreme court has made clear that “[a] notice of appeal confers jurisdiction on a court of review to consider only the judgments or parts of judgments specified in the notice of appeal.” General Motors Corp. v. Pappas, 242 Ill. 2d 163, 176 (2011). As the July 21, 2020, amended receiver order and turnover order were entered after respondent filed his July 13, 2020, notice of appeal, the notice
¶ 19 Respondent also asks that we construe the July 10, 2020, order appointing a receiver as an order enjoining a hearing on his petition for substitution of judge, such that we may review the petition pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), which provides for appeal of an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” We are not persuaded by respondent‘s characterization of the trial court‘s July 10, 2020, order. Indeed, we considered and rejected respondent‘s similar
“[R]espondent‘s characterization of the trial court‘s order is not accurate. The trial court did not enter an order preventing respondent from presenting his petition for substitution of judge. *** As the petition had not been set for hearing on that day and opposing counsel had not received notice that the petition had been filed, the trial court properly noted that it would not be considering the petition at that time. See Ill. S. Ct. R. 104(b) (eff. Jan. 1, 2018) (requiring proof of service showing that all parties have been served with a copy of a motion); Cook County Cir. Ct. R. 2.3 (eff. July 1, 1976) (the movant bears the burden of calling a motion for hearing). The trial court did not prevent respondent from presenting his petition. ***
*** [T]he record contains no indication that respondent took the next steps in having his petition considered, namely, providing opposing counsel with notice of the petition and setting it for hearing. Instead, a week later, respondent filed a notice of appeal. Respondent‘s failure to properly follow the steps to have his petition considered in no way transforms the trial court‘s *** order into an injunction. [Citation].” Padilla III, 2019 IL App (1st) 182267-U, ¶¶ 28-29.
Likewise, in the case at bar, there is no evidence to suggest that the petition for substitution of judge was properly before the trial court on July 10, 2020, or that the trial court took any action to prevent it from being heard thereafter. In addition, although respondent‘s appellate brief characterizes the petition for substitution of judge as a “verified” petition, the record on appeal does not include any verification or affidavit as required by section 2-1001(a)(3)(iii) of the Illinois Code of Civil Procedure (
¶ 20 In sum, although we have jurisdiction to hear respondent‘s challenge to the July 10, 2020, order appointing a receiver over respondent‘s estate, we lack jurisdiction to consider either respondent‘s challenge to the July 21, 2020, amended receiver order or respondent‘s challenge concerning the alleged lack of a hearing on his petition for substitution of judge.
II. Appointment of a Receiver
¶ 21
¶ 23 First, respondent argues that the trial court lacked subject matter jurisdiction to preside over the dissolution of marriage case and was therefore not permitted to appoint a receiver. Subject matter jurisdiction refers to a court‘s power to hear and decide cases of a certain class. Ferris, Thompson & Zweig, Ltd. v. Esposito, 2015 IL 117443, ¶ 15. In general, subject matter jurisdiction is not waivable and may be raised at any time, including on appeal. In re Marriage of Casarotto, 316 Ill. App. 3d 567, 573 (2000). If subject matter jurisdiction is lacking, any subsequent judgment of the court is rendered void. In re Marriage of Mitchell, 181 Ill. 2d 169, 174 (1998). Whether a circuit court has subject matter jurisdiction presents a question of law, which we review de novo. McCormick v. Robertson, 2015 IL 118230, ¶ 18. As noted, de novo consideration means we perform the same analysis that a trial judge would perform. Khan, 408 Ill. App. 3d at 578.
¶ 24 In the case at bar, respondent maintains that because “the case was extensively transferred back and forth by non-random, non-electronic case steering means directly from [Judge Lopez‘s] Individual calendar 89 [to] *** Judge Boyd[,] the preliminary judge of cohesive judicial team C,” both Judge Lopez and Judge Boyd were divested of subject matter jurisdiction. We are not persuaded by respondent‘s argument. Subject matter jurisdiction is not a requirement concerning specific judicial assignments within a given court. Instead, our supreme court has held that “[s]o long as a matter brought before the circuit court is justiciable and does not fall within the original and exclusive jurisdiction of our [supreme] court, the circuit court has subject matter jurisdiction to consider it.” McCormick, 2015 IL 118230, ¶ 20. Moreover, it is well-settled that under the Illinois constitution, marriage dissolution
¶ 25 Respondent next argues that the trial court was not permitted to appoint a receiver because the Marriage Act does not provide for the appointment of a receiver in post judgment dissolution proceedings. We do not find this argument persuasive. While certain statutes provide for the appointment of a receiver, our supreme court has held that the power to appoint a receiver is part of the court‘s inherent equity jurisdiction and is “not dependent upon any statute.” Witters v. Hicks, 335 Ill. App. 3d 435, 446 (2002). Moreover, respondent concedes that the Marriage Act grants trial courts broad equitable powers, including “mak[ing] provision for the preservation and conservation of marital assets during the litigation.”
¶ 26 Lastly, respondent contends that even if the trial court had the authority to appoint a receiver, the trial court abused its discretion in doing so under the circumstances of this case.
¶ 27 We review a trial court‘s decision to appoint a receiver under the abuse of discretion standard. City of Chicago v. Jewellery Tower, LLC, 2021 IL App (1st) 201352, ¶ 45. A trial court is considered to have abused its discretion only where no reasonable person would take the view it adopted. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005). Further, a trial court abuses its discretion when it “acts arbitrarily and fails to employ conscientious judgment and ignores recognized principles of law.” Castro v. Brown‘s Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 554 (2000).
¶ 28 It is the appellant‘s burden to present a record that is sufficiently complete to permit evaluation of appellant‘s claim of error. Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156, (2005); Webster v. Hartman, 195 Ill. 2d 426, 432 (2001); Foutch v. O‘Bryant, 99 Ill. 2d 389, 391-92 (1984). “An issue relating to a circuit court‘s factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding.” Corral, 217 Ill. 2d at 156; Webster, 195 Ill. 2d at 432. Without an adequate record preserving the claimed error, the court of review must presume that the circuit court‘s order had a sufficient
¶ 29 Here, respondent has failed to provide the court with a sufficiently complete record to evaluate the trial court‘s exercise of its discretion. Specifically, the record is devoid of a transcript or report of the July 10, 2020, proceedings, a bystander‘s report, or an agreed statement of facts. Respondent also failed to include the exhibits to petitioner‘s emergency motion for appointment of a receiver in the record on appeal. Thus, we do not know what evidence was presented, what legal arguments were made before the court, or what factual or legal findings the trial court relied on. We know only that following “a post card status” with “the parties being present through counsel, notice being given, and the Court being advised,” the trial court found the emergency motion to be an emergency and appointed a receiver as requested. Under these circumstances, “we will presume that the trial court heard adequate evidence to support its decision and that its order granting [petitioner‘s] motion *** was in conformity with the law.” Webster, 195 Ill. 2d at 432-34. Accordingly, we affirm the trial court‘s July 10, 2020, orders appointing a receiver and giving certain powers to that receiver.
CONCLUSION
¶ 30
¶ 31 For the reasons set forth above, we cannot consider respondent‘s appeal of the trial court‘s July 21, 2020, orders or his challenges concerning his petition for substitution of judge for cause, nor can we find error in the trial court‘s appointment of a receiver over respondent‘s estate.
¶ 32 Affirmed.