Estate of Mcgrath v. McGrath (In re Re)

• Decision Date: 25 August 2015
• Docket Number: NO. 4-14-0620,4-14-0620
• Citation: 2015 IL App (4th) 140620 -U
• Parties: In re: the Estate of NANCY E. McGRATH, Deceased, KEVIN McGRATH, as Executor of the Estate and as Successor Judgment Creditor, Petitioner-Appellee, v. JOHN ROLAND McGRATH, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

2015 IL App (4th) 140620-U

In re: the Estate of NANCY E. McGRATH, Deceased, KEVIN McGRATH, as Executor of the Estate and asSuccessor Judgment Creditor, Petitioner-Appellee, v. JOHN ROLAND McGRATH, Respondent-Appellant.

NO. 4-14-0620

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

August 25, 2015

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Sangamon County

No. 96D550

Honorable Steven H. Nardulli, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Justices Knecht and Holder White concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, concluding that the trial court properly (1) denied the respondent's motion for substitution of judge, (2) revived a November 2001 judgment against respondent, and (3) awarded attorney fees to the petitioner.

¶ 2 In August 1998, the trial court entered a judgment (1) dissolving the marriage between John Roland McGrath and Nancy E. McGrath, and (2) dividing the marital property in accordance with a marital settlement agreement. In the years that followed, John and Nancy failed to fully abide by the financial terms of the court's August 1998 dissolution judgment. In November 2001, following extensive postdissolution litigation, the court ordered John to pay Nancy $70,010.

¶ 3 Nancy died in November 2011. In February 2013, Nancy's estate filed a petition to revive the November 2001 judgment pursuant to section 2-1602 of the Code of Civil Procedure (735 ILCS 5/2-1602 (West 2012)), alleging that John had paid nothing toward the judgment since December 2001. In March 2014, following a hearing, the trial court revived the judgment and ordered John to pay the estate the remaining balance, which the court determined was $12,850.

¶ 4 John appeals, arguing that the trial court erred by (1) denying his December 2013 motion for substitution of judge as of right (735 ILCS 5/2-1001(a)(2) (West 2012)); (2) granting the estate's petition to revive the November 2001 judgment; and (3) awarding attorney fees to the estate. We disagree and affirm.

¶ 5 I. BACKGROUND

¶ 6 The following facts were gleaned from the parties' pleadings, evidence presented at the various hearings, and the trial court's orders.

¶ 7 A. Dissolution Proceedings

¶ 8 John and Nancy were married in June 1967. In June and July 1996, they cross-petitioned to dissolve their marriage. At a November 1997 hearing, the trial court approved John and Nancy's marital settlement agreement and continued the matter for the parties to submit a written order. The marital settlement agreement, incorporated into the court's August 1998 dissolution judgment, divided the couple's farm, as follows:

"9. With respect to [the farm real estate], all of same shall be deeded into a Trust at the Williamsville State Bank and not subject to sale and that [John] shall have a right to live in the house and utilize the buildings as he desires and [Nancy] shall have no access to the house and buildings[.]

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10. That in said Trust [Nancy] will own 154.48 acres and [John] will own 90.57 acres. [Nancy] will have a life estate in 154.48 acres and [John] will have a life estate in 90.57 acres, which includes the house with the buildings and 5 acres."

The marital settlement agreement also set forth an arrangement for rental of the farmland, as follows:

"12. [John] shall be required for the 1998 farming year to cash rent the farmland described in this Order applicable to [Nancy], being her 154.48 acres undivided, at the rate of $225 per acre[.]

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14. Providing [Nancy] is paid timely[,] *** [John] will be able to farm the ground from year to year.

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18. That from time to time if the cash rentals for comparable ground in the area rise, then in order for [John] to continue farming the ground he shall be required to meet those cash rentals being paid[,] and if from time to time the cash rentals for comparable ground in the area fall, [John] has a right to pay the lesser amount.

The cash rental price for purposes of determining an increase shall be determined by obtaining bids prior to January 1 of the farming year. Said bids shall be on the total tillable acres of the land in the Trust. Either party has until December 15 preced- ing the January 1st to give notice to the other party in writing that they want to solicit for bids and the bids could go up or down. In the event that the bids are for an amount in excess of $225 per acre, then [John] will have an opportunity to match those bids for a period of 15 days[,] and if he does not sign and tender to [Nancy,] through her attorney, a document acknowledging that the rents to be paid for that crop year are equal to those bids, all rights to farm the ground shall terminate and the highest bid shall farm the land. That when the land is placed up for bid, it includes all the tillable ground that is in the Trust. That the same terms and conditions as described above shall apply for [John] in the event that he believes that the rental rates go down."

Last, the marital settlement agreement set forth the parties' responsibilities for payment of real-estate taxes and permanent improvements to the land, as follows:

"29. That with respect to the real estate taxes thereafter, [Nancy] shall pay her proportionate share of the taxes for the tillable ground based upon her acres. [John] shall pay real estate taxes for all improvements and his proportionate part of the tillable acres.

30. In the event that permanent improvements such as tile have to be made to the land, then each party shall be obligated to pay for the tile work that is hired out or given to a third party in the same proportion as the real estate taxes."

¶ 9 In August 1998, before the trial court formally entered the judgment of dissolution incorporating the marital settlement agreement, John filed (1) a motion to set the cause for trial and (2) a petition for substitution of judge for cause. John alleged, among other things, that (1) the settlement agreement was unconscionable because the farm property was nonmarital property; and (2) the presiding judge, Thomas Appleton, had pressured John at the November 1997 hearing to agree to the settlement agreement. Later in August 1998, the court entered a written dissolution judgment, which incorporated the settlement agreement that the court had approved at the November 1997 hearing.

¶ 10 In April 1999, a different judge, Steven H. Nardulli, conducted a hearing on John's petition for substitution of Judge Appleton for cause. According to John's testimony at that hearing, Judge Appleton told John that if he did not go along with the proposed settlement agreement, Judge Appleton would conduct a trial and divide the parties' property evenly, regardless of the evidence the parties presented. In May 1999, Judge Nardulli entered an order denying John's petition for substitution of Judge Appleton for cause. John later appealed rulings on a motion to vacate the dissolution judgment and order on the sale of grain, which this court affirmed. In re Marriage of McGrath, No. 4-99-0759 (May 22, 2000) (unpublished order under Supreme Court Rule 23).

¶ 11 In the years that followed, the parties failed to abide by the terms of the marital settlement agreement, which had been incorporated into the dissolution judgment. Among other things, (1) John and Nancy failed to place the farmland into a trust at the bank and (2) John did not pay any rent to Nancy for his farming of the land. In November 2001, following extensive postdissolution proceedings, the trial court (Judge Appleton, presiding) entered an order intended to rectify the financial disarray that resulted from John's and Nancy's noncompliance with the agreement. Specifically, the court found that John owed Nancy $70,010 and ordered him to pay her that amount. However, following the November 2001 order, John and Nancy continued to operate their finances in disregard for the marital settlement agreement until Nancy's death in November 2011.

¶ 12 B. Proceedings on the Petition To Revive Judgment

¶ 13 In February 2013, Nancy's estate filed a petition to revive the November 2001 judgment pursuant to section 2-1602 of the Code. In its petition, the estate conceded that John was entitled to credit against the original $70,010 judgment for (1) a $41,327 payment he made in December 2001 pursuant to court order and (2) $15,783 in real-estate taxes he paid toward Nancy's share of the farmland between 2002 and 2007. At the time the estate filed its petition, Judge Appleton was no longer serving as a trial judge in Sangamon County, and the estate's petition was docketed before Judge Nardulli.

¶ 14 In September 2013, the estate filed a "motion for entry of judgment of revival instanter" (what we will refer to as a motion for judgment on the pleadings), which contended that because John failed to come forward with any defense to the estate's petition to revive the judgment, the trial court should revive the judgment without holding a hearing.

¶ 15 Four days later, John filed an affirmative defense to the estate's petition to revive, claiming that the sum of the credits to which he was entitled satisfied the judgment.

¶ 16 In November 2013, the trial court held a final pretrial conference. Although the record contains no transcript of that pretrial conference, and the corresponding docket entry does not include an explicit ruling on the estate's motion for judgment on the pleadings, the docket entry does show that the court set aside a half day for a hearing "on all pending issues" for December 18, 2013.

¶ 17 On December 9, 2013, John filed (1) an "emergency" motion for substitution of judge as of right pursuant to section 2-1001(a)(2) of the Code and (2) a notice of hearing on that motion for December 11, 2013. Although neither the trial court's docket nor the record so indicate, the parties both agree that the court cancelled the December 11, 2013...