In re Marriage of Breslow

• Decision Date: 15 June 1999
• Docket Number: No. 1-97-0706, No. 1-97-0707.
• Citation: 713 N.E.2d 642,306 Ill. App.3d 41,239 Ill.Dec. 111
• Court: United States Appellate Court of Illinois
• Parties: In re the MARRIAGE OF Jeffrey BRESLOW, Petitioner-Appellee, and Marlene Breslow, Respondent-Appellant.

713 N.E.2d 642

306 Ill. App.3d 41

239 Ill.Dec. 111

In re the MARRIAGE OF Jeffrey BRESLOW, Petitioner-Appellee, and

Marlene Breslow, Respondent-Appellant.

Nos. 1-97-0706, 1-97-0707.

Appellate Court of Illinois, First District, Second Division.

June 15, 1999.

Grund & Starkopf, P.C., David I. Grund, David C. Adams, Chicago, for Appellant.

Rudnick & Wolfe, Theodore A. Shapero, Mark A. Rabinowitz, Paul B. McCarthy, Chicago, for Appellee. Justice GORDON delivered the opinion of the court:

Marlene Breslow appeals from a final order of dissolution of marriage entered by the Circuit Court of Cook County and from the court's subsequent nunc pro tunc amendment of that order. We find we are without jurisdiction to hear the appeal, and accordingly dismiss it.

FACTS

Jeffrey and Marlene Breslow married in February 1965. Jeffrey filed a petition for dissolution of marriage in the Circuit Court of Cook County in January 1995, and amended his petition in March 1995. In part relevant to our disposition of this appeal, Jeffrey requested that he "be awarded and assigned his non-marital property and a just proportion of all marital property." Marlene answered the amended petition in April 1996, requesting in pertinent part that she "be awarded an equitable portion of the marital property." Among the marital property Marlene listed in her answer was "[a] business known as Breslow, Morrison and Terzian, Inc., of which Jeffrey's pro rata share of the fair market value of same is more than $6,500,000."

After a lengthy trial, the circuit court entered a written judgment of dissolution of marriage on August 6, 1996. In addition to dissolving the parties' marriage, this order resolved all issues pertaining to the dissolution, including maintenance, division of property, and attorney's fees.¹ In its order the court found that the following assets were part of the marital estate:

"MARITAL PROPERTY/ASSETS VALUE BRESLOW, MORRISON, TERZIAN & ASSOCIATES (2,400,000) Brigg's Stock 1,895,500 897 Dryden Lane Residence, Highland Park 525,000 540 Lake Shore Drive Residence, Chicago: 350,000 (Including art, furniture and furnishings) 181 East Lake Shore Drive Condominium, Chicago 228,000 (Contract interest) JEFFREY's Cash 1,105,680 MARLENE's Cash 140,000 Life Insurance Policies 100,000 JEFFREY's 401(k) Retirement Plan 46,100 Park City, Utah Condominium (1/3 Interest) 15,000 MARLENE's Investment Account 15,000 MARITAL PROPERTY AND STIPULATIONS OF THE PARTIES Krugerrands 1995 BMW 1993 Jeep Artwork identified in Petitioner's Exhibit #27 Remaining art, furniture and furnishings at 897 Dryden Lane, Highland Park Remaining art, furniture and furnishings at 540 Lake Shore Drive Chicago MARVIN GLASS AND ASSOCIATES LIQUIDATING TRUST" In its order the court divided the marital assets as follows "DISTRIBUTION OF THE MARITAL ASSETS "DISTRIBUTION OF THE MARITAL ASSETS DISTRIBUTION OF MARITAL ASSETS TO THE PETITIONER, JEFFREY:

Fifty Percent (50%) of BRESLOW, MORRISON, TERZIAN &amp ASSOC. (1,200,000) 540 Lake Shore Drive Residence, Chicago 350,000 181 East Lake Shore Drive Condominium (Contract Interest) 228,000 JEFFREY'S Cash 1,105,680 Park City, Utah Condominium (1/3 Interest) 15,000 fifty Percent (50%) of the Krugerrands 1993 Jeep Artwork in Petitioner's Exhibit # 27 "Standing Girl with Hat" Fifty Percent (50%) of the Remaining Artwork Documented In Petitioner's Exhibit # 27 All remaining art, furniture and furnishings at 540 Lake Shore Drive * Fifty Percent (50%) of MARVIN GLASS AND ASSOCIATES LIQUIDATING TRUST (* See Item 4, under MAINTENANCE) DISTRIBUTION OF THE MARITAL ASSETS TO THE RESPONDENT MARLENE: Fifty Percent (50%) of BRESLOW, MORRISON, TERZIAN & ASSOC. (1,200,000) Brigg's Stock 1,895,500 897 Dryden Lane Residence, Highland Park 525,000 MARLENE's Cash 140,000 Life Insurance Policies (or cash equivalent) 100,000 JEFFREY'S 40100 Retirement Plan 46,100 MARLENE's Investment 15,000 Fifty Percent (50%) of the Krugerrands 1995 BMW Artwork in Petitioner's Exhibit # 27, "Precious Moments" Fifty Percent (50%) of the Remaining Artwork Documented In Petitioner's Exhibit # 27 All remaining art, furniture and furnishings at 897 Dryden Lane * Fifty Percent (50%) of MARVIN GLASS AND ASSOCIATES LIQUIDATING TRUST (* See Item 4, under MAINTENANCE)

FURTHERMORE, after the division of the above articulated MARITAL ASSETS to MARLENE, pursuant to this JUDGMENT, MARLENE is due and owing the sum of Six Hundred Eighty-eight Thousand Five Hundred Forty ($688,540) Dollars, to be paid by JEFFREY to MARLENE in monthly installments of Eleven Thousand Four Hundred Seventy-Five ($11,475) Dollars per month with Nine (9%) Percent statutory interest for sixty (60) months, (five [5] years), from the entry of this JUDGMENT, such payments to commence, nunc pro tunc, from August 1, 1996. All payments are due and payable on the first of each month.

* * *

MAINTENANCE

* * *

4. Upon completion of maintenance payments, but no later than sixty (60) months (five [5] years) from August 1, 1996, JEFFREY shall immediately assign his Fifty (50%) Percent interest in MARVIN GLASS AND ASSOCIATES LIQUIDATING TRUST to MARLENE."

The court also found Jeffrey owed Marlene $61,669 for marital funds he had dissipated.

On August 15, Marlene filed a motion for rule to show cause why Jeffrey should not be held in contempt for his failure to comply with certain of the provisions of the August 6 order of the circuit court. Specifically, she requested in part that Jeffrey be held in contempt for his failure to transfer to her fifty percent of his shares of Breslow, Morrison, Terzian & Associates ("BMT"), as she alleged the August 6 order required. She also alleged Jeffrey had failed to comply with numerous other provisions of the August 6 order. On August 30, without having yet responded to Marlene's motion for rule to show cause, Jeffrey filed a motion to clarify or modify the August 6 order, alleging that certain of the circuit court's findings of fact and conclusions of law were erroneous. The motion did not seek to modify or clarify any portion of the August 6 order regarding BMT. On September 9, the circuit court filed an order amending the August 6 order in certain respects. The September 9 order did not amend any portion of the August 6 order dealing with the BMT stock, and it denied a portion of Jeffrey's motion alleging that the requirement that he assign his interest in the Marvin Glass liquidating trust to Marlene after five years was erroneous because the parties had stipulated that they would equally divide the interest in Marvin Glass. At a hearing on the motion the court stated with respect to this latter point "I believe I have the authority to do that."

Approximately three months later, on December 2, Jeffrey filed a "Motion to Strike and Response [(to Marlene's August 15 motion for rule to show cause)]." In this motion Jeffrey alleged for the first time that the portion of Marlene's motion for rule to show cause which was based on his purported failure to transfer her the shares of BMT was groundless, because

"[n]either the Judgment nor the reconsidered Order award any `shares' of the business, BMT, to Marlene. Neither order, therefore, directs the `transfer' of any `shares' by Jeffrey to Marlene. Marlene never argued for or sought, in closing argument, the award of shares. Marlene was awarded, as and for her interest in the corporation, other property of the estate, including, without limitation, a cash to balance distribution of $688,540, payable over five years."

Jeffrey noted that if he had been awarded the entire $2,400,000, the $688,540 payment he was ordered to make to Marlene would give each party exactly the same dollar amount of marital assets. He argued, therefore, that the court had awarded all of the BMT stock to him and "satisfied Marlene's interest in the business by the award of other property"—specifically, the $688,540 cash payment. Marlene responded that (1) the language of the order was contrary to Jeffrey's interpretation, (2) it was too late to modify the order, as the "Motion to Strike and Response" had been filed more than 30 days after the final order was entered, and (3) Jeffrey should be estopped from arguing that he was not required to transfer the shares to her, as she had relied on Jeffrey's failure to contest that provision of the order in her decision not to appeal the circuit court's valuation of BMT.

In the record before us the trial court never entered a ruling on Marlene's motion for a rule to show cause. However, on January 15, 1997, the circuit court entered an order purporting to modify the August 6 order nunc pro tunc. That order, which reveals on its face that it was prepared by counsel for Jeffrey, reads in full as follows:

"THIS CAUSE coming on before Judge Daniel Sullivan, Calendar 13, pursuant to order of December 19, 1996, for the expressly limited purpose of interpretation of certain language in the Judgment for Dissolution of Marriage, entered by him in this cause August 6, 1996; the Court having entered a subsequent order September 9, 1996 on Petitioner's Motion pursuant to 735 ILCS 5/2-1203; the parties being present by counsel; the court having jurisdiction over the parties and the subject matter; the Court being duly and fully advised in the premises; and the Court, having consulted the record of this cause, including without limitation its notes, memoranda and other records, does hereby find and order:

The Court HEREBY FINDS that there is no ambiguity in the Judgment for Dissolution entered in this cause August 6, 1996 and in the September 9, 1996 order; and that, specifically, Respondent MARLENE BRESLOW was not awarded shares or an interest of any kind in Breslow, Morrison, Terzian and Associates, but offsetting property in the nature of other assets, including a cash payout, over five years.

The Court further finds that this finding is expressly a nunc pro tunc amendment of the record and so orders:

IT IS HEREBY

...