In re Pavlovich
| Decision Date | 16 April 2019 |
| Docket Number | Nos. 1-17-2859 & 1-18-0185,s. 1-17-2859 & 1-18-0185 |
| Citation | 2019 IL App (1st) 172859,433 Ill.Dec. 653,133 N.E.3d 1 |
| Parties | IN RE MARRIAGE OF Slobodan PAVLOVICH, Petitioner-Appellee, and Aneta Pavlovich, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
¶ 1 In these consolidated appeals, respondent, Aneta Pavlovich, challenges the trial court's grant of her former attorney's motion to withdraw, denial of her motion for an evaluation under section 604.10(b) of the Illinois Marriage and Dissolution of Marriage Act ( 750 ILCS 5/604.10(b) (West 2016) ), and finding that she was in indirect civil contempt of court. For the reasons that follow, we affirm the trial court's grant of counsel's motion to withdraw and its denial of respondent's motion for a section 604.10(b) evaluation, but reverse the trial court's finding of indirect civil contempt.
¶ 3 The parties, both attorneys licensed to practice in Illinois, were married in 2002 and had three children together: S.P., born in 2006, and M.P. and K.P., both born in 2008. In 2014, petitioner filed a petition for dissolution of the parties' marriage, citing as grounds irreconcilable differences.
¶ 4 In November 2016, respondent filed a motion requesting that the trial court appoint an evaluator under section 604.10(b) to evaluate the children's best interests in allocation of parenting time and parental responsibilities. In that motion, respondent contended that on multiple occasions during the litigation of the dissolution proceedings, petitioner had falsely accused her of abusing, neglecting, and mistreating the children and had forced the children to make statements in support of his false allegations. She also alleged that petitioner would threaten her with false reports of abuse in attempts to coerce her into agreeing to his demands in the dissolution litigation. As part of her motion, respondent requested that a mental health evaluation be conducted of both her and petitioner, as well as of all the children. The trial court denied this motion. The trial court's written order did not contain the reasons for its denial, and respondent did not include a transcript of the hearing on the motion in the record on appeal.
¶ 5 In the written order denying respondent's motion for a section 604.10(b) evaluation, the trial court continued the trial on petitioner's dissolution petition to June 12 and 13, 2017. On June 8, 2017, respondent's then-counsel, Hoffenberg & Block, LLC (Hoffenberg), filed a motion to withdraw, citing a breakdown in the attorney-client relationship that made it impossible to continue to represent respondent. The motion also noted that respondent, a licensed attorney, had filed a pro se appearance in the case on February 3, 2015, and had never withdrawn that appearance. The certificate of service attached to the motion to withdraw indicated that the motion was served on respondent by e-mail before 5 p.m. on June 7, 2017. It should be noted that Hoffenberg was the fourth firm that had represented respondent since the institution of the dissolution proceedings (not including respondent's appearance). On the same day that the motion to withdraw was filed, the trial court granted it. The written order granting the motion noted that respondent was present at the hearing. Again, respondent did not include a transcript of this hearing in the record on appeal.
¶ 6 Four days later, on June 12, 2017, respondent's current counsel, James Macchitelli, filed an appearance on respondent's behalf. The same day, the parties proceeded to trial on petitioner's dissolution petition. In addition, an allocation judgment agreed to by the parties was entered by the trial court. Respondent again failed to include a transcript of these proceedings in the record on appeal.
¶ 7 On July 25, 2017, the trial court entered a judgment of dissolution, which it later amended on September 7, 2017. In both the initial judgment and the amended judgment, respondent was awarded a condo owned by the parties. Among other conditions, respondent was required to pay all expenses associated with the condo and to refinance the condo in her name only.
Respondent was also prohibited from leasing the condo until she had obtained refinancing. Respondent's postjudgment motions directed against the initial judgment and the amended judgment were all denied.
¶ 8 Shortly after the entry of the amended judgment, petitioner filed a two-count petition for rule to show cause against respondent. The first count alleged that respondent had failed to comply with certain provisions of the allocation judgment relating to the children's attendance at soccer. The second count alleged that respondent had failed to comply with the judgment of dissolution by failing to pay certain expenses associated with the condo awarded to respondent and by leasing the condo prior to obtaining refinancing. Following a hearing on the petition, the trial court found respondent in indirect civil contempt for leasing the condo in August and September 2017, before she had obtained refinancing. Accordingly, the trial court ordered petitioner to pay $ 5300.00—the amount respondent collected in rent—to the clerk of the circuit court to purge her contempt.
¶ 9 Respondent filed a motion to reconsider the contempt order, arguing that although the trial court stated that it found her in indirect civil contempt, it actually found her to be in indirect criminal contempt. As a result, respondent argued, she was entitled to certain procedural protections, which she was not afforded. After a hearing on her motion to reconsider, the trial court denied respondent's motion to reconsider with respect to the finding of indirect civil contempt but modified the purge amount such that respondent was required to pay $ 2650 to petitioner, representing one-half of the rent respondent collected from leasing the condo.1 The trial court also awarded petitioner $ 3000 in attorney fees incurred in bringing the petition for rule to show cause.
¶ 10 In appeal No. 1-17-2859, respondent appeals from the initial judgment of dissolution and amended judgment dissolution, while respondent's appeal in appeal No. 1-18-0185 relates to the trial court's finding of indirect civil contempt.
¶ 12 In appeal No. 1-17-2859, respondent argues that the trial court violated Illinois Supreme Court Rule 13 (eff. July 1, 2013) in allowing Hoffenberg to withdraw as her counsel without also continuing the trial and allowing respondent 21 days to obtain new counsel. She also argues in that appeal that the trial court erred in denying her motion for a section 604.10(b) evaluation. In appeal No. 1-19-0185, respondent argues that although the trial court stated that it found her in indirect civil contempt for leasing the condo before obtaining refinancing, it actually held her in indirect criminal contempt, and she was not afforded the procedural protections afforded to litigants subject to criminal contempt. We address each of these in turn.
¶ 14 Before addressing respondent's contentions on appeal, we pause to note that petitioner, in his response brief, requested that we strike portions of respondent's brief and appendices. Petitioner bases this request on the fact that respondent's brief exceeds 50 pages in violation of Illinois Supreme Court Rule 341(b)(1) ( ) and contained allegations that were not supported by the record on appeal. Petitioner also points out that some of the documents included in respondent's appendix are not in the record on appeal and the record does not contain any report of proceedings. Petitioner is correct in pointing out these deficiencies in respondent's brief, and we advise appellate counsel for respondent to review the Illinois Supreme Court Rules governing appellate briefs and procedures and make a greater effort to comply with them in future appeals. We do not believe, however, that it is necessary to strike respondent's brief or appendix. To the extent that documents or allegations relied on by respondent are not contained in or supported by the record on appeal, we will disregard them in addressing respondent's contentions on appeal.
¶ 16 Respondent first argues that the trial court violated Rule 13 when it allowed Hoffenberg to withdraw as her counsel because she did not receive reasonable notice of the motion and because the motion was granted within 21 days of trial and without a continuance of trial. In addition, respondent contends that the trial court should have denied the motion to withdraw because it resulted in an inequitable and unconscionable judgment of dissolution. We conclude that respondent has waived these contentions.
¶ 17 At the time Hoffenberg filed its motion to withdraw, Rule 13(c) provided in relevant part:
Courts have interpreted these...
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