Marriage of Vucic, In re

Citation159 Ill.Dec. 737,576 N.E.2d 406,216 Ill.App.3d 692
Decision Date15 July 1991
Docket NumberNo. 2-90-1026,2-90-1026
Parties, 159 Ill.Dec. 737 In re MARRIAGE OF Joanna VUCIC, Petitioner-Appellee, and Avdija (Don) Vucic, Respondent-Appellant (Teresa Cwieka, Appellant).
CourtUnited States Appellate Court of Illinois

Charles Locker, Chicago, for Avdija Vucic, Teresa cwieka.

Mirabella & Kincaid, William J. Scott, Jr., Wheaton, for Joan Vucic.

Justice INGLIS delivered the opinion of the court:

Respondents, Avdija (Don) Vucic and Teresa Cwieka, appeal from a final judgment of the circuit court of Du Page County which dissolved the marriage of Don Vucic and Joanna Vucic, petitioner. The judgment distributed the marital property and established an $80,000 trust fund from which child support payments of $500 per month would be made for Mujo Vucic, Don and Joanna's only child. Five issues are raised on appeal: (1) whether respondent's appeal was timely; (2) whether Donald Daniel Cwieka (age five), child of Don Vucic and Teresa Cwieka, was a necessary and indispensable party to the suit because he was in title to the Marengo, Illinois, property which was a subject of this suit; (3) whether the $80,000 trust fund in Joanna's name was a proper vehicle to provide child-support payments in the amount of $500 per month for Mujo Vucic; (4) whether the trial court properly valued the West Chicago property which was a subject of this suit; and (5) whether the trial court properly dismissed Teresa's motion to modify the judgment so as to provide trust fund monies for Teresa Cwieka and Don Vucic's two children, Donald Daniel Cwieka (age five) and Sean Brandon Cwieka (age three). For reasons set forth below, we find the appeal timely, but reverse and remand because we find that Donald Daniel Cwieka was a necessary party to the suit, and further conclude that an impartial third party, rather than Joanna, should have been appointed as trustee of the $80,000 trust fund.

Don Vucic and Joanna Vucic were married on December 18, 1976. Mujo Vucic was born in December 1979 and was the only child of the marriage. During their marriage, Don and Joanna acquired joint title to a private residence in West Chicago and an apartment building on North Spaulding in Chicago. Sometime thereafter, they separated and Don fathered two children, Donald Daniel Cwieka and Sean Brandon Cwieka, by Teresa Cwieka. Donald Daniel is now five years old, and Sean is three years old.

In 1987, Don Vucic sold the Chicago apartment building, realizing $108,000 on the sale. Teresa Cwieka forged Joanna's name on the sale documents, and thereafter the sale proceeds were used as partial payment on the Marengo, Illinois, home which Don and Teresa purchased for $170,000. At the time of trial, title to the Marengo home was held jointly by Teresa Cwieka and her minor son, Donald Daniel Cwieka.

Late in 1988, Don Vucic was arrested for burglary. At the time of the dissolution trial, Vucic was incarcerated for convictions on three counts of burglary in Du Page County. Also at the time of trial, there were outstanding complaints against Vucic in McHenry and De Kalb Counties for other criminal offenses for which he had yet to stand trial. At this time, this court takes judicial notice (People v. Davis (1976), 65 Ill.2d 157, 161-65, 2 Ill.Dec. 572, 357 N.E.2d 792) of Don Vucic's conviction in McHenry County of possession of Federal surplus food commodities, theft, possession of cannabis and cocaine, and possession of a stolen motor vehicle for which he was sentenced to eight years' imprisonment and fined $8,000. (People v. Vucic (Circuit Court of McHenry County, April 10, 1990), No. 89-CF-136). That case is now on appeal before this court. People v. Vucic (2d Dist.1991), 216 Ill.App.3d 692, 159 Ill.Dec. 737, 576 N.E.2d 406.

In February 1989, Joanna filed her petition for dissolution of marriage. At that time, Joanna resided with her son Mujo at the West Chicago home, while Teresa resided with her sons Donald and Sean at the Marengo home. In June 1989, Joanna filed a motion to add Teresa as a third-party defendant and later filed an amended petition for dissolution of the marriage, which claimed the apartment building in Chicago as marital property. Joanna alleged in the amended petition that the apartment building was sold without her knowledge or consent and that the proceeds from its sale were used to purchase the Marengo property. Joanna prayed for a division of the parties' interest in the Marengo property.

Teresa thereafter secured a buyer for the Marengo property and obtained an order in a separate proceeding from the circuit court of McHenry County for leave to sell the property and deposit half the proceeds for the benefit of her son Donald who, along with Teresa, was on the title to the property. The record, however, is unclear as to what was done, if anything, pursuant to that order.

The trial took place on February 9, 1990. Joanna testified that she was employed by the Village of Carol Stream; that she and her son Mujo were covered by health insurance through that employment; that in 1989 she earned $21,000 while working two jobs; and that her earnings were roughly $15,000 per year. As to the West Chicago property, Joanna testified that she and Don purchased it in 1983 for $150,000. Joanna also testified that an appraiser valued the house at $200,000. Don Vucic testified that in his opinion it was worth $300,000. No appraisal documentation was introduced as to the West Chicago property. A $19,000 mortgage remains outstanding on the property.

Joanna further testified, with supporting documentation, that the United States Internal Revenue Service (IRS) imposed a penalty of $8,451 on Joanna and Don for the 1987 tax year for negligent or intentional disregard of IRS rules and regulations regarding Don's business deductions. Joanna stated that the IRS penalty was the result of Don's failure to produce his business records, or even appear, when they were audited by the IRS.

The topic of Teresa's two children, Donald and Sean, came up twice during the trial. Each time, the trial judge ruled sua sponte that Teresa's two children were not relevant to this proceeding. The following dialogue took place between the trial judge and Don Vucic during Vucic's testimony:

"THE COURT: Mr. Vucic, do you understand that there are certain issues before this Court.

There are certain issues which are not relevant.

THE WITNESS: I don't know.

THE COURT: The only thing which this Court will rule upon are the issues which arise from the marriage between you and Joann [sic ].

THE WITNESS: But I want to be fair to her and to--

THE COURT: You can be fair to whomever you wish, the only thing I have to do is be fair to you and Joann [sic ] Vucic.

THE WITNESS: Yes, but I can see something--

THE COURT: I understand what you are saying, sir. I understand exactly what you are saying.

But I want you to understand the Court must simply look at the issues between you and Joann [sic ] Vucic and any other legal obligations which you may have."

Following Teresa's testimony that she and her minor son Donald were joint titleholders to the Marengo property, Donald was never joined as a party to the suit, nor was a guardian ad litem appointed for him.

On February 26, 1990, the court read its opinion in the case into the record. The court valued the West Chicago property as being worth $200,000 and then awarded the home and its contents to Joanna. The court barred maintenance as to both parties. The court imposed a $131,800 constructive trust on the Marengo property, that amount being the original investment of the sale proceeds from the apartment building plus one-half of the home's appreciated value. This amount was to be separated from the proceeds of the sale of the Marengo property and placed in escrow. Out of the $131,800 constructive trust, the court established an $80,000 trust for Mujo's support, a $30,000 fund for Don Vucic's immediate use and a $20,000 interest-bearing account for Don's use when he was released from incarceration. The court awarded the $1,800 balance to Joanna.

The terms of the $80,000 trust were set out in the judgment. The trust was to be held for Mujo's benefit, and in Joanna's name. Joanna would be allowed to withdraw $500 per month for child support, and in addition she could withdraw health expenses, extraordinary health expenses not covered by insurance, the insurance premiums paid by Joanna for Mujo and yet to be determined college expenses. The trust was to terminate when Mujo either reached his majority, graduated from high school, or graduated from college, whichever came last, after which the trust would terminate and all remaining funds paid to Don Vucic. In effect Joanna was appointed trustee of a substantial portion of Don's share of the marital estate.

Two passages from the court's oral opinion are relevant here. Neither passage appears in the written judgment filed on April 19, 1990. The trial judge stated:

"The Court realizes it is setting an arbitrary figure [of $500 per month] for child support, however, the Court feels that since [Don Vucic] will be unavailable for some period of time, at least with respect to his present sentence, that that amount is reasonable given the amount of interest which will accrue on the $80,000 which is in the trust and that at a future date [he] may come before the Court, once he is employed, to determine the exact amount of child support which should be paid."

The trial judge later stated:

"The Court understands that there may, although the Court at this time is not making any such findings, there may be a responsibility on the part of Mr. Vucic for the support of [Donald Daniel Cwieka and Sean Brandon Cwieka] who are the natural children of [Teresa Cwieka].

And the Court would expect that after a finding of paternity and after payments are made out of the trust fund for the minor child, Mujo, there will be sufficient monies available for the care...

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