Rochford v. Laser

• Citation: 91 Ill.App.3d 769,46 Ill.Dec. 943,414 N.E.2d 1096
• Decision Date: 02 December 1980
• Docket Number: No. 79-2136,79-2136
• Parties: , 46 Ill.Dec. 943 In re the Marriage of Sharon ROCHFORD, Petitioner-Appellee, and Michael Rochford, Respondent, v. Jules M. LASER and Carol Beth Lazarus, Intervening Petitioners-Appellants.
• Court: United States Appellate Court of Illinois

Page 1096

414 N.E.2d 1096

91 Ill.App.3d 769, 46 Ill.Dec. 943

In re the Marriage of Sharon ROCHFORD, Petitioner-Appellee and Michael Rochford, Respondent, v. Jules M. LASER and Carol Beth Lazarus, Intervening Petitioners-Appellants.

No. 79-2136.

Appellate Court of Illinois, First District, Second Division.

Dec. 2, 1980.

Laser, Schostok, Kolman & Frank, Chicago (Richard G. Schoenstadt, Chicago, of counsel), for Jules M. Laser, intervening petitioner-appellant.

David B. Schulman and David L. Eaton, Chicago, for Carol Beth Lazarus, intervening petitioner-appellant.

Katz, Karacic & Helmin, Chicago (Thomas J. Karacic, Kenneth A. Helmin and T. Gregory Mieczynski, Chicago, of counsel), for Sharon Rochford, petitioner-appellee.

PERLIN, Presiding Justice:

This appeal arises out of certain post-judgment petitions brought by Sharon Rochford (petitioner-appellee) against her former husband, Michael Rochford (respondent) because of the latter's failure to comply with the terms of a judgment for dissolution of marriage entered on August 11, 1978. As a result of Michael Rochford's non-compliance, the trial court found him in wilful contempt of court and appointed a sequestrator to seize Rochford's seat on the Chicago Mercantile Exchange. Before the sequestrator was appointed, both appellants, Jules M. Laser (hereinafter referred to as Laser) and Carol Beth Lazarus (hereinafter referred to as Lazarus), had obtained money judgments by confession against Michael Rochford. Laser filed a writ of execution on his judgment. Lazarus did not. After the sequestrator had sold Rochford's membership on the exchange for $255,000, Laser and Lazarus, together with other creditors of Michael Rochford not parties to this appeal, petitioned the trial court for leave to intervene in the sequestration proceedings and present their claims against the proceeds from the sale. Their petitions to intervene were granted. After a hearing, the trial court denied their claims and ordered the disbursement of the funds to satisfy the terms of the original judgment dissolving the Rochfords' marriage. From that order Laser and Lazarus have appealed. The following issues are presented for review: (1) whether either of the judgments Laser and Lazarus obtained by confession against Michael Rochford created a lien against Rochford's seat on the Chicago Mercantile Exchange or the proceeds from the sale thereof; and (2) whether Sharon Rochford's attempt to enforce the conditions of the dissolution of marriage judgment through the equitable remedies of contempt and sequestration was proper and independent of any remedies she may have had at law.

For the reasons hereinafter set forth we affirm the order of the trial court.

On August 11, 1978 the trial court entered a judgment dissolving the marriage between respondent Michael Rochford (not a party to this appeal) and petitioner-appellee Sharon Rochford. That judgment required Michael Rochford, who was then represented by Laser, to pay Sharon Rochford $3600 per month for maintenance and child support; to assign to her his interest in a land trust holding title to their former residence free and clear of all liens except for the first mortgage; to hold her harmless from any obligation he was assuming; and to reimburse her immediately for all monies paid and all expenses incurred, including reasonable attorneys' fees, in the event she was required to pay any of the obligations assumed by Michael Rochford. Michael Rochford was also ordered to pay $9200 to the law firm of Katz, Karacic & Helmin for Sharon Rochford's attorneys' fees.

Michael Rochford did not satisfy these terms and, as a result, Sharon Rochford brought post-judgment proceedings to force him to abide by the orders entered on August 11, 1978.

On October 30, 1978 Michael Rochford was found to be in wilful contempt of court. He was again found in contempt on December 5, 1978 and January 2, 1979. Body attachments were issued against him but were never executed. On January 22, 1979 Sharon Rochford moved the trial court to enter certain temporary restraining orders to assist her in effectuating the original judgment. The principal relief requested was an order requiring Michael Rochford and/or his wholly owned "Fire Trading, Inc." to sell his seat on the Chicago Mercantile Exchange with the proceeds to be applied to the arrearages in child support payments ($13,618), and to the satisfaction of an Internal Revenue Service levy ($55,000) on the marital home. A temporary restraining order was issued on January 22, 1979 and extended on January 30, 1979 to February 8, 1979. On January 30, 1979, the same day the restraining order was extended, Laser confessed judgment on a demand promissory note signed by Michael Rochford on August 19, 1975. The judgment was for $11,990.87, representing the unpaid balance of the original note ($8500) plus 8% interest per annum and attorney's fees. On February 5, 1979, six days after judgment was confessed on the note, Laser filed a writ of execution with the Sheriff of Cook County seeking satisfaction of the judgment by levying on Michael Rochford's non-exempt property. The writ was returned, "no part satisfied," on February 24, 1979.

In response to Sharon Rochford's petitions, on February 9, 1979, the trial court entered an order retroactive to February 8, 1979 (the expiration date of the extended temporary restraining order), appointing a sequestrator, Jay A. Brown, to arrange a sale of Michael Rochford's seat on the mercantile exchange within 30 days. The court found that Michael Rochford had secreted himself from the jurisdiction of the court and that he had willfully failed to comply with the judgment for dissolution of the marriage. With respect to the latter finding, the court recited in its order that Rochford had made collateral assignments of his interest in the land trust holding title to the marital residence to Central National Bank and Glenview State Bank; that he had not paid a $56,444.73 tax levy the Internal Revenue Service had placed on the marital home; and that he was in arrears in child support payments in the amount of $17,218.

After this order was entered and before the membership was sold, Lazarus obtained a judgment by confession against Michael Rochford in the amount of $4,185.17. This judgment, entered on February 23, 1979, was based on a promissory note Rochford had given Lazarus allegedly in connection with certain business transactions between them at the mercantile exchange.

On February 26, 1979 Rochford's seat on the exchange was sold by the sequestrator for $255,000. The trial court approved the sale. On April 18, 1979 Lazarus filed a petition to intervene in the sequestration proceedings. On April 24th Laser filed a similar petition. Together with other persons not parties to this appeal, Lazarus and Laser were allowed to intervene on May 2, 1979. On the same day, the trial court authorized the following distribution of the proceeds from the sale: Central National Bank received $133,865.10, for collateral assignments Rochford had made on the marital home; the Internal Revenue Service, $59,969.42, for its tax lien on the Rochfords' home; and Sharon Rochford, $15,000, for arrearages in child support. The balance of $46,165.48 was deposited with the sequestrator. Neither of the appellants disputes this initial distribution.

A pre-trial hearing was held to give the intervenors an opportunity to present evidence in support of their respective claims. As a result of this hearing, the court, on August 1, 1979, denied the relief sought by Laser and Lazarus and directed the sequestrator to disburse the funds as follows:

(1) Sharon Rochford, $20,210, representing the amount of support payments Michael Rochford was in arrears;

(2) The law firm of Katz, Karacic & Helmin, $16,700, for attorneys' fees in representing Sharon Rochford in her dissolution of marriage proceedings and the post-judgment actions;

(3) The sequestrator, Jay A. Brown, $3,000 for his services;

(4) The Rochford minor children, $6,255.48, to be held in trust for their benefit.

A draft order authorizing these payments was signed by the court on August 2, 1979, and the disbursements were thereafter made by the sequestrator. From that order Laser and Lazarus have appealed.

I.

Part A. Laser's Claim as A Judgment Lien Creditor.

Laser argues that as a judgment lien creditor of Michael Rochford he had a claim to Rochford's seat on the exchange or at least to the proceeds from the sale superior to that of either Lazarus or Sharon Rochford. Section 10 of the statute on judgments, decrees and executions (Ill.Rev.Stat.1977, ch. 77, par. 1 et seq.) states:

"All and singular the lands, tenements, real estate, goods and chattels (except such as is by law declared to be exempt) of every person against whom any judgment has been or shall be hereafter obtained in any court for any debt, damages, costs or other sums of money, shall be liable to be sold upon execution, to be issued upon such judgment."

A lien on the property specified in section 10 is not created by a judgment until a writ of execution on that judgment has been delivered to the sheriff or other proper officer to be executed. (Ill.Rev.Stat.1977, ch. 77, par. 9; Century Pipe & Supply Co. v. Empire Factors (1st Dist. 1958), 19 Ill.App.2d 165, 153 N.E.2d 298.) In the case at bar Laser obtained a judgment against Michael Rochford on January 30, 1979 in the amount of $11,990.84. On February 5, 1979 Laser filed a writ of execution with the sheriff's office to satisfy his judgment. Laser thus became a judgment lien creditor of Michael Rochford on February 5, 1979. He was entitled to levy on all property of Rochford that was subject to execution. Under section 10 that property includes non-exempt lands, tenements, real estate, goods and chattels. On the date Laser obtained his lien, February 5, 1979, the sequestrator had not yet been appointed by the court and Michael...