Wade v. Wade

• Decision Date: 09 March 2012
• Docket Number: No. 1–11–1203.,1–11–1203.
• Citation: 966 N.E.2d 1093
• Parties: D.T. WADE, Petitioner–Appellee, v. S.L. WADE, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

966 N.E.2d 1093

D.T. WADE, Petitioner–Appellee,

v.S.L. WADE, Respondent–Appellant.

No. 1–11–1203.

Appellate Court of Illinois, First District, Sixth Division.

March 9, 2012.

Michael A. Haber, Lauren Bernay, Mary Katherine Danna, Kalcheim Haber, LLP, Chicago, for Appellant.

James B. Pritikin, Sylvia A. Sotiras, Michael D. Sevin, Nadler, Pritikin & Mirabelli, LLC, Paul J. Bargiel, Paul J. Bargiel, P.C., Chicago, for Appellee.

Lester L. Barclay, Barclay, Dixon & Smith, P.C., Chicago, for Child Representative Appellee.

Justice PALMER delivered the judgment of the court, with opinion.

¶ 1 Respondent, S.L. Wade (S.L.), appeals from the trial court's retroactive vacation of an agreed preliminary injunction order entered between S.L. and petitioner, D.T. Wade (D.T.). We reverse and remand.

¶ 2 D.T. and S.L. were married on May 18, 2002, in Cook County, Illinois. The parties have two children, Z.B.D. Wade and Z.M.A. Wade. D.T. filed a petition for dissolution of marriage on May 27, 2008, seeking joint custody of the children. Respondent filed a counterpetition for dissolution of marriage on August 13, 2008, seeking sole custody. On March 29, 2010, D.T. filed a petition for sole custody and amended his petition for dissolution of marriage to reflect this change. The proceedings were bifurcated and a judgment dissolving the marriage was entered on June 25, 2010. After a lengthy custody trial, the court awarded sole custody of the children to D.T. We affirmed in In re Marriage of D.T.W., 2011 IL App (1st) 111225, 357 Ill.Dec. 894, 964 N.E.2d 573.

¶ 3 Of relevance to this appeal, S.L. filed petitions seeking a preliminary injunction against D.T. alleging, among other things, that if D.T. was not enjoined from dissipating and transferring marital funds, S.L. would be irreparably damaged and without an adequate remedy at law by the time the financial issues presented in the divorce were settled or adjudicated.

¶ 4 On October 14, 2008, the parties entered an agreed preliminary injunction order (API). The terms of the API stated that D.T., his officers, agents, employees and attorneys were enjoined from selling or transferring any property or assets in D.T.'s possession or control until further order of the court. Additionally, only the parties could be signatories on their private bank wealth management account and any transactions from that account needed mutual agreement. All of D.T.'s income from his commercial endorsements and 50% of D.T.'s income from his National Basketball Association (NBA) contract, dated July 12, 2006 (which has since expired), was to be deposited into a joint account where withdrawals were to be mutually agreed to by the parties. The remaining 50% of D.T.'s income from his NBA contract, dated July 12, 2006, was to pay for certain marital expenses. Any remaining funds after these payments and disbursements would be distributed 75% to D.T. and 25% to S.L. Each party was required to account to the other party every 30 days about its use of the funds.

¶ 5 On January 7, 2009, D.T. filed his first "Motion To Vacate Agreed Preliminary Injunction Entered October 14, 2008, And For Other Relief" (first motion to vacate). On February 5, 2009, the court entered an order resolving the issues in the first motion to vacate.

¶ 6 On July 22, 2009, D.T. filed his second "Motion To Vacate, Or In The Alternative, To Modify, the October 14, 2008 Agreed Preliminary Injunction Order And For Other Relief" (second motion to vacate). In count I of the two-count motion, D.T. argued that the API was void because it was entered in response to S.L.'s amended petition for preliminary injunction, which was not filed with the clerk's office. In count II, D.T. argued that if the court did not find the API void, the API should be modified because "a substantial change in circumstances" had occurred since the API's entry. Specifically, the "substantial change in circumstances" included the timing and amount of his 2009 NBA salary and endorsement income. D.T. alleged that he would be left with insufficient cash flow to pay the expenses, litigation costs and other expenses addressed in the API, and that certain expenses addressed in the API no longer existed.

¶ 7 On February 26, 2010, the circuit court heard argument on D.T.'s second motion to vacate. Thereafter, the court entered an order denying count I of D.T.'s second motion to vacate. The court then began to hear evidence on the alternative request to modify the API. The parties did not finish presenting evidence, and the hearing was continued until July 26, 2010.

¶ 8 At numerous proceedings between July 26, 2010 and March 30, 2011, evidence was presented with regard to this matter. The record shows that the trial court initially indicated that it was conducting a modification hearing but later took the position that it had previously vacated the API when the parties appeared before the court on February 26, 2010, rather than simply denying count I of D.T.'s second motion to vacate and commencing and continuing the hearing on the issue of modification under count II.

¶ 9 The hearing was ultimately continued to March 30, 2011. By that date, D.T. had finished presenting evidence regarding the modification of the API, but S.L. had not. Before S.L. finished presenting her evidence, the court entered an order vacating the "API as to February 26, 2010." The court reasoned that it was obvious "that [the API] was not something that was functioning for either one of these parties. So what I am going to try to do is to try to set a temporary amount of support since the date when it became apparent that [the API] was not a working order." The court's order provided that D.T. continue to pay for certain expenses, including the house where S.L. lived, until the conclusion of the parties' property distribution hearings. The trial court also concurrently entered a support order requiring D.T. to pay S.L. $15,000 per month until their financial affairs were concluded.

¶ 10 On appeal, S.L. argues that the trial court erred in retroactively vacating the API because: (1) the March 30, 2011, order (March order) vacating the API was an improperly entered nunc pro tunc order; (2) S.L. was improperly denied her right to an evidentiary hearing on the necessity for a preliminary injunction; (3) the court vacated the API sua sponte without a pleading presented; (4) S.L. was deprived of her right to due process; and (5) the court erred by dissolving the API retroactively instead of prospectively.

¶ 11 Petitioner responds that the vacation was a proper exercise of judicial discretion because the trial court has the inherent power to vacate or modify a preliminary injunction, and the court's decision to vacate or modify the API was warranted under the facts of the case. Petitioner argues that if the trial court's decision is correct, it should not be reversed simply because the decision was based on incorrect reasoning. Petitioner contends that the March order was correctly entered because the status quo the preliminary injunction was intended to preserve no longer existed. At the time the API was entered, the parties were still married to each other, S.L. still had possession of their two children, and D.T.'s NBA contract, dated July 12, 2006, was still in effect. However, by March 30, 2011, the parties were no longer married, D.T. had been awarded sole custody of their children, and D.T.'s NBA contract, dated July 12, 2006, had expired. Petitioner adds that any error the trial court may have committed by making the March order retroactive is harmless because the trial court still required D.T. to continue to make payments on certain expenses. Petitioner also argues that there is nothing in the record demonstrating S.L.'s need for continued preliminary injunctive relief.

¶ 12 S.L. replies that the changed factual circumstances listed by D.T. are not relevant to the injunction. First, the March order was retroactive to February 26, 2010, and the changes in the factual circumstances occurred after February 26, 2010. Second, the financial circumstances that originally gave rise to the API are the true status quo and are unaffected by the changed factual circumstances. In particular, S.L. contends that the parties' divorce did not resolve any financial issues and left all orders in effect, including the API. S.L. further argues that the March order is not harmless because the trial court's $15,000–per–month support order pales in comparison to the $14 million that should have been escrowed under the terms of the API. S.L. also argues that the March order vacating the API leaves the marital accounts unprotected, potentially leaving no marital assets for division at the conclusion of the property distribution hearings.

¶ 13 A trial court's decision to dissolve an injunction will be...