In re Estate of Lee , 2017 IL App (3d) 150651 ( 2017 )

2017 IL App (3d) 150651Opinion filed August 14, 2017
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
In re ESTATE OF SANDRA K. LEE, ) Appeal from the Circuit Court
) of the 21st Judicial Circuit,
Deceased ) Kankakee County, Illinois.
)
(Camden Lee, Jordan Lee, and Zoe Lee, )
)
Petitioners-Appellees, )
)
v. )
) Appeal No. 3-15-0651
Kathleen Line, Trustee of the Sandra K. ) Circuit No. 05-P-51
Lee Trust, and Jennifer Mansberger, )
Executor of the Estate of Sandra K. Lee, )
)
Respondents) )
)
(Kathleen Line, ) The Honorable
) Michael J. Kick,
Respondent-Appellant). ) Judge, presiding.
____________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices Lytton and O’Brien concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 In a probate proceeding, the beneficiaries of a testamentary trust sought to have the
trustee, Kathleen Line, provide an accounting of the trust; to have the executor of the decedent’s
estate, Jennifer Mansberger, pay certain sums directly to the beneficiaries, rather than to the
trust; to hold Kathleen in contempt for failing to provide an accounting; and to remove Kathleen
as the trustee of the trust. After hearings, the Kankakee County circuit court granted all of the
beneficiaries’ requests. Kathleen appeals and challenges those rulings. We affirm all of the
orders in question, except for the contempt order, as to which we reverse, vacate the sanction
imposed, and remand for further proceedings.
¶2 FACTS
¶3 The decedent, Sandra K. Lee, died in January 2005. She was survived by her three minor
children, Camden Lee (born in 1988), Jordan Lee (born in 1989), and Zoe Lee (born in 1995).
Sandra had a will, which was executed in December 2004. Of relevance to this appeal, the will
(1) named Jennifer as the executor of Sandra’s estate, (2) established a testamentary trust for the
benefit of Sandra’s three children, (3) bequeathed the residuary estate to the trust, and (4) named
Kathleen as the trustee of the trust and the guardian of the children. More specifically, the
language in the will pertaining to the trust (referred to hereinafter as the trust), provided that
Kathleen was to apply the income and such amounts of the principal as she, “in [her] sole
discretion,” determined was “necessary for the support, health, welfare, and education” of the
children. The trust stated further that it was Sandra’s “primary purpose to provide for [the]
support, health, welfare, and education of [her] children irrespective of the effect that such may
have upon the interest of any remainderman under [the] trust.” The trust also provided that as
each child reached the age of 25, he or she was to receive one-third of the trust assets.
¶4 In February 2005, Jennifer filed a petition to admit the will to probate and to appoint
herself as the executor of Sandra’s estate. Along with the petition, Jennifer also filed an
inventory, showing that the value of Sandra’s personal estate was approximately $233,000. Later
2
that same month, the trial court granted Jennifer’s petition, admitted Sandra’s will to probate,
and appointed Jennifer as the executor of Sandra’s estate.
¶5 Shortly after Sandra passed away, the children, except for Camden, moved in with
Kathleen and lived with Kathleen and her family for the next several years. Camden was in the
Department of Corrections at the time of Sandra’s death and, upon being released, moved in with
Kathleen and her family as well.
¶6 In April 2010, five years after the children had moved in with Kathleen and her family,
Kathleen filed a petition in the trial court demanding that Jennifer provide an accounting of the
estate and that Jennifer release estate assets to Kathleen as the trustee of the trust. The following
month, Jennifer filed an accounting of the estate. The accounting indicated that the estate started
with a balance of approximately $269,000 in cash or other assets and that certain itemized
disbursements were made over a five-year period for the benefit of the children. Most notably,
$90,000 was distributed to Kathleen as the trustee of the trust in April 2009, and $100,000 was
distributed to Kathleen as the trustee of the trust in December 2009. Jennifer’s accounting
indicated further that as of the last time a yearly statement was received, the estate had about
$4000 in a checking account and about $43,000 in a stock account. After some additional court
dates and the tender of some discovery from Jennifer to Kathleen, the case was continued
generally, to be brought before the trial court if necessary.
¶7 In August 2014, Jordan filed a petition in the trial court for an accounting of the estate by
Jennifer (as the executor) and of the trust by Kathleen (as the trustee). 1 Neither Jennifer nor
Kathleen objected to the petition. By agreement of the parties, therefore, the trial court ordered
1
Although not quite clear from the record, it appears that the other two children, Camden and
Zoe, later joined in that petition and were parties to the other pleadings filed in this case. All three of the
children were represented by the same attorney.
3
Jennifer to prepare an accounting of the estate and Kathleen to prepare an accounting of the trust.
Jennifer filed her accounting in October 2014. Jennifer’s accounting indicated that the estate had
assets of approximately $81,000 ($4000 in a checking account and $77,000 in a stock account).
Kathleen, however, after requesting and receiving a continuance, failed to file an accounting of
the trust.
¶8 In January 2015, the trial court issued a rule to show cause against Kathleen for failing to
file the accounting in a timely manner. The petition for rule, which had previously been filed, did
not specify what type of contempt finding was being sought against Kathleen, asked to have
Kathleen “punished accordingly” for her contempt of court, and requested an award of
reasonable attorney fees for the “enforcement of the court’s orders and the filing of the necessary
petitions to obtain the accounting.” Later that same month, Jordan, Camden, and Zoe
(collectively referred to as the children) filed a request with the trial court asking the court to
order that the remaining funds held by Jennifer, as the executor of the estate, be released directly
to them, rather than to the trust.
¶9 In February 2015, a hearing was held on the rule to show case. After calling the motion
for hearing, the trial court immediately asked Kathleen’s attorney if he was going to present any
evidence as to why Kathleen should not be held in contempt of court. The trial court spoke of
Kathleen purging herself of any possible contempt. Ultimately, Kathleen’s attorney did not
present any evidence, nor did the children’s attorney. At the conclusion of the hearing, the trial
court found Kathleen in contempt of court for failing to file the accounting in a timely manner.
¶ 10 In April 2015, Kathleen filed her original accounting, which was subsequently amended.
Relying primarily upon a study done by the United States Department of Agriculture (USDA)
rather than actual expenses, the amended accounting provided estimated amounts that had been
4
spent on behalf of the children over the past several years, although some specific expenses were
listed. The amended accounting indicated that Camden had lived with Kathleen and her family
for 3.5 years, that Jordan had lived with Kathleen and her family for 8.51 years, and that Zoe had
lived with Kathleen and her family for 9.5 years. In addition, Camden’s girlfriend and son had
also lived with Kathleen and her family for 3.5 years at Camden’s request. During the time
period when the children had lived with Kathleen, the trust had received $190,000 from the
estate and approximately $158,000 from Social Security for the children’s benefit and had spent
approximately $505,000 on the children. Thus, according to Kathleen, the trust had a shortage of
approximately $315,000, which presumably had been paid for by Kathleen and her family.
Among the expenses listed in the amended accounting were the interest paid on a new house that
Kathleen’s family had built in December 2005 and a new car that Kathleen’s family had
acquired. No receipts, copies of checks, or anything of that nature were attached to the
accounting, other than a copy of the USDA study.
¶ 11 Later that same month, the children filed a petition in the trial court for the removal of
Kathleen as the trustee of the trust. Kathleen objected to the petition and argued that she was
entitled to reimbursement from the estate or the trust for her family’s own money that was spent
to support the children over the past several years.
¶ 12 In May 2015, the children filed objections to Kathleen’s amended accounting and asked
the court to enter a judgment against Kathleen for $190,000, the amount that Kathleen, as trustee,
had received from the estate, plus interest. Kathleen filed a motion to dismiss the objections and
the request for judgment. In the motion to dismiss, Kathleen asserted for the first time that she
had no duty under the law or under the terms of the trust to provide an accounting.
5
¶ 13 A hearing was held later that month on the contempt sanction to be imposed upon
Kathleen and on the children’s motion to distribute the remaining estate assets directly to them,
rather than to the trust. During arguments on those matters, when Kathleen’s attorney asserted
that Kathleen had no statutory duty to file an accounting, the trial court responded that
Kathleen’s attorney was raising something that was “over” and that it had already ordered
Kathleen to provide the accounting, which she had failed to do. After the arguments of the
attorneys had concluded, the trial court ordered Kathleen to pay the children’s reasonable
attorney fees related to the filing and prosecution of the rule to show cause as the sanction to be
imposed upon the finding of contempt. As for the motion to distribute, the trial court granted the
children’s motion and ordered Jennifer, as the executor of the estate, to distribute $20,000 of the
estate’s residuary assets to Camden and $20,000 to Jordan—both of whom had reached the age
of 25—as an advance on their one-third share of the remaining trust property. The trial court
ordered further that Jennifer was to retain the balance of the estate’s assets in her capacity as the
executor. Kathleen filed a motion to reconsider.
¶ 14 On two court dates in June and July 2015, an evidentiary hearing was held on the
children’s petition to remove Kathleen as the trustee of the trust. At the hearing, testimony was
provided by Kathleen, Jordan, Zoe, and Kathleen’s husband, Scott. In her testimony, Kathleen
acknowledged that she did not keep records for most of the money that she had spent on the
children, although she did have some records, which were not attached to the accounting. The
money that Kathleen received from the estate and from Social Security for the benefit of the
children initially went into what was presumably a trust account and was then transferred into
Kathleen’s own account. According to both Kathleen and Scott, they built a new house because
their current house did not have enough bedrooms for Sandra’s children, and they bought a new
6
car because they could not fit the three additional children (Sandra’s children) into the pickup
truck that they owned. Kathleen stated further that her family had sold many of their own
personal belongings to raise money to support the children, especially during the first five years,
because Jennifer had not turned over any money from the estate to the trust and had not even told
Kathleen that there was money that could be turned over to the trust to be used for the children’s
benefit. Kathleen denied that she had kept any of the children’s funds for herself and stated that
all of the funds were used for the benefit of the children. At the conclusion of the hearing, the
trial court took the petition for removal under advisement to give the parties time to file written
arguments.
¶ 15 Also in July 2015, the trial court held a hearing on Kathleen’s motion to reconsider. At
the conclusion of the hearing, after listening to the arguments of the attorneys, the trial court took
the motion under advisement.
¶ 16 In September 2015, an order was entered as to the contempt sanction. The amount of the
children’s attorney fees was set forth in an affidavit by the children’s attorney. Attached to the
affidavit was the attorney’s detailed billing statement for services rendered from April 2014
through May 2015, which included such things as preparing the petition for accounting,
preparing the petition for rule to show cause, preparing the petition for removal of trustee,
preparing the motion for distribution of funds from the estate to the beneficiaries, attending the
court hearings related to the petition for accounting, and attending the court hearings related to
the petition for rule to show cause. The total amount of fees shown on the attorney’s detailed
billing statement was $3180. Kathleen was ordered to pay the full amount.
¶ 17 An order was also entered that same month denying Kathleen’s motion to reconsider.
After the motion to reconsider was denied and the contempt sanction had been determined,
7
Kathleen filed her initial notice of appeal in this case. In the initial notice of appeal, Kathleen
challenged the order directing Jennifer to distribute the estate assets directly to the beneficiaries
(distribution order), rather than to the trust, and the order finding Kathleen in contempt of court
for failing to file the accounting (contempt order).
¶ 18 In December 2015, at a status hearing, the trial court rendered its decision on the petition
for removal. After considering the evidence presented, the written arguments of the attorneys,
and the applicable law, the trial court found that the evidence was “overwhelming and basically
uncontroverted that the Trustee [Kathleen] violated her fiduciary duty by essentially treating the
trust money as if it were her own.” The trial court, therefore, granted the petition to remove
Kathleen as the trustee of the trust. The trial court’s written order, which was entered the
following month, stated that:
“the unrebutted evidence established that the Trustee, Kathleen Line, failed to
maintain sufficient records of the trust income and expenditures and commingled
the funds of the trust with her personal funds and used the trust assets as if they
were her own property.”
After the written order was entered, Kathleen filed an amended notice of appeal. In the amended
notice, Kathleen appealed the distribution order, the contempt order, and the removal order.
¶ 19 ANALYSIS
¶ 20 I. Whether this Court Has Jurisdiction
to Rule Upon the Issues Raised in This Appeal
¶ 21 Before we address the issues raised in this appeal, we must first determine whether this
court has jurisdiction to rule upon those issues. Although neither party has raised a question as to
appellate court jurisdiction in this case, we have an obligation before going forward to determine
8
whether jurisdiction to hear this appeal exists and to dismiss this appeal if jurisdiction is lacking.
See Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536, 539 (1984). In general, when multiple
parties or multiple claims are involved in a case, a final order or judgment that does not resolve
all of the claims between all of the parties (that does not dispose of the entire case) is not an
appealable order and does not become appealable until all of the claims have been resolved,
unless the trial court makes an express written finding pursuant to Illinois Supreme Court Rule
304(a) (eff. Feb. 26, 2010) that there is no just reason to delay either enforcement or appeal of
the judgment. In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008). However, under certain
circumstances specified in Rule 304(b) (eff. Feb. 26, 2010), an appeal may be taken in a
multiple-party/multiple-claim case before the entire case is completely resolved without a Rule
304(a) finding. Specific to this case, Rule 304(b)(1) provides that “[a] judgment or order entered
in the administration of an estate, guardianship, or similar proceeding which finally determines a
right or status of a party” is appealable without the requirement that a Supreme Court Rule
304(a) finding be made by the trial court. Ill. S. Ct. R. 304(a), (b)(1) (eff. Feb. 26, 2010).
¶ 22 In explanation of that provision, the committee comments to the rule provide that:
“Paragraph (b), added in 1969, lists several kinds of judgments and orders
that have been appealable without a finding that there is no just reason for
delaying enforcement or appeal even though they may not dispose of the entire
proceeding in which they have been entered or to which they may be related. This
paragraph is intended to be declaratory of existing law and, in certain instances, to
remove any doubt or room for argument as to whether the finding provided for in
paragraph (a) may be necessary. It is not the intention of the committee to
eliminate or restrict appeals from judgments or orders heretofore appealable.
9
Subparagraph (1) applies to orders that are final in character although
entered in comprehensive proceedings that include other matters. Examples are an
order admitting or refusing to admit a will to probate, appointing or removing an
executor, or allowing or disallowing a claim.” Ill. S. Ct. R. 304, Committee
Comments (rev. Sept. 1988).
¶ 23 Although the examples listed in the committee comments would seem to indicate that the
application of Rule 304(b)(1) is fairly limited, the rule has been interpreted to allow for appellate
review in several different types of situations. See 18 Robert S. Hunter, Illinois Practice Series,
Estate Planning and Administration § 154:4 (4th ed. 2007). The courts have done so in an effort
to promote efficiency and the sound and practical administration of estates, guardianships, trusts,
and other similar types of proceedings because the courts have recognized that some issues in
those types of lengthy proceedings must be resolved with certainty to avoid having to repeat the
entire proceeding over again. See In re Trusts of Strange, 324 Ill. App. 3d 37, 41-42 (2001)
(citing In re Estate of Kime, 95 Ill. App. 3d 262, 268 (1981)). Thus, with those types of issues,
the courts have allowed or required that an immediate (within 30 days of the entry of the
judgment) appeal be filed. Id.¶ 24 We believe that the issues raised in the present case as to the estate and trust are the types
of issues to which an immediate appeal under Rule 304(b)(1) would apply. Thus, for the
purposes of judicial efficiency and to facilitate the sound and practical administration of the
estate and trust in the present case, we find that the orders appealed in this case as to the estate
and trust were final and appealable orders under Rule 304(b)(1) and that we have appellate
jurisdiction to consider the merits of the issues raised as to those orders. See Ill. S. Ct. R.
304(b)(1) (eff. Feb. 26, 2010); Hunter, supra § 154:4; Strange, 324 Ill. App. 3d at 41-42; In re
10
Estate of Thorp, 282 Ill. App. 3d 612, 617 (1996) (stating that the interpretation of a will is one
of the specific issues in the administration of an estate that requires certainty and for which an
immediate appeal must be brought under Rule 304(b)(1)); In re Estate of Neisewander, 130 Ill.
App. 3d 1031, 1033 (1985) (finding that an order approving an interim accounting of an estate
was a final and appealable order under Rule 304(b)(1)); Barnhart v. Barnhart, 415 Ill. 303, 309
(1953) (finding that the trial court’s order, which determined the rights of the opposing claimants
to certain trust property, was a final and appealable order); In re Estate of Russell, 372 Ill. App.
3d 591, 593 (2007) (applying Rule 304(b)(1) in a proceeding relating to the administration of a
trust). In addition, as to the contempt order, because a penalty was imposed, that order was a
final and appealable order as well. In re Marriage of Newton, 2011 IL App (1st) 090683, ¶¶ 7-8
(stating that a contempt judgment that imposes a penalty is a final and appealable order). Having
found that appellate jurisdiction exists as to each of the issues raised in this appeal, we will now
address the merits of those issues.
¶ 25 II. Whether the Trial Court Erred in Ordering
Kathleen to Provide an Accounting of the Trust
¶ 26 As her first point of contention on appeal, Kathleen argues that the trial court erred in
ordering her to provide an accounting of the trust to the children (the beneficiaries of the trust).
Kathleen asserts that the trial court’s ruling was erroneous because she had no duty under the
applicable statutes or under the trust itself to provide an accounting to the children. As the
children correctly point out, however, Kathleen has forfeited that argument on appeal because
she failed to initially object to the children’s request for an accounting in the trial court and
allowed the order requiring an accounting to be entered by agreement. Indeed, in the present
case, Kathleen did not even make her assertion—that she had no duty to provide an accounting—
until well after the accounting had been ordered and Kathleen had been found in contempt for
11
failing to provide it. Under the circumstances of the present case, Kathleen cannot now assert on
appeal that the trial court’s order requiring an accounting was entered in error. See In re
Detention of Traynoff, 358 Ill. App. 3d 430, 441 (2005) (stating that in civil cases, as a general
rule, a party forfeits an objection if the party fails to raise that objection in a specific and timely
manner); McMath v. Katholi, 191 Ill. 2d 251, 255 (2000) (finding that a party forfeits her right to
complain about an error when to do so would be inconsistent with the position taken by the party
in an earlier court proceeding or when the party consented to or induced the court to make that
error).
¶ 27 Furthermore, even if we had concluded that Kathleen’s argument had not been forfeited,
we would have still ruled in the children’s favor on this issue. Under the Trusts and Trustees Act
(Act), a trustee is required to provide a yearly accounting to any person who is entitled to receive
the trust income or who is receiving the trust income, or if none, to any person who is eligible to
have the benefit of the trust income. 760 ILCS 5/11(a) (West 2014). The trust language in this
case is clear and unambiguous that the income and the principal of the trust were to be used for
the benefit of the children. The children, therefore, as the parties who were eligible to receive the
benefit of the trust income, were entitled under the statute to a yearly accounting of the trust from
Kathleen. See 760 ILCS 5/11(a) (West 2014); Wallace v. Malooly, 4 Ill. 2d 86, 94-95 (1954)
(recognizing the legal principles, as stated in the Restatement (First) of Trusts § 173, at 314-15
(1935), that (1) a beneficiary has the right to an inspection upon demand so that the beneficiary
can verify that the trust is being properly executed, as long as the beneficiary’s purpose in doing
so is proper; and (2) a beneficiary is always entitled to such information as is reasonably
necessary to enable the beneficiary to enforce his rights under the trust or to prevent or redress a
breach of trust); Goodpasteur v. Fried, 183 Ill. App. 3d 491, 493-95 (1989) (finding that the
12
plaintiff, a named beneficiary of a testamentary trust in which the income and principal were to
be held for the benefit of the plaintiff and three other beneficiaries during their lifetimes to help
them pay for their living expenses if they were unable to do so, was eligible to have the benefit
of the income from the trust and was, therefore, entitled to an accounting under section 11 of the
Act).
¶ 28 III. Whether the Trial Court Erred in Ordering
Jennifer to Distribute $40,000 From the Estate to the
Children Directly, Rather Than to Kathleen as the Trustee of the Trust
¶ 29 As her second point of contention on appeal, Kathleen argues that the trial court erred in
ordering Jennifer to distribute $40,000 from the estate to two of the children directly ($20,000
each), rather than to Kathleen as the trustee of the trust. Kathleen asserts that by doing so, the
trial court substantially changed the terms of Sandra’s will. Kathleen asserts further that she was
entitled to those funds as reimbursement for her own family’s money that was spent to support
the children during the first five years that they lived with Kathleen when Jennifer failed to turn
over any funds from the estate to the trust. In making those assertions, Kathleen reiterates that
she had no duty under the statutes or the trust document itself to provide an accounting of the
trust. For all of the reasons stated, Kathleen asks that we reverse the trial court’s ruling and order
that the $40,000 be distributed to the trustee (presumably Kathleen) and not directly to the
children.
¶ 30 The children argue that the trial court’s ruling was proper and should be upheld. The
children assert that the trial court’s ruling did not modify the terms of the will, as Kathleen
suggests, but, rather, carried out the purpose of the trust—to provide for the children. The
children assert further that Kathleen’s argument should be rejected because (1) Kathleen is no
longer the trustee of the trust and does not, therefore, have any right to any of the funds from the
13
trust, (2) there are no provisions in the trust that give Kathleen the right to use the trust funds for
her own personal use, (3) Kathleen has not filed a legal claim against the trust or the estate for
reimbursement for her own money that she allegedly spent on the children and has not obtained a
judgment to that effect, (4) Kathleen’s claim that she is entitled to reimbursement is not
supported by a valid accounting, and (5) the trial court’s ruling was the only way to ensure
compliance with the intent of the trust and its directions as to distribution. For all of the reasons
set forth, the children ask that we affirm the trial court’s ruling ordering Jennifer to pay $40,000
from the estate directly to two of the children.
¶ 31 The arguments raised under this issue potentially involve two different standards of
review. To the extent that we are called upon to review the trial court’s interpretation of the
terms of the trust, we will apply a de novo standard of review. See Altenheim German Home v.
Bank of America, N.A., 376 Ill. App. 3d 26, 32 (2007). However, to the extent that we are called
upon to review the trial court’s determination of the appropriate remedy to impose in this
particular situation, we will apply an abuse of discretion standard of review. See Tully v. Edgar,
286 Ill. App. 3d 838, 847 (1997) (recognizing that the trial court has broad discretion in
fashioning an appropriate remedy to grant the relief that equity requires to correct a wrong);
Chicago Bar Ass’n v. White, 386 Ill. App. 3d 955, 958 (2008) (stating that whether the trial court
chose the best remedy from those remedies available is reviewed on appeal for an abuse of
discretion). The threshold for finding an abuse of discretion is a high one and will not be
overcome unless it can be said that the trial court’s ruling was arbitrary, fanciful, or
unreasonable, or that no reasonable person would have taken the view adopted by the trial court.
See Blum v. Koster, 235 Ill. 2d 21, 36 (2009); In re Leona W., 228 Ill. 2d 439, 460 (2008).
14
¶ 32 In addressing this particular issue, as our statement of the applicable standards of review
indicates, we must be mindful of the legal principles that apply to the interpretation of a trust and
to the trial court’s authority and ability to fashion an appropriate remedy. First, as to the
interpretation of a trust, we note that the same rules are applied that are used for the
interpretation of a will. Spencer v. Di Cola, 2014 IL App (1st) 121585, ¶ 20. The primary goal in
interpreting a trust is to determine and give effect to the settlor’s intent, which a court will
generally enforce unless contrary to law or public policy. Id. The best indicator of the settlor’s
intent is the plain language of the trust document itself, considered as a whole. See id. When the
trust language is clear and unambiguous, the intent of the settlor must be determined from that
language, without resorting to extrinsic evidence to aid in interpretation. Altenheim German
Home, 376 Ill. App. 3d at 32. In such a situation, a court should not allow extrinsic evidence to
be used to override the intent of the settlor so as to, in effect, allow a stranger to the original
proceeding make a trust for the settlor. See Handelsman v. Handelsman, 366 Ill. App. 3d 1122,
1133 (2006). In addition, if possible, a court should construe a trust so that no language is treated
as surplusage, made insignificant, or rendered nonsensical. Spencer, 2014 IL App (1st) 121585,
¶ 20.
¶ 33 Second, as to the trial court’s authority or ability to determine an appropriate remedy, we
note that the court has broad discretion to do so in its effort to correct the particular wrong that is
before it. See Westcon/Dillingham Microtunneling v. Walsh Construction Co. of Illinois, 319 Ill.
App. 3d 870, 878 (2001). In determining an appropriate remedy, the trial court must consider
what is fair, what is workable, and any prejudice that may result. Id. The court may also
consider, in deciding upon an appropriate remedy, the relative benefits to, and hardships of, the
parties involved. Id.15
¶ 34 After considering the above legal principles as they pertain to the present case, we find
that the trial court did not err in ordering Jennifer, as the executor, to turn over $40,000 of the
residuary assets of the estate to Camden and Jordan ($20,000 each), rather than to the trust. In
this particular case, the language of the will and of the trust was clear and unambiguous. The will
provided that all of the residuary estate was supposed to be transferred to the trust to be used for
the benefit of the children, and the trust provided that upon reaching the age of 25, each child
was to receive a one-third share of the remaining trust assets. The only question before the trial
court was how best to effectuate that intent going forward. At that particular time, the trial court
was faced with a situation where the residuary estate had not been immediately turned over to the
trust, the estate still had some residuary assets in its possession, the trustee of the trust had
commingled the trust assets with her own and had not kept records of many of the expenses that
were incurred on behalf of the children, and two of the children had turned 25. The trial court,
therefore, had to fashion an appropriate remedy to address that situation, while still trying to give
effect to Sandra’s intent as set forth in the will and the trust. The remedy selected by the trial
court in this particular case did just that—it disbursed an approximate one-third share of the
remaining residuary assets to the two children who had turned 25, as called for by the trust, and
did so in a manner that was mindful of the ongoing concerns with Kathleen acting as trustee.
Under the unique circumstances of this particular case, therefore, we find that the trial court’s
order did not alter the intent of Sandra’s will or trust (see Spencer, 2014 IL App (1st) 121585,
¶ 20) and did not constitute an abuse of discretion (see Blum, 235 Ill. 2d at 36; Leona W., 228 Ill.
2d at 460).
16
¶ 35 IV. Whether the Trial Court Erred in Finding
Kathleen in Contempt for Failing to Provide the Accounting
¶ 36 As her third point of contention on appeal, Kathleen argues that the trial court erred in
finding her in contempt of court for failing to provide the accounting of the trust. Kathleen
asserts that the trial court’s contempt order was defective because (1) it contained no method of
payment nor any date by which payment was supposed to be made, (2) it required her to pay for
attorney fees that were not related to the rule to show cause, (3) it did not provide the means by
which Kathleen could purge herself of contempt, and (4) the proper procedure was not followed
in that no rule to show cause was prepared, signed by a judge, or served on Kathleen (asserted in
the reply brief). Kathleen asks, therefore, that we reverse the trial court’s contempt order.
¶ 37 The children argue that the trial court’s contempt ruling was clear, direct, and proper and
that it should be upheld. The children assert that the contempt order (1) did not contain a purge
provision because there was nothing left to purge and (2) created no confusion as to the method
or date of payment in that it was to be paid to the children through their attorney as of the date of
the order. The children ask, therefore, that we affirm the trial court’s contempt ruling.
¶ 38 All courts have the inherent power to punish a party for contemptuous conduct. See In re
Marriage of Weddigen, 2015 IL App (4th) 150044, ¶ 19. That power is essential to the
maintenance and administration of the court’s judicial authority. Id. Whether a party is guilty of
contempt is a question of fact for the trial court to decide. Id. ¶ 22. A reviewing court will not
disturb a trial court’s determination in that regard unless it is against the manifest weight of the
evidence or the record indicates an abuse of discretion. In re Marriage of Logston, 103 Ill. 2d
266, 286-87 (1984).
¶ 39 A contempt proceeding may be classified as being either criminal or civil in nature and
also as being either direct or indirect. See In re Marriage of Betts, 200 Ill. App. 3d 26, 43 (1990).
17
The determination as to whether a contempt proceeding is criminal or civil in nature is made
based upon the main purpose of the contempt sanction imposed. Id. If the main purpose of the
sanction imposed is to coerce future conduct, the contempt is civil in nature, whereas if the main
purpose of the sanction is to punish the prior conduct of the offending party, the contempt is
criminal in nature. Id. at 43-44. The determination as to whether the contempt is direct or
indirect, however, is made based upon where the contemptuous conduct occurred. See id. at 47-
48. If the contemptuous conduct occurred in the presence (or constructive presence) of the court,
the contempt is classified as direct contempt, while contemptuous conduct that did not occur in
the presence of the court is classified as indirect contempt. Id. at 48.
¶ 40 The appropriate procedures to be used in a contempt proceeding vary depending upon the
type of contempt involved. Id. at 43. Direct contempt, regardless of whether it is criminal or civil
in nature, may generally be dealt with in a summary fashion—without the formality of pleadings,
notice, or hearing—because the offending conduct was witnessed by the court itself. 2 Id. at 49.
On the other hand, a person charged with indirect criminal contempt is generally entitled to all of
the constitutional protections and procedural rights afforded to other criminal defendants,
including the right to an attorney, the right to a public hearing, the right to present evidence, the
right to confront and cross-examine witnesses, the right to be presumed innocent, the right not to
incriminate himself, and the right to be proven guilty beyond a reasonable doubt, along with
certain other rights. Id. at 58. Whereas, a person charged with indirect civil contempt is only
entitled to minimal due process, including the right to notice and an opportunity to be heard. Id.
at 52-53. In addition, as Kathleen correctly notes, a civil contempt order must be in writing and
2
A different rule may apply where the contemptuous conduct occurred in the constructive
presence of the court. See Betts, 200 Ill. App. 3d at 49.
18
must specify what the offending party is required to do to purge herself of the contempt.
Pancotto v. Mayes, 304 Ill. App. 3d 108, 112 (1999).
¶ 41 Having reviewed the contempt proceedings in the present case, we find that the procedure
followed in the trial court did not comply with the procedures required under the law. The instant
case involved indirect contempt because the alleged contemptuous conduct—the failure to file an
accounting as ordered by the court—did not take place in the court’s presence. See Betts, 200 Ill.
App. 3d at 48. It cannot be clearly determined from the proceedings, however, whether the
contempt was criminal or civil in nature. Some of the facts in this case indicate that the contempt
was civil in nature, such as the fact that (1) the contempt proceeding was initiated by the filing of
a petition for rule to show cause (see id. at 58 (stating that a petition for rule to show cause
should not be used for an indirect criminal contempt proceeding because the offending party in a
criminal contempt proceeding cannot be required to testify)), (2) the trial court referred at times
to Kathleen’s ability to purge herself of any possible contempt (see id. at 43 (stating that the
purpose of civil contempt is to coerce compliance)), and (3) during the contempt hearing, the
children’s attorney, as the person prosecuting the contempt, did not present any evidence and the
trial court called upon Kathleen’s attorney to present evidence as to why Kathleen should not be
held in contempt for failing to file the accounting (see id. at 58 (in a criminal contempt
proceeding, the offending party cannot be required to testify)). Other facts, however, indicate
that the contempt in the present case was criminal in nature. Those facts include (1) the petition
for rule specifically sought to “punish” Kathleen for failing to file the accounting as ordered by
the court (see id. 43-44 (stating that the purpose of criminal contempt is to punish the offending
party for contumacious behavior)) and (2) the contempt sentencing order did not contain a purge
provision (see Pancotto, 304 Ill. App. 3d at 112). Adding to the confusion and uncertainty in this
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case was the fact that the petition for rule and the trial court’s orders regarding the contempt did
not specify whether the contempt involved was civil or criminal in nature.
¶ 42 In short, it appears from the record that neither the trial court nor the parties were certain
as to what type of contempt proceeding was involved in this case. The court and the parties,
therefore, could not follow the appropriate procedures required under the law for that type of
contempt proceeding. Based upon all of the facts of record, we must conclude that the contempt
proceeding in this case was flawed and that the finding of contempt against Kathleen must be
reversed. The reversal, however, is without prejudice, and the attorney for the children may go
forward with a new contempt proceeding based upon Kathleen’s failure to file the accounting.
Any costs and attorney fees awarded, however, must be strictly limited to those incurred as a
result of the filing and prosecution of the contempt petition. The record before us indicates that
the attorney fees awarded previously were not appropriately limited in that way.
¶ 43 IV. Whether the Trial Court Erred
in Removing Kathleen as the Trustee of the Trust
¶ 44 As a final issue, we note that the amended notice of appeal that Kathleen filed in the trial
court indicated that in addition to the issues discussed above, Kathleen was also challenging the
trial court’s order removing her as the trustee of the trust. Kathleen has made no argument,
however, as to that issue in either her initial brief on appeal or in her reply brief. That issue,
therefore, is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (stating that points not
argued in an appellant’s initial brief are forfeited and shall not be raised in the appellant’s reply
brief, oral argument, or in a petition for rehearing); People v. Hood, 210 Ill. App. 3d 743, 746
(1991) (recognizing the well-established rule that mere contentions, without argument or citation
of authority, do not merit consideration on appeal). Accordingly, we affirm the trial court’s order
removing Kathleen as the trustee of the trust.
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¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we affirm the orders of the circuit court of Kankakee County
requiring Kathleen to file an accounting of the trust; directing Jennifer, as the executor of the
estate, to transfer $40,000 from the estate directly to two of the beneficiaries, rather than to the
trust; and removing Kathleen as the trustee of the trust. In addition, we reverse the circuit court’s
contempt order, vacate the contempt sanction imposed, and remand for further proceedings.
¶ 47 Affirmed in part, reversed in part, and vacated in part; cause remanded.
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