                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                            Wade v. Wade, 2012 IL App (1st) 111203




Appellate Court            D.T. WADE, Petitioner-Appellee, v. S.L. WADE, Respondent-Appellant.
Caption


District & No.             First District, Sixth Division
                           Docket No. 1-11-1203


Filed                      March 9, 2012


Held                       On appeal from an order dissolving an agreed preliminary injunction
(Note: This syllabus       entered in proceedings to dissolve the parties’ marriage, the order was
constitutes no part of     reversed and the cause was remanded for reinstatement and proceedings
the opinion of the court   to return the parties to the status quo ante regarding the marital estate and
but has been prepared      to allow respondent a full evidentiary hearing on her need to preserve the
by the Reporter of         marital estate pending the distribution of the parties’ assets.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-D-11714; the
Review                     Hon. Fe Fernandez, Judge, presiding.


Judgment                   Reversed and remanded with instructions.
Counsel on                 Michael A. Haber, Lauren Bernay, and Mary Katherine Danna, all of
Appeal                     Kalcheim Haber, LLP, of Chicago, for appellant.

                           James B. Pritikin, Sylvia A. Sotiras, and Michael D. Sevin, all of Nadler,
                           Pritikin & Mirabelli, LLC, and Paul J. Bargiel, of Paul J. Bargiel, P.C.,
                           both of Chicago, for appellee.

                           Lester L. Barclay, of Barclay, Dixon & Smith, P.C., of Chicago, for child
                           representative appellee.


Panel                      JUSTICE PALMER delivered the judgment of the court, with opinion.
                           Presiding Justice R. Gordon and Justice Garcia concurred in the judgment
                           and opinion.



                                             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.
¶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


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     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.


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¶ 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 reversed where the court abuses
       its discretion. Rochester Buckhart Action Group v. Young, 379 Ill. App. 3d 1030, 1034
       (2008). A trial court abuses its discretion where no reasonable person would agree with its
       position. In re Marriage of Sanfratello, 393 Ill. App. 3d 641, 646 (2009) (citing Schwartz v.
       Cortelloni, 177 Ill. 2d 166, 176 (1997)).
¶ 14        A party seeking a preliminary injunction must establish: (1) a clear and ascertainable
       right in need of protection; (2) irreparable harm without relief; (3) no other adequate remedy
       at law; and (4) a substantial likelihood of success on the merits of the case. In re Marriage
       of Winter, 387 Ill. App. 3d 21, 27-28 (2008) (citing In re Marriage of Hartney, 355 Ill. App.
       3d 1088, 1089 (2005)). Where a party to a divorce requests an order preserving the status quo
       between the parties and protecting property that would be dissipated, injunctive relief may

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       be granted even if the movant’s ultimate success on the merits is in serious doubt. In re
       Marriage of Schmitt, 321 Ill. App. 3d 360, 372 (2001) (citing In re Marriage of Grauer, 133
       Ill. App. 3d 1019, 1025 (1985)).
¶ 15        Here, we believe that the trial court abused its discretion by retroactively vacating the
       API. Some remarks throughout the evidentiary hearings to the contrary, it appears that the
       trial court ultimately determined it intended to vacate the agreed injunctive order on February
       26, 2010, and then conduct a hearing to determine what type of order should be entered in
       its place. This is despite the fact that neither the written order entered on that date nor the
       court’s remarks on the record support this conclusion. Rather, the record shows that the court
       denied count I of the motion to vacate and began an evidentiary hearing on the request to
       modify the API.
¶ 16        Ultimately, the court appears to rely on an understanding that both parties agreed that the
       current order was no longer viable. However, it is patently clear that S.L. never agreed to a
       vacatur of the agreed order, only to a modification. In fact, the trial court clearly stated at the
       February 26, 2010, hearing that the parties had agreed to modify the API and were to present
       evidence on the question of what these modifications should be:
                “However, Count 2, I think both parties have filed pleadings agreeing to
            modify–asking to modify. It was a preliminary injunction. It’s definitely not a final order.
            The parties agree that it could be modified and they all signed off on it. And, in fact, I
            think both of them seemed to think that it should be modified. There certainly seem to
            be some changes in circumstance, and I think [there] seems to be some basic problems
            with the original order in terms of actually applying to their unusual and particular
            circumstances. So I am going to allow the motion to modify based on–well, actually
            based on whatever each one of them wants to tell me what they should do as far as
            being–having the vacate modified, okay.”
¶ 17        The record shows S.L. strongly objected to a dissolution of the restraining provisions
       with regard to the marital assets and the escrow of D.T.’s salary. Therefore, as this was not
       done by way of an agreement, the injunctive aspects of the order could not have been vacated
       without an appropriate basis. The trial court made no findings on the record in this regard
       other than to state in conclusory terms that the order was no longer functioning for either one
       of the parties. See Kraft v. Solon, 32 Ill. App. 3d 557, 561 (1975) (while a trial court
       possesses the inherent power to dissolve a preliminary injunction, “[t]here must be [a]
       sufficient basis in the record to support the action taken by the court”). Specifically, we are
       troubled that the order dissolving the injunction made no provisions for the disposition of the
       escrowed assets or for the escrow of marital assets going forward, at least until the date of
       the dissolution of marriage. The effect of the court’s order was to vitiate the provision that
       preserved the marital assets and the payment of expenses, leaving the estate unprotected. See
       Hartney, 355 Ill. App. 3d at 1090 (recognizing the need to protect the status quo of financial
       assets in marital estates during the pendency of divorce proceedings).
¶ 18        Further, by retroactively vacating the API in the middle of the evidentiary hearing, the
       court denied S.L. the opportunity to present evidence to show why the protection offered by
       the API should not be dissolved. Specifically, S.L. alleged that the injunctive restraints


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       should remain in place with regard to the parties’ marital assets because she had evidence
       showing D.T. had been rapidly dissipating their marital assets prior to the entry of the API
       and she lacked an adequate remedy at law. See Hartney, 355 Ill. App. 3d at 1090-91; In re
       Marriage of Schmitt, 321 Ill. App. 3d 360, 371-72 (2001); see also Grauer, 133 Ill. App. 3d
       at 1024-25. S.L. was entitled to present evidence to support her claims of the necessity of an
       injunction but was denied the opportunity to do so. See Hartney, 355 Ill. App. 3d at 1090-91
       (trial court erred in dismissing wife’s petition for a preliminary injunction without an
       evidentiary hearing).
¶ 19        Finally, there is also no support in the record for the retroactive date of February 26,
       2010, other than that it was the date the trial court began hearings on D.T.’s second motion
       to vacate. The trial court did not take into account that the marital dissolution was completed
       at a later date. As a result, the effective date of the order vacating the API was a full five
       months prior to the date of the dissolution of marriage. Arguably, during that time D.T.’s
       substantial salary and endorsement income were still marital assets, subject to division.
       Should the trial court’s order vacating the API stand, those assets would not be protected by
       an injunctive order.
¶ 20        For the reasons stated above, the court’s March 30, 2011, order dissolving the API is
       reversed and the cause is remanded with directions to reinstate the API. We order the trial
       court to take the steps necessary to return the parties to the status quo ante with regard to the
       marital estate and to allow S.L. the benefit of a full evidentiary hearing on her need to
       preserve the marital estate during the pendency of the remaining proceedings.

¶ 21       Reversed and remanded with instructions.




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