A divorce judgment is only as good as the paper it is written on without divorce judgment enforcement. Collecting child support or maintenance can be a difficult part of post-judgment divorce proceedings. Hopefully everyone complies, withholding orders are obeyed and money and assets are paid as they are supposed to be. When something goes wrong, the first step is typically a contempt petition.
A petition for adjudication of indirect civil contempt tries to coerce an obligor to make payments by threatening an indefinite period in jail if they do not comply. In addition, in divorce cases, if a court holds a party in contempt for their failure to comply with the court order the court will order that party to pay the other party’s reasonable attorney fees. This is the most common method of divorce judgment enforcement.
Sometimes, though, contempt proceedings just aren’t enough. Some obligors will spend or transfer assets or take other steps to prevent enforcement. Wage garnishments and non-wage garnishments are some tools your attorney has in such a case. However, in an appellate court opinion recently published, a trial court went much, much further and the appellate court affirmed the trial court’s ruling.
In In re Marriage of Padilla, the wife and the court found themselves faced with what appears to be an extremely obstinate and difficult obligor. The published opinion reflects a case that had been going on for at least six years and involved numerous appeals. Messy and litigious to say the least. The husband had filed bankruptcy during the case and the facts recited reflect criminal and non-criminal fraud and misrepresentation allegations. I conclude this case presented an extreme situation.
Sometimes extreme situations call for extreme remedies. In Padilla, the wife asked the trial court to appoint a receiver. The receiver would essentially step in and take over the husband’s financial life. The receiver in this case was ordered to take control of all current property of the husband as well as receive all income coming to the husband. The court ordered the sheriff to assist the receiver in taking control of all property and income. Essentially, the receiver was stepping into the husband’s place as it related to all financial issues at all.
There is nothing in the Illinois Marriage and Dissolution of Marriage Act that specifically provides for this type of relief. And in fact this is a very extreme form of relief. Of course, the husband appealed for several reasons. For the purposes of this post, though, I am only concentrating on the appointment of a receiver.
The appellate court held that the court has the authority to appoint a receiver is part of the court’s general equity powers. This means that there is no requirement that there be a statute specifically allowing a receiver and that any court can appoint a receiver if that court believes it needs to do so to achieve a just and equitable outcome in the case. The appellate court then considered whether, even if the court had the power to appoint a receiver, if it should have done so. The appellate court looked at the messy and litigious case, the husband’s history of fraud and deception, and all other relevant facts. The justices concluded that appointing a receiver was not an abuse of discretion.
Receivers or trustees are common on bankruptcy court. They are extremely rare in other instances. While the Padilla case puts another tool in the trial court’s tool box for trying to enforce its judgments, I do not think this will become common. Receivers are an extreme remedy and I think trial courts will be reluctant to appoint receivers often. But, where the conduct of the obligor is truly beyond the pale, this is a tool that should be considered to collect child support, maintenance, or property due to a client.
Michael Stetler, in addition to being a divorce attorney in McHenry County, Illinois, is also a registered Certified Public Account and has a background in finance and taxation. If you are going through a difficult post-judgment proceeding, contact us for a free consultation.