In re Marriage of Yazeji , 2021 IL App (3d) 190430-U ( 2021 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190430-UOrder filed June 23, 2021
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
In re MARRIAGE OF ) Appeal from the Circuit Court
MAY S. YAZEJI, ) of the 14th Judicial Circuit,
) Rock Island County, Illinois.
Petitioner-Appellee, )
) Appeal No. 3-19-0430
and ) Circuit No. 13-D-481
)
BASSAM A. ASSAF, ) The Honorable
) Peter W. Church,
Respondent-Appellant. ) Judge, presiding.
_____________________________________________________________________________
JUSTICE DAUGHERITY delivered the judgment of the court.
Justice Holdridge concurred in the judgment.
Justice Holdridge also specially concurred.
Justice Wright specially concurred.
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ORDER
¶1 Held: In an appeal in a dissolution of marriage case, the appellate court found that the
trial court erred by imposing Supreme Court Rule 137 sanctions on the former
husband for filing a motion to stay enforcement of the parenting plan after the
husband had already filed a notice of appeal. The appellate court, therefore,
reversed the trial court’s imposition of sanctions and remanded the case with
directions to the trial court to enter an order requiring that the sanctions amount be
refunded to the former husband, if the sanctions amount had already been paid.
¶2 In a dissolution of marriage proceeding, respondent, Bassam A. Assaf, filed notices of
appeal to challenge the trial court’s dissolution judgment and parenting plan. After doing so,
Assaf later filed in the trial court a motion to stay the enforcement of the parenting plan while his
appeals were pending, pursuant to Illinois Supreme Court Rule 305(b) (eff. July 1, 2017).
Petitioner, May S. Yazeji, filed a motion to strike and dismiss Assaf’s request for a stay, and
sought to have Supreme Court Rule 137 (eff. Jan. 1, 2018) sanctions imposed against Assaf for
filing a “meritless” motion. Following a hearing, the trial court found that it did not have
jurisdiction to rule upon Assaf’s stay request because Assaf had already filed a notice of appeal.
The trial court, therefore, granted Yazeji’s motion to strike and dismiss and imposed sanctions on
Assaf of nearly $5000 for the attorney fees that Yazeji had incurred defending against the stay
request. Assaf appeals. We reverse the trial court’s imposition of sanctions and remand this case
with directions to the trial court to enter an order requiring that the sanctions amount be refunded
to Assaf, if the sanctions amount has already been paid.
¶3 I. BACKGROUND
¶4 The parties, Yazeji and Assaf, were both medical doctors. They were married in 2001
and had four children together over the next several years. In October 2013, Yazeji filed a
petition for dissolution of the parties’ marriage. More than five years later, in March 2019, the
trial court entered a judgment of dissolution, an opinion and order explaining its decision at
length, and a detailed parenting plan. In the parenting plan, the trial court granted all of the
significant decision making authority to Yazeji. The trial court also granted to Yazeji the
majority of the parenting time, which had previously been split equally between the parties.
2
¶5 In April 2019, Assaf filed an initial notice of appeal to challenge the dissolution judgment
and the parenting plan. A second notice of appeal was filed in June 2019. 1 Three days after he
filed the second notice of appeal, Assaf filed a motion to stay in the trial court, pursuant to
Supreme Court Rule 305(b), seeking to stay the enforcement of the parenting plan and to restore
the prior equal parenting time allocation while his appeals were pending. In the motion, Assaf
alleged that the parties’ children had “deteriorated” after the parenting plan had been
implemented.
¶6 Yazeji filed a motion to strike and dismiss (motion to strike) Assaf’s motion to stay. In
her motion to strike, Yazeji asserted that the trial court lacked jurisdiction to rule upon Assaf’s
stay request because Assaf’s filing of the second notice of appeal divested the trial court of
jurisdiction and, alternatively, that Assaf’s stay request lacked merit. Yazeji asked the trial court
to dismiss or deny Assaf’s stay request and to award Yazeji the attorney fees she had incurred in
defending against the request.
¶7 Assaf filed a response and opposed the motion to strike. In the response, Assaf argued
that his request to stay was a collateral matter that the trial court retained jurisdiction to rule
upon, despite Assaf’s filing of a notice of appeal.
1
The record in this appeal does not clearly indicate why Assaf filed two notices of appeal in the
trial court. Therefore, we have taken judicial notice of the record in respondent’s other appeal
(respondent’s appeal of the dissolution judgment and parenting plan) to the extent necessary to answer
that question. See People v. Jimerson, 404 Ill. App. 3d 621, 634 (2010) (indicating that the reviewing
court may take judicial notice of public records and other judicial proceedings and taking judicial notice
of the record in a codefendant’s appeal where the defendant and codefendant had received severed, but
simultaneous, jury trials). The record in the other appeal shows that after respondent filed his initial
notice of appeal, the parties both filed motions in the trial court asking the trial court to reconsider
portions of its judgment. Respondent, thereafter, filed a motion in this court in the other appeal, pursuant
to Illinois Supreme Court Rule 303(a)(2) (eff. July 1, 2017), to hold the other appeal in abeyance until the
motions to reconsider were resolved. This court granted that motion. After the motions to reconsider
were resolved in the trial court, respondent filed his second notice of appeal, and the abeyance was lifted.
3
¶8 In July 2019, a hearing was held on Assaf’s stay request. After listening to the arguments
of the attorneys, the trial court found that it had no jurisdiction to rule upon Assaf’s stay request
because the trial court had been divested of jurisdiction when Assaf filed his second notice of
appeal. The trial court, therefore, denied the stay request and imposed Rule 137 sanctions upon
Assaf for filing a motion that was “frivolous and patently without merit.” In so doing, the trial
court commented that it would be obvious to a reasonable practitioner that the trial court lacked
jurisdiction to rule upon Assaf’s stay request. After Yazeji’s attorneys submitted itemized
statements of their fees related to the stay request, which totaled nearly $5000, the trial court
ordered Assaf to pay that amount as a sanction within 21 days. Assaf appealed.
¶9 II. ANALYSIS
¶ 10 On appeal, Assaf raises two issues. First, Assaf argues that the trial court erred in
imposing Rule 137 sanctions upon him. Assaf asserts that sanctions should not have been
imposed because his motion to stay was not frivolous since the trial court either had jurisdiction
to rule upon Assaf’s motion to stay or, at the very least, Assaf had a good faith basis to believe
that the trial court had jurisdiction. Second, Assaf argues, in the alternative, that even if
sanctions were properly imposed, the amount of sanctions that the trial court ordered in this case
was excessive. For those reasons, Assaf asks that we reverse or vacate the trial court’s
imposition of sanctions and that we order the amount of sanctions that Assaf paid be refunded to
Assaf. Although not stated, we presume that in the alternative, Assaf would have us remand this
case for a new determination as to the appropriate sanctions amount.
¶ 11 Yazeji argues that the trial court’s ruling was proper and should be upheld. Yazeji asserts
that the trial court correctly found that it had been divested of jurisdiction when Assaf filed his
notice of appeal and that it lacked jurisdiction to rule upon Assaf’s motion to stay. Yazeji asserts
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further that the sanctions imposed in this case were not excessive. For those reasons, Yazeji asks
that we affirm the trial court’s judgment.
¶ 12 Supreme Court Rule 137's purpose is to prevent the filing of false and frivolous lawsuits.
Peterson v. Randhava, 313 Ill. App. 3d 1, 7 (2000). Rule 137 authorizes the trial court to impose
sanctions against a party or attorney who files a motion or pleading that does not have a well-
grounded factual basis; that is not supported by existing law or a good-faith argument for the
extension, modification, or reversal of existing law; or that is brought for an improper purpose.
Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018); Peterson, 313 Ill. App. 3d at 6-7. In determining whether
to impose Rule 137 sanctions, the trial court will apply an objective standard and will consider
what was reasonable under the circumstances as they existed at the time the pleading or motion
was filed. Whitmer v. Munson, 335 Ill. App. 3d 501, 514 (2002). The rule is not intended to
penalize litigants and their attorneys merely because they were zealous but unsuccessful in
pursuing an action. Peterson, 313 Ill. App. 3d at 7. Because the rule is penal in nature, it must
be strictly construed. Id.¶ 13 A trial court's ruling on a request for Rule 137 sanctions will not be reversed on appeal,
absent an abuse of discretion. Id. at 14. 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). More specifically, when reviewing a trial court’s decision on a motion for sanctions, the
reviewing court should consider whether the trial court made an informed decision, whether the
trial court’s ruling was based on valid reasoning, and whether the trial court’s ruling followed
logically from the facts. Peterson, 313 Ill. App. 3d at 14.
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¶ 14 The trial court’s sanction order in the instant case was based upon its finding that it
lacked jurisdiction to rule upon Assaf’s motion to stay after Assaf filed his second notice of
appeal. A notice of appeal is a procedural device that when timely filed with the trial court, vests
jurisdiction in the appellate court to permit review of the trial court’s judgment. General Motors
Corp. v. Pappas, 242 Ill. 2d 163, 173 (2011). Once a notice of appeal is filed, the jurisdiction of
the appellate court attaches instanter, and the cause of action is beyond the trial court’s
jurisdiction. Id. The trial court, however, retains jurisdiction after the notice of appeal is filed to
determine matters that are collateral or incidental to the judgment. Id. at 173-74. The question
here is whether a motion to stay is such a matter.
¶ 15 Supreme Court Rule 305(b), which allows for the filing of the stay request in the instant
case, does not state whether a motion to stay is collateral or incidental to the judgment or
whether the trial court may rule upon such a motion after an appeal has been filed. See Ill. S. Ct.
R. 305(b) (eff. July 1, 2017). Our supreme court, however, has previously indicated that a stay
of judgment is collateral to the judgment and does not alter the issues on appeal. Pappas, 242 Ill.
2d at 174; Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 526 (2001). We must conclude,
therefore, that a trial court may rule upon a motion to stay after a notice of appeal has been filed.
See Pappas, 242 Ill. 2d at 173-74; Steinbrecher, 197 Ill. 2d at 526.
¶ 16 In the present case, Assaf’s stay request was collateral to the trial court’s dissolution
judgment and parenting plan. See Pappas, 242 Ill. 2d at 174; Steinbrecher, 197 Ill. 2d at 526.
The trial court, therefore, retained jurisdiction to rule upon Assaf’s motion to stay and was not
divested of jurisdiction to do so by Assaf’s filing of the second notice of appeal. See Pappas,
242 Ill. 2d at 173-74; Steinbrecher, 197 Ill. 2d at 526. The trial court’s ruling to the contrary was
legally incorrect. See Pappas, 242 Ill. 2d at 173-74; Steinbrecher, 197 Ill. 2d at 526. Assaf’s
6
motion to stay was not false or frivolous and could not serve as a basis for Rule 137 sanctions.
See Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018); Peterson, 313 Ill. App. 3d at 7. Thus, the trial court
abused its discretion when it imposed Rule 137 sanctions upon Assaf. See Blum, 235 Ill. 2d at
36; Leona W., 228 Ill. 2d at 460.
¶ 17 III. CONCLUSION
¶ 18 For the foregoing reasons, we reverse the trial court’s imposition of sanctions and remand
this case with directions to the trial court to enter an order requiring that the sanctions amount be
refunded to Assaf, if the sanctions amount has already been paid.
¶ 19 Reversed and remanded with directions.
¶ 20 JUSTICE WRIGHT specially concurring:
¶ 21 I specially concur on separate grounds. At the outset, it is understandable that the trial
court found Assaf’s notice of appeal divested the trial court of jurisdiction. Due to
unconventional timing, Assaf’s first notice of appeal created a jurisdictional issue that most trial
courts, and practitioners appearing regularly before the trial court, never encounter. Nonetheless,
I agree the trial court’s order, striking Assaf’s motion to stay and imposing Rule 137 sanctions,
must be reversed as a matter of law.
¶ 22 Here, the confusing procedural posture of this appeal is the direct consequence of errors
that are not attributable to the trial court. First, Assaf’s counsel filed a premature notice of
appeal. Second, Assaf’s counsel compounded that error by failing to recognize the notice of
appeal was premature and ineffective. Consequently, Assaf’s counsel did not discover the case
law, cited below, that would have allowed the trial court to swiftly resolve the merits of the
motion to strike.
7
¶ 23 Importantly, this court has held that when a party files a notice of appeal before the
expiration of the 30-day deadline and then also files a timely postjudgment motion or claim, the
result is an undisputedly premature and initially ineffective notice of appeal. See In re Estate of
Hanley, 2013 IL App (3d) 110264, ¶ 43. Simply stated, an ineffective notice of appeal does not
divest the trial court of jurisdiction. See id.¶ 24 A strong argument could be made that Assaf’s purported motion to stay did not involve a
collateral matter but instead functioned as a postjudgment motion directed at core issues
pertaining to the judgment, such as the best interests of the children, pursuant to section 2-1203
of the Code of Civil Procedure, 735 ILCS 5/2-1203 (West 2018). A request for sanctions
constitutes a postjudgment claim for purposes of section 2-1203. See Hanley, 2013 IL App (3d)
110264, ¶ 43.
¶ 25 Regardless, whether we view Assaf’s motion to stay as a simple motion to stay, based on
collateral matters, or consider the motion to stay as a timely postjudgment motion, the outcome
is the same. Namely, under either scenario, the trial court was not divested of jurisdiction due to
an ineffective notice of appeal. See id.¶ 26 This separate decision should not be misconstrued as an indication of my view of the
merits of the motion to stay or the appropriateness, or lack thereof, of Rule 137 sanctions. I
would simply reverse and remand the matter to the trial court for further proceedings on the
pending motion to stay, unless the parties are able to reach an agreement on the motion to stay
and the propriety of sanctions following remand.
¶ 27 JUSTICE HOLDRIDGE, specially concurring:
¶ 28 I join the majority’s judgment. I agree with Justice Daugherity’s analysis and with
Justice Wright’s analysis, both of which yield the same result.
8