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No. 2--03--0196

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Petitioner, Monica L. Blankshain, appeals the trial court's order dismissing her amendedpetition for rule to show cause against appellee, Wachovia Securities Inc., f/k/a First Union SecuritiesInc. We affirm.

In December 1999, Monica petitioned for a dissolution of her marriage to respondent, RobertD. Blankshain. The trial court entered an agreed temporary order under section 501(a)(2)(i) of theIllinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501(a)(2)(i) (West 1998)), enjoiningMonica and Robert from removing money from certain accounts, including Robert's accounts withappellee. The order further stated, "[u]pon notice of this order [appellee] shall cease all activity onthese accounts. This includes but is not limited to purchase, sales, deposits or withdrawals by anyparty."

In February 2002, Monica filed a petition for rule to show cause against Robert and appelleefor violating the injunction. Monica alleged that appellee received a copy of the injunction order inJanuary 2000. She further alleged that in October 2000, Robert transferred the funds from hisindividual retirement account (IRA) with appellee to a new account with GunnAllen Financial beforedissipating most of the money. Monica alleged that appellee had acted "in active concert and/orparticipation" with Robert to wrongfully transfer the funds. See 735 ILCS 5/11--101 (West 2002)(injunction orders binding upon persons in active concert or participation with parties to the action). Monica sought, among other things, the return of the value of the transferred account and theincarceration of Robert and the employee of appellee responsible for the transfer. Appellee movedto dismiss the petition under section 2--615 of the Code of Civil Procedure (735 ILCS 5/2--615(West 2002)).

In April 2002, the trial court entered an agreed dissolution judgment between Monica andRobert. Monica received the funds in all the accounts she held with appellee, as well as the fundsremaining in Robert's GunnAllen account. As part of the judgment, Monica agreed to withdraw thepetition for rule to show cause against Robert and discharge him from any liability relating to thetransferred funds. The judgment included the statement that Monica "reserved to right to pursuerepayment" of the funds from appellee.

In July 2002, the trial court granted appellee's motion to dismiss Monica's petition for rule toshow cause. The trial court ruled that Monica had not alleged sufficient facts to hold appelleeresponsible on the issue of active concert or participation. Monica filed an amended petition in whichshe again requested that appellee be ordered to return the transferred funds, though Monica no longersought the incarceration of appellee's employee. Appellee moved to dismiss the amended petitionunder section 2--615. After a hearing, the trial court granted appellee's motion. It ruled that theinjunction order could not be enforced because it had been terminated by the final dissolutionjudgment, and that compensatory damages could not be awarded in an indirect civil contemptproceeding. Monica timely appealed.

On appeal, Monica argues that the trial court erred by granting appellee's motion to dismissher amended petition for rule to show cause. When determining whether a cause of action is statedfor purposes of a section 2--615 motion to dismiss, the court must view the allegations in the lightmost favorable to the plaintiff and accept as true all well-pleaded facts and reasonable inferencesderived from those facts. Oliveira v. Amoco Oil Co., 201 Ill. 2d 134, 147 (2002). We review denovo an order granting a section 2--615 motion to dismiss. Oliveira, 201 Ill. 2d at147-48.

We first examine what type of contempt proceeding took place. Contempt can be eitherdirect or indirect and either criminal or civil. Direct contempt arises from conduct that occurred inthe judge's presence, whereas indirect contempt arises from conduct that occurred outside of thejudge's presence. In re Marriage of Ruchala, 208 Ill. App. 3d 971, 977 (1991). Here, the allegedcontempt was indirect because the fund transfer took place outside of the trial judge's presence. Toobtain a finding of indirect criminal contempt, the party bringing the action must notify the allegedcontemnor of the criminal nature of the proceedings by labeling the pleading as a petition foradjudication of criminal contempt. In re Marriage of Morse, 240 Ill. App. 3d 296, 304 (1993). Monica's petition for rule to show cause contained no such designation. Therefore, we agree withthe trial court that the proceeding was for indirect civil contempt.

A civil contempt proceeding seeks to coerce the contemnor to comply with a court order, andunlike a criminal contempt proceeding, its goal is not punishment. Pancotto v. Mayes, 304 Ill. App.3d 108, 111 (1999). In this case, the temporary injunction order that Monica sought to enforceterminated upon the entry of the dissolution judgment (see 750 ILCS 5/501(d)(3) (West 2002)), so appellee could not have been forced to comply with the order. See In re Marriage of Ignatius, 338Ill. App. 3d 652, 660-61 (2003). Moreover, compensatory damages may not be awarded in a civilcontempt proceeding. Keuper v. Beechen, Dill & Sperling Builders, Inc., 301 Ill. App. 3d 667, 669-70 (1998). In Keuper, this court stated:

"In Illinois, it is well established that civil contempt is an affront to the authority of the court and not a private remedy, that any fine imposed pursuant to the contempt is payableto the public treasury and not a plaintiff, and that a plaintiff may not recover compensatorydamages in a civil contempt proceeding. [Citations.] Because a sanction in a civil contemptproceeding is strictly coercive, the court is without the authority to compensate an aggrievedparty for its damages." Keuper, 301 Ill. App. 3d at 669-70.

Monica maintains that she sought "redress and remedy," rather than compensatory damages,by requesting that appellee "put back the money from where it came." However, according toMonica's allegations, the funds were transferred to an account that Robert held with a differentcompany, and he subsequently spent most of the money. Appellee was therefore not capable ofreturning the funds because it did not have possession or control of them. We conclude that inseeking to have appellee use its own money to fund the IRA account at its previous level, Monicasought compensatory relief unavailable in a civil contempt proceeding. Accordingly, the trial courtdid not err in granting appellee's motion to dismiss.

For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

BYRNE and KAPALA, JJ., concur.