Madison - St. Clair Record

Wednesday, August 21, 2019

Fifth District reverses Mengarelli in divorce case involving court reporter and disbarred attorney

By Record News | Apr 11, 2016


MOUNT VERNON – Madison County associate judge Martin Mengarelli failed to listen to a husband in a divorce before granting his wife full authority to sell their home, Fifth District appellate judges ruled in March.

They reversed a preliminary injunction that Mengarelli granted to Madison County court reporter Linda Forbes last year.

They found that he signed it without a lawyer present for husband Robert Forbes, and that he failed to finish a hearing on a motion to vacate it.

Robert Forbes had been a licensed attorney until he was disbarred on misconduct charges in November 2014.

“While petitioner was afforded the opportunity to present witnesses, the record before us fails to show respondent was given the same opportunity,” Justice Richard Goldenhersh wrote.

Goldenhersh wrote that a full and adequate hearing must be conducted prior to granting a preliminary injunction.

“The record before us indicates that requirement failed to be completed,” he wrote.

Linda Forbes petitioned for dissolution of her marriage on Feb. 5, 2015.

She and Robert agreed to sell a commercial building at 305 State Street in Alton for $105,000, and Mengarelli approved the agreement at a hearing on Feb. 25.

He ruled they could pay off the mortgage and the real estate taxes, and apply the rest to the mortgage and taxes on their home at 10 Greystone in Edwardsville.

Both lawyers at the hearing, Jennifer Shaw of Edwardsville for Linda and Andrew Velloff of Alton for Robert, would later withdraw from the proceedings.

On July 15, Mengarelli ordered Linda and Robert to sign a listing agreement for 10 Greystone with realtor Kathy Malawy.

Linda petitioned for a temporary restraining order on July 27, and Mengarelli convened a hearing that day.

He wrote by hand, “Court has a representative of Rob Forbes’ counsel office,” with an illegible name, “available by telephone as attorney Velloff is on vacation.”

Mengarelli granted Linda sole decision making power over listing and selling the marital residence, “free of interference from Rob Forbes.”

In the order, he wrote that Linda might be sole signatory on any necessary documents and indicated that Robert had to leave the house for showings on an hour’s notice.

Mengarelli declined to throw Robert out but warned that further interference might bring that result.

He set a hearing on a permanent injunction for Aug. 5.

Robert’s other lawyer, David Fahrenkamp of Edwardsville, moved to vacate the injunction on Aug. 4.

Mengarelli began the hearing by asking Linda’s lawyer, Barbara Sherer of Edwardsville, to go first.

Fahrenkamp asked to take up Robert’s motion first.

Mengarelli said, “No, we can address that later.”

As Sherer began her argument, Fahrenkamp objected to counsel testifying.

Mengarelli overruled him and told Sherer, “Go ahead. Just make it short. I know a lot of this stuff.”

Sherer said, “All we need is to get this house sold.”

She said Robert alleged that he wanted to work on the house before listing it.

“Now it’s listed by Sharon Joiner because Kathy Malawy just doesn’t want to be involved any more,” Sherer said.

She said both realtors recommended listing it at $525,000.

“If he wants to participate in making the decisions, then clean up your portion of the house and get this house listed for sale,” she said.

Fahrenkamp said he knew no other lawyer who would file something and get a hearing that day knowing the other lawyer was not available.

“I am suggesting it was ex parte,” Fahrenkamp said.

Ex parte communication, between a judge and a lawyer in the absence of the opposing lawyer, violates ethical rules.

“My client, before he had a chance to have a check list, was told that it was going to be sold as is,” Fahrenkamp said. “Not asked, told.”

“This is a house in a neighborhood where a little bit of money can make a big difference.

“My client didn’t have a chance for a hearing that day, and to merely say we have got to get this thing sold isn’t relief. It’s not emergency relief.”

Sherer asked to respond and Mengarelli said, “No, you can put on evidence.”

“I got hearings at three thirty, so we’re going to have to move this along as quickly as you can,” Mengarelli said.

Sherer put Malawy on the stand, and asked when Linda signed the agreement.

Malawy hesitated. Mengarelli said, “I don’t care about that. Let’s just move along.”

Sherer asked if they would get their money back from repairs.

Malawy said, “I think that the money that you put into it was exactly what you’re going to get back into the price.”

Sherer asked why she dropped the listing on July 27, and she said Rob told her he wanted to fire her and cancel the listing.

Malawy said, “I just thought, I’m going to run into this constantly and I’m not here to be part of any divorce.”

Fahrenkamp asked her how many days Robert had before she started bringing people by, and she said four.

Fahrenkamp: “You’re not surprised that all those things on the two page punch list weren’t done in a span of a few days, were you?”

Malawy: “No, it was no requirement ever.”

Fahrenkamp: “I’m not asking if it was a requirement.”

Malawy: “Not a surprise.”

Fahrenkamp: “Is there something funny?”

Malawy: “No.”

Fahrenkamp: “You’re responding to counsel so I didn’t know.”

Sherer: “Objection, she’s not smiling.”

Mengarelli: “Come on, let’s move this along.”

Fahrenkamp asked if Robert shouldn’t be given the opportunity to get something done and sell for a higher price.

Malawy: “If he would have given me the chance to talk to him in person and discuss all this. My whole thing to him in conversation was that -”

Fahrenkamp: “Excuse me.”

Mengarelli: “Let her answer the question.”

Malawy: “Anything that he would do, if it was five thousand, ten thousand, he wouldn’t get – he would get maybe that much out of it.”

Fahrenkamp asked if it was unreasonable to want time in order to sell for a higher price.

Malawy: “It’s not unreasonable. All I had was a signed listing agreement.”

Fahrenkamp: “He told you that he wanted time to fix it, didn’t he?”

She hesitated and Mengarelli said, “Okay, we have gone over this enough. Let’s move on to something else.”

Fahrenkamp asked Malawy if Robert agreed to the list, and she said yes.

Fahrenkamp: “It would be unfair to judge him as being uncooperative if on day two after getting the list it’s not done? Wouldn’t you agree, yes, no?”

Malawy: “If he would have conveyed that that was the reason for stopping the showings on Sunday, and told me two days prior to that, it would be a whole different thing.”

Fahrenkamp: “I didn’t ask that.”

Mengarelli: “Mr. Fahrenkamp, will you please move this on? I have heard enough about this. You have made your point.”

Sherer asked Malawy if the home was in broom swept condition when she saw it.

Malawy : “Upstairs was.”

Mengarelli: “Okay, we went through that already. We don’t have to rehash it.”

Sherer asked Malawy what her commission was, and she said five percent.

Sherer: “Five percent of -”

Mengarelli: “I don’t really need to hear any more of this unless there’s something else you want to inquire about.”

Fahrenkamp asked Malawy, “What’s your responsibility if he says, I think it’s an unfair price? I mean, you’ve been doing it for 15 years.”

Mengarelli: “You know, we have got enough of this.”

Fahrenkamp: “That’s my final question on it, your honor. Can she answer that one though, or not?”

Mengarelli: “No, I don’t need to hear the answer to that.”

She answered anyway, saying, “The responsibility is to educate him on why I did -”

Mengarelli: “I know where you’re going with it, Mr. Fahrenkamp. I understand. I understand.”

Malawy: “I had the education to give him. I would have -”

Mengarelli: “Ma’am, you can step down.”

Sherer said she would see if her next witness was there.

Mengarelli said okay and declared recess, but the hearing never resumed.

He denied Robert’s motion on Sept. 1, writing that he heard “partial testimony.”

Those two words sounded an alarm at the Fifth District.

“Respondent must be given the opportunity to present witnesses and additional evidence,” Goldenhersh wrote.

“We encourage both parties to work toward an amicable resolution of not only the sale of the marital residence, but all other remaining issues,” he wrote.

Presiding Justice Judy Cates and Justice Thomas Welch concurred.

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