An attorney facing jail time for allegedly to pay child support obligations received an early holiday gift, as a state appeals panel said a prominent Cook County judge wrongly ordered him to jail without first determining he actually had the ability to pay $248,000, in a possible bid to make the man a "hostage" to force his father to pay the money for him.
On Dec. 20, a three-justice panel ruled Cook County Judge Regina Scannicchio had "abused" her discretion as a judge by ordering David Cerda to jail amid his divorce dispute with his ex-wife, Roseanne Tellez.
The decision was authored by Justice Leroy K. Martin. Justices Mary K. Rochford and Freddrenna M. Lyle concurred.
Illinois First District Appellate Court Justice Leroy K. Martin
| Illinoiscourts.gov
The decision was issued as an unpublished order under Supreme Court Rule 23. This limits its use as precedent, meaning others may not be able to cite it to fight similar attempts by other divorce courts to jail them over divorce-related money disputes.
According to court records, Tellez and Cerda entered divorce proceedings in 2010. Their marriage had produced three children, which now includes an adult son with severe disabilities.
According to court records, their son has Duchenne muscular dystrophy and requires a wheelchair for mobility.
Cerda, a lawyer, gained notoriety in recent years for bringing a lawsuit against the Chicago Cubs on behalf of the disabled son, accusing the Cubs of not offering enough seating which is accessible for people who rely on wheelchairs at their home stadium, Wrigley Field.
That lawsuit was ended in 2023, when the court ruled Cerda could not prevail on claims the team should pay for allegedly violating the Americans with Disabilities Act and make extensive renovations to the seating areas at Wrigley. The Cubs, however, agreed separately to make renovations to the stadium under a settlement with the Department of Justice announced in October 2024.
In the divorce proceedings, however, Tellez has repeatedly asserted Cerda has not lived up to court-ordered child support obligations through the years.
According to court records, the court determined Cerda owed $248,648.
During a hearing in September concerning the alleged failure to pay, Cerda testified that, though he is a lawyer, he "has no income or assets to pay" toward the amount owed. He testified has last received attorney fees in 2015.
He said he hoped to receive fees from his representation of his son in the action against the Cubs, and is representing a plaintiff alleging legal malpractice in a case in Kane County.
Otherwise, though, Cerda testified he had "exhausted his assets in 2021, moved in with his father, and is fully dependent on him for support. He reported that he has no personal bank accounts, no credit cards, and no other sources of income."
He further told the court he owes more than $400,000 in back federal and state income taxes and faces judgments against him on behalf of former lawyers, a landlord and creditors, amounting to "tens of thousands of dollars."
He further said he faces legal malpractice claims pending against him, which he said "impair his ability to get new clients."
According to court records, Cerda was previously found in contempt, but "purged the contempt" with payments of $5,000 each time. Cerda, however, said those payments were made by his father, not him.
Despite his assertions of financial lack, Scannicchio still ordered him to jail until he paid $248,000, which would "purge" his contempt.
In her ruling, Scannicchio said "the defense of poverty and misfortune" was insufficient, because she determined Cerda's financial difficulties were the result of Cerda's "choices," which allegedly included a failure to seek "other means of legal work to comply with the Court's orders."
The appellate panel described Scannicchio's ruling as a finding by the judge that Cerda "voluntarily created his inability to comply."
But the appeals court judges said Scannicchio went too far, too fast, ordering Cerda to jail without determining if his assertions concerning his financial abilities were true, regardless of whose fault they may have been.
They noted Scannicchio "implicitly and necessarily accepted (Cerda's) testimony and recognized that he has had no income for several years and, thus, was presently unable to pay."
Further, they noted Scannicchio instead relied "on the fact that payments were made when (Cerda) had been threatened with contempt on prior occasions," without fully acknowledging that those payments were made by Cerda's father.
"Payments made in the past by David's father are an inappropriate basis to believe that David can pay," the appellate justices said. "A person held in civil contempt must personally hold the keys to their cell."
Citing a separate decision, they added: "A contempt order may not use the contemnor as a 'hostage' to put pressure on third parties interested in his or her release from contempt."
The ruling comes as a rebuke to Scannicchio, who is the presiding judge overseeing the Cook County court's Domestic Relations Division.
Cook County's divorce court judges have come under criticism in recent years for jailing a number of ex-husbands, typically under accusations of contempt of court for failure to pay so-called "marital obligations."
Often, these "obligations" can include thousands of dollars to pay their ex-wives' attorneys, even when the men repeatedly claim they do not have the money the judges believe they do.
Men who have been subjected to such jailings, ostensibly for contempt of court, have described the practice as "debtors' prison," using the threat of jail to force them to often borrow large sums of money to pay the fees of lawyers hired to fight against them in court.
Cook County divorce court judges under Scannicchio's watch, for instance, have ordered River Forest developer Frank "Marty" Paris and another man, Steve Fanady, to be incarcerated in the Cook County Jail.
Paris was ordered to jail on three separate occasions in recent years. However, he appears to have reached a settlement with his ex-wife, relying heavily on financial assistance from family to end the repeated attempts by his ex-wife and her lawyers to persuade Judge Abbey Fishman Romanek to jail him to force him to pay hundreds of thousands of dollars.
Fanady, however, has remained in jail since 2022, as Judge Michael Forti continues to refuse to release him from custody until he hands over $10 million in stock to his ex-wife. That sustained jailing has continued even after a judge in a separate, but related lawsuit ruled Fanady's ex-wife had misled the divorce court into concluding Fanady possessed shares in CBOE Holdings common stock he did not actually possess and could not pay.
Fanady's lawyer, Laura Grochocki, told the Cook County Record she hoped the new appellate ruling in favor of Cerda "reflects a shift in Illinois courts - and in particular, Cook County judges in the domestic relations division - toward requiring a clear determination of an individual's ability to pay before incarceration for indirect civil contempt."
Grochocki acknowledged Fanady's case is "distinguishable" from Cerda's, on several points. Notably, while the decision in Tellez v Cerda centers on a child support dispute, Fanady's case deals with a "private property dispute" and Judge Forti's decision to modify the divorce decree to force Fanady to hand over assets Fanady said - and another court determined - he didn't have.
Grochocki further noted Fanady's "horrifying situation" also involves "grave constitutional concerns," as she noted the court has refused to allow Fanady to be released from jail on electronic monitoring pending appeal "despite long-standing Illinois precedent limiting civil contempt detentions to a maximum of six months without a finding of 'recalcitrance,'" which she said has continued to be missing in Fanady's case.
She said Fanady's case, as wellas Cook County divorce court judges' continued use of jail time to force payments from ex-husbands, "underscores the pressing and undeniable need for systemic reform to protect due process."
Following the ruling in the Cerda case, a judicial reform advocate who has tussled in court with Scannicchio for years also weighed in.
Attorney Edward "Coach" Weinhaus is the publisher of Judiciocracy, a group of pro-reform online publications generally critical of judges in Cook County and elsewhere. He also serves as executive director of Children of the Court, an organization which states its mission is to help make the court system more accessible and welcoming to adult children of those working through divorce and other family law proceedings.
Weinhaus has sued Scannicchio, most recently as a co-defendant in a lawsuit accusing the Illinois Judges Association of conspiring to thwart criticism of judges and use the court system to hold them to account. Weinhaus specifically alleged IJA member appellate justices had particularly rendered decisions designed to protect Scannicchio against Weinhaus' alleged attempts to redress allegedly improper actions Scannicchio took against Weinhaus amid Weinhaus' contentious divorce proceedings.
That suit remains pending on appeal at the U.S. Seventh Circuit Court of Appeal.
In response to the Tellez v Cerda decision, Weinhaus said:
“Judiciocracy’s publications involved international scholars to highlight this type of injustice, calling the head of the Division - Scannicchio - ‘an avid imprisoner.’ I sure hope that’s not true now that someone may finally be watching for shakedowns."
Weinhaus noted the decision was "unpublished," limiting its potential legal impact in the state.
"Illinoisans should hope the First District publishes the opinion to stop these travesties,” Weinhaus said.