In Re Marriage of Birt

510 N.E.2d 559, 157 Ill. App. 3d 363, 109 Ill. Dec. 691, 1987 Ill. App. LEXIS 2713
CourtAppellate Court of Illinois
DecidedJune 30, 1987
Docket2-86-0483
StatusPublished
Cited by19 cases

This text of 510 N.E.2d 559 (In Re Marriage of Birt) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Birt, 510 N.E.2d 559, 157 Ill. App. 3d 363, 109 Ill. Dec. 691, 1987 Ill. App. LEXIS 2713 (Ill. Ct. App. 1987).

Opinion

JUSTICE REINHARD

delivered the opinion of the court:

Sarah Ann Birt, respondent, appeals from a supplemental judgment entered by the circuit court of Du Page County disposing of the remaining issues subsequent to the entry of an order dissolving her marriage to Maurice W. Birt, petitioner.

Respondent raises numerous issues on appeal. The first issue raised, which we find to be dispositive of this appeal, is whether the trial court erred in denying her petition for change of venue. The other issues are whether the trial court erred in awarding the parties joint custody of their four children; whether the trial court erred in valuing petitioner’s business by allowing financial evidence and expert testimony which could not be tested due to petitioner’s noncompliance with discovery and by permitting testimony of non-current valuation by unqualified witnesses; whether the trial court erred in not considering petitioner’s medical degree or practice as a marital asset; whether the maintenance and child support ordered were inadequate; whether the trial court erred in concluding that respondent had dissipated marital assets; whether the trial court erred in quashing a subpoena for deposition of one of petitioner’s employees; whether the trial court erred in barring respondent and her counsel from discussing the case during trial; and whether the trial court erred in precluding petitioner from making an offer of proof regarding prior proceedings between the parties.

We set forth only the proceedings and facts necessary to our resolution of the case. Petitioner filed a petition for dissolution of marriage on December 21, 1984. On May 28, 1985, a judgment of dissolution of marriage was entered which reserved all issues other than grounds. As part of discovery, respondent subpoenaed Margaret Dunne and Nicki Melnick, among others, for depositions. On July 30, 1985, Margaret Dunne, through petitioner’s attorney, filed a motion to quash the subpoena with an attached affidavit. She stated that she was an occasional social friend of petitioner’s, but that she had no knowledge, information or documents pertaining to the proceeding and that the subpoena had been issued to her solely for purposes of harassment. Nicki Melnick, also through petitioner’s counsel, filed a motion for a protective order stating that her deposition had been taken in a prior dissolution proceeding which was dismissed upon respondent’s motion, and that she had no documents in her possession pertaining to the parties’ affairs. She requested that the portion of the subpoena commanding her to produce personal documents be quashed and that the scope of the discovery deposition be limited to the period subsequent to her prior deposition.

Although Judge S. Keith Lewis had been assigned to the case and had entered the previous orders in the case, in his absence Judge Robert A. Cox heard arguments on the motions July 30, 1985. Judge Cox granted Margaret Dunne’s motion to quash the subpoena and denied Nicki Melnick’s motion for a protective order, but ordered that respondent’s attorney could only inquire into matters not fully covered in the prior deposition.

. Trial was set for December 4, 1985, by Judge Lewis. Respondent filed a motion to reschedule the trial date and for an order compelling compliance with discovery. Because of an apparent reassignment of judges in the Eighteenth Judicial Circuit, the parties appeared before Judge Philip J. R. Equi on December 5, 1985. Judge Equi recused himself on that date, and the cause was transferred to Judge Cox. On December 10, 1985, respondent filed a petition for change of venue as a matter of right. The petition stated that the cause had been reassigned to Judge Cox and that respondent feared and reasonably believed that Judge Cox was prejudiced against her. She further stated that Judge Cox had not ruled on any substantial issues in the case and that she had not filed any previous petitions for change of venue.

A hearing was held on the petition. Petitioner argued that it was too late for respondent to assert a general claim of prejudice as she had appeared before Judge Cox previously and requested relief. The petition was denied and trial was set for January 29, 1986.

The parties were married in 1966 and four children were born of the marriage. Petitioner’s attorney, on two occasions, stated that custody was not an issue in the case and, during his closing argument, stated that the children should be in the custody of their mother.

It is unnecessary to set forth the testimony at trial in view of our decision on the change of venue issue. Following trial, a written judgment disposing of the remaining issues was entered on March 17, 1986. Among these, the trial court awarded the parties joint custody of the minor children.

Respondent first contends that her petition for change of venue was improperly denied, rendering all orders subsequent to the denial void. We agree. The right to a change of venue is absolute where a motion alleging prejudice of the judge is filed before trial or hearing and before the judge presiding in the case has made any substantial ruling. (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 1001(a)(2), (c); In re Marriage of Kozloff (1984), 101 Ill. 2d 526, 530, 463 N.E.2d 719.) The salutary principle is that one should not be compelled to plead his cause before a judge who is prejudiced, whether actually or only by suspicion, and the right is mandatory if made in apt time and from a single judge in a civil suit. (American State Bank v. County of Woodford (1977), 55 Ill. App. 3d 123, 128, 371 N.E.2d 232; see also In re Marriage of Zannis (1983), 114 Ill. App. 3d 1034, 1038, 449 N.E.2d 892.) "Venue provisions are to be liberally construed in order to effect rather than defeat a change of venue, particularly when prejudice of the judge is charged. Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill. 2d 247, 251, 311 N.E.2d 673; Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 750, 483 N.E.2d 537.

A petition for change of venue, however, must be brought at the earliest practical moment. (Wagner v. David (1966), 35 Ill. 2d 494, 498, 221 N.E.2d 248.) A petition based upon a general allegation of prejudice is untimely if brought after a hearing on the merits has started or the trial court has ruled on a substantive issue in the cause. (Heman v. Jefferson (1985), 136 Ill. App. 3d 745, 750-51, 483 N.E.2d 537; see Hildebrand v. Hildebrand (1968), 41 Ill. 2d 87, 90, 242 N.E.2d 145.) The rationale for the timeliness requirement is that the courts have long condemned a litigant’s attempt to seek a change of venue after he has formed an opinion, based upon the court’s adverse rulings, that the judge may be unfavorably disposed toward his cause. (In re Marriage of Kozloff (1984), 101 Ill.

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Bluebook (online)
510 N.E.2d 559, 157 Ill. App. 3d 363, 109 Ill. Dec. 691, 1987 Ill. App. LEXIS 2713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-birt-illappct-1987.