In Re Marriage of Kerman

624 N.E.2d 870, 253 Ill. App. 3d 492, 191 Ill. Dec. 682, 1993 Ill. App. LEXIS 1800
CourtAppellate Court of Illinois
DecidedDecember 6, 1993
Docket2—92—1180, 2—93—0663 cons.
StatusPublished
Cited by18 cases

This text of 624 N.E.2d 870 (In Re Marriage of Kerman) 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 Kerman, 624 N.E.2d 870, 253 Ill. App. 3d 492, 191 Ill. Dec. 682, 1993 Ill. App. LEXIS 1800 (Ill. Ct. App. 1993).

Opinion

JUSTICE COLWELL

delivered the opinion of the court:

Respondent, Brian Kerman, appeals from the judgment of the circuit court of Du Page County which dissolved his marriage to petitioner, Jeanne Kerman, awarded custody of the minor children to petitioner, and distributed the marital and nonmarital property. On appeal, respondent contends that the trial court erred in barring relevant testimony of the children’s therapist, in awarding custody of the children to petitioner contrary to their best interest, and by including nonmarital property in the distribution of the marital estate. We reverse.

The parties were married in 1982. Two minor children were born of the marriage, Jeremy, age eight at the time of the trial, and Dustin, then age five. Petitioner filed a petition for dissolution of marriage on July 27, 1989, and also filed a motion for temporary relief, seeking, inter alia, temporary custody of the children. No custody order was entered until the last day of trial, June 5, 1992, when temporary custody was awarded to petitioner.

In September 1989 petitioner moved out of the marital home with the children to the home of her sister. On September 13, 1989, the trial court entered an order allowing respondent visitation with the children.

From September 1989 to December 1991, respondent took the children on an almost weekly basis to see Daniel B. Lippmann, a social worker and therapist engaged by the parties to counsel the children about the impending divorce. In October 1989, respondent took the children to a psychologist, Dr. Harry Gunn, for testing and evaluation. Dr. Gunn was respondent’s expert witness in the custody dispute.

In November 1989 the court ordered that the parties be seen by a conciliator, psychologist Dr. Roger Hatcher. During the next few months, Dr. Hatcher conducted seven evaluation sessions with the parties, including meetings in which each party came separately with the children. Petitioner called Dr. Hatcher as her expert witness in the custody dispute.

In March 1990 petitioner moved to a two-bedroom apartment. Victor Ivanoff, formerly an employee of respondent and close friend of both parties, spent time with petitioner and the children in the apartment, including staying over some nights. The nature of Ivanoff’s relationship with petitioner and its possible effect on the children was, and remains on appeal, a subject of substantial dispute. The trial court struck respondent’s offer of proof that Ivanoff was convicted of telephone harassment for making anti-Semitic threats. Respondent is Jewish and the children have been raised in the Jewish faith.

On May 21, 1990, pursuant to a court order requested by respondent, the children were taken by respondent and petitioner to Mt. Sinai Hospital to be examined for sexual abuse. The 14-day protection order also prohibited each party from conjugal cohabitation with another in the presence of the children. No evidence of abuse was found, and the children were released on May 25, 1990.

The parties quarrelled frequently over the children’s health care. In June 1990, the trial court entered an agreed order requiring that the parties refrain from taking the children to health care providers, without notice and consent of the other, with the exception of several designated practitioners, including Daniel Lippmann.

On August 27, 1992, the trial court filed a memorandum opinion, and on September 24, 1992, a judgment for dissolution of marriage was entered. Custody of the children was awarded to petitioner, subject to limited visitation by respondent. Respondent was ordered to pay petitioner $900-per-month child support, $300-per-month maintenance for five years, and $20,000 for petitioner’s attorney fees.

The total marital estate for which the trial court assigned values was $274,000. Of that amount, respondent was awarded $191,000 and petitioner, $81,000. The parties’ business, D.K. Value Tires, was awarded to respondent. Respondent was also ordered to pay debts of the tire business totalling $23,000, which included a $19,000 debt to Goodyear Tire Company. Commonwealth Edison and Quaker Oats stocks were classified as marital property and awarded to respondent. The marital residence was ordered sold, with 70% of the net proceeds to be distributed to petitioner, and 30% to respondent.

We note initially that we have jurisdiction to hear this appeal. The question arises because the trial court filed a memorandum opinion on August 27, 1992, in which it stated its intention that its decision “take effect on September 1, 1992[,] regardless of whether the final judgment has been signed.” The judgment for dissolution of marriage was signed and filed on September 24, 1992; respondent filed a notice of appeal of that judgment on October 1, 1992, and an amended notice, appealing from both the memorandum opinion and the judgment for dissolution, on October 20,1992.

We believe that both notices of appeal were timely. Supreme Court Rule 272 provides in pertinent part that “[i]f at the time of announcing final judgment *** a circuit court rule requires the prevailing party to submit a draft order, *** the judgment becomes final only when the signed judgment is filed.” 137 Ill. 2d R 272.

Rule 15.03(a) of the Circuit Court of the Eighteenth Judicial Circuit requires the prevailing party to submit a draft judgment for signature on the date of decision. (18th Jud. Cir. R. 15.03(a) (1987).) On September 24, 1992, petitioner submitted a draft judgment, which the trial court signed and filed. Thus, the judgment for dissolution entered on September 24, 1992, was the final judgment of the circuit court for purposes of appeal.

We further note our finding that a petition for attorney fees filed against respondent by respondent’s former counsel did not render this appeal premature. On the day it entered its marriage dissolution decree, the trial court also granted respondent’s prior counsel leave to withdraw and to file a petition for attorney fees. The fee petition was filed on October 21,1992.

This court has held that attorney fees cannot be deemed collateral or incidental to a marriage dissolution decree and must be allocated as a prerequisite to a final, appealable judgment. (In re Marriage of Dorning (1983), 117 Ill. App. 3d 620.) In the instant case, the trial court apportioned fees between respondent and petitioner in its judgment for dissolution. Respondent was ordered to pay $20,000 of petitioner’s attorney fees and to be responsible for his own. Respondent’s prior counsel sought fees solely from respondent as a former client. The determination of the reasonableness of fees for payment by respondent to his former attorney does not affect the previous apportionment of attorney fees between the parties, nor does it affect the finality of the judgment for dissolution of marriage.

Respondent first contends that the trial court abused its discretion by not allowing relevant testimony of the children’s therapist, Daniel Lippmann. Specifically, respondent argues that it was error to allow Lippmann to claim the privilege of confidentiality when he had the consent of one of the parents, i.e., respondent.

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Bluebook (online)
624 N.E.2d 870, 253 Ill. App. 3d 492, 191 Ill. Dec. 682, 1993 Ill. App. LEXIS 1800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kerman-illappct-1993.