In re Marriage of Malinowski

570 N.E.2d 479, 211 Ill. App. 3d 536, 156 Ill. Dec. 3, 1991 Ill. App. LEXIS 379
CourtAppellate Court of Illinois
DecidedMarch 15, 1991
DocketNo. 1—90—0191
StatusPublished

This text of 570 N.E.2d 479 (In re Marriage of Malinowski) 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 Malinowski, 570 N.E.2d 479, 211 Ill. App. 3d 536, 156 Ill. Dec. 3, 1991 Ill. App. LEXIS 379 (Ill. Ct. App. 1991).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Lucjan Malinowski, filed a petition for dissolution of marriage on November 6, 1987. Respondent, Maria Malinowski, filed an answer and a third-party complaint against Irena Hurman and Beata Owczarz, requesting the court to adjudicate respondent’s marital and homestead rights in the former marital home, which Hurman purchased from petitioner. (The action against Owczarz, petitioner’s daughter, apparently has been dismissed, and she is not involved in this appeal.) The matter proceeded to trial on September 6, 1989, and was continued to December 13, 1989. Respondent appeared pro se all through the trial. At the conclusion of the proceedings, the trial court granted a judgment of dissolution, made a distribution of marital property, and awarded respondent limited maintenance. The court also ordered respondent to vacate the home owned by Hurman, but denied Hurman’s request for rent. On appeal respondent contends that the trial court erred in entering judgment without giving her an opportunity to present evidence in defense or on her third-party complaint; that the court erred in its distribution of the property and its limited maintenance; and erred in allowing certain bank books into evidence.

On appeal respondent is now represented by counsel and at oral argument counsel informed this court that respondent is not contesting the dissolution of the marriage. Consequently, we concern ourselves only with the property and maintenance issues.

The parties were married on March 8, 1976, in Chicago, and separated on March 15, 1987. No children were born of the marriage. Petitioner filed the petition for dissolution on November 6, 1987. At that time, petitioner was 45 years old and respondent was 65 years old.

Because respondent initially contends that the trial court did not permit her to present her case, we shall set out the chronology and events of the case in some detail. The trial of this matter was most difficult, and that difficulty was caused by the conduct of respondent and her friend, Mrs. Rudek. Although there was a court-appointed interpreter, Rudek constantly interjected herself as a spokesperson for respondent. Additionally, respondent rarely answered questions put to her, but rather persisted in carrying on a diatribe against petitioner. Indeed, the trial court displayed extraordinary patience towards respondent, not only during the trial, but in the many months prior to trial.

From December 1987 until before trial, three different attorneys filed appearances on behalf of respondent at various times, but all withdrew. When the trial judge finally ordered the trial to proceed in September 1989, it was only after he and the presiding judge of the division had unsuccessfully tried to obtain legal representation for respondent. The trial judge expressed reluctance to proceed to trial with respondent unrepresented, but correctly stated that he had no other recourse.

At trial, petitioner called respondent as an adverse witness. Before the questioning began, the court explained to respondent that she had the right to object to improper questions and that the court would rule on any objections. Respondent testified that she and petitioner moved into the residence at 1327 N. Hamlin in April 1987. She had not paid any money towards rent, mortgage, taxes or insurance since 1987.

Respondent testified that in 1985 and 1986 she opened two accounts at Security Federal Savings and Loan and that she was the only person who withdrew any money from these accounts. She identified a certificate of deposit which she opened with a $2,500 deposit. She closed the account representing that certificate of deposit on October 2, 1986, and took possession of the money. On April 7, 1987, she closed the other account at Security Federal. She sent the funds from these accounts, a total of $32,000, to Poland.

She testified that “just a little bit was my money” and that the rest belonged to her children. She stated that when her son left the United States, he asked her to take possession of the money. While he lived in the United States, her son worked in a factory and earned “good money.” She worked double shifts.

Respondent testified that she receives $150 per month for social security, $67 per month for disability, and a $40 monthly pension from Germany. She has no other income and is in poor health. She last worked in June 1987. During that month, petitioner told her that he wanted a divorce. She entered the hospital for a “nervous condition” in June 1987 and remained hospitalized for three weeks.

Petitioner’s attorney informed the court that respondent identified the Security Federal documents at her deposition, which transcript he did not order. He offered to subpoena a bank officer in order to lay a proper foundation. The court, however, admitted the records subject to cross-examination. The court asked respondent whether she claimed that petitioner took any funds from the accounts. Respondent replied that he took the bank books, but not the money because she had withdrawn the money. When asked whether she wanted to say anything else about the money, respondent stated that petitioner had ruined her health, that she worked for 13 years, then found herself on the street without a place to sleep.

Petitioner testified that he is 48 years old and has lived in the United States for 19 years. He worked for eight of his 13 years of marriage to respondent. He currently works about 25 hours per week as a cook, earning $9.29 an hour. His net pay is $160 to $175 per week. He stated that respondent’s son lived in the United States for seven months and worked only for three of those months. Petitioner does not know how much the son earned.

Petitioner testified that he purchased the property at 1327 N. Hamlin in November 1986 for $17,000. He borrowed that amount from his sister. Although respondent refused to give him any money for the purchase, the parties moved into the residence. He sold the property in April 1987 to Hurman for $20,000. Petitioner described himself as a widower in the deed and forged the name of his daughter. (The trial court was informed that Hurman had received clear title issued by Chicago Title & Trust Company.) Petitioner repaid his sister the $17,000 that he had borrowed and spent the rest of the money on court expenses.

The court then asked respondent whether she had any questions for petitioner at this stage. She responded: “These are all lies.” She asked how petitioner’s sister earned so much money. Petitioner responded that she was paid well in the cleaning business and came to the United States three times. Once she stayed for two years and two months and twice stayed for more than a year. Instead of asking petitioner other questions, respondent made comments, which were stricken by the court.

The direct examination of petitioner continued. He stated that he took title in his name alone because he bought the property with his own money for investment purposes. He painted the home, installed a new stove and heating system, and worked on the roof and garage. He sold the home soon after he bought it. Petitioner told respondent that he intended to sell the home, and she agreed to the sale. He received $17,971.65 in cash from the closing. The court admitted petitioner’s financial affidavit subject to cross-examination.

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Bluebook (online)
570 N.E.2d 479, 211 Ill. App. 3d 536, 156 Ill. Dec. 3, 1991 Ill. App. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-malinowski-illappct-1991.