In Re Marriage of Sheber

459 N.E.2d 1056, 121 Ill. App. 3d 328, 76 Ill. Dec. 921, 1984 Ill. App. LEXIS 1415
CourtAppellate Court of Illinois
DecidedJanuary 20, 1984
Docket83-162
StatusPublished
Cited by18 cases

This text of 459 N.E.2d 1056 (In Re Marriage of Sheber) 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 Sheber, 459 N.E.2d 1056, 121 Ill. App. 3d 328, 76 Ill. Dec. 921, 1984 Ill. App. LEXIS 1415 (Ill. Ct. App. 1984).

Opinion

JUSTICE SULLIVAN

delivered the opinion of the court:

Respondent appeals from the denial of his motion to vacate the final judgment entered in an action for dissolution of marriage. He contends that the trial court abused its discretion in (1) refusing to set aside the default judgment entered against him; (2) failing to (a) bifurcate the proceedings as required by section 403(e) of the Rlinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 403(e)), or (b) provide additional notice to him pursuant to section 405 of that Act (Ill. Rev. Stat. 1981, ch. 40, par. 405); (3) failing to fairly apportion the marital property; and (4) requiring him to pay maintenance.

The parties were married on June 19, 1965, and had three children: Carolyn, born May 11, 1966; Andy, born July 27, 1968; and Laura, born May 12, 1975. Petitioner, 41 years old, is employed as a housekeeper and earns approximately $140 per week. Respondent, 45 years old, is a mechanical design engineer and earned $22,000 per year until he was discharged from his employment on August 12, 1982. He was unemployed at the time of trial.

Petitioner filed her petition for dissolution of the marriage on July 21, 1980, alleging extreme and repeated physical and mental cruelty on respondent’s part, and seeking custody of the children, maintenance and child support, sole ownership of the marital home, and an equitable distribution of the remainder of the marital property. Respondent denied the allegations, and it appears from the record that he filed a counterpetition, but no copy thereof has been provided on appeal. Trial of this action did not take place until September 8, 1982, and a summary of some of the proceedings which caused the delay is pertinent to the issues before us:

July 29, 1980: Petitioner is granted exclusive possession of the marital home pending a final hearing, and respondent is directed to pay 40% of his net income as temporary unallocated maintenance and child support for 120 days.

February 18, 1981: On petitioner’s motion, respondent’s visitation with the children is restricted, and a guardian ad litem (the guardian) is appointed; the matter of visitation rights is continued several times by agreement, to afford the guardian an opportunity to interview all parties.

May 5, 1981: The order for temporary unallocated family support is reinstated on motion of petitioner, and she is granted a judgment for $381 in arrearages.

July 21, 1981: By agreement, the matter is set for trial on October 26, 1981.

July 22, 1981: Respondent’s attorney withdraws. Substituted counsel is not secured until December 15, 1981.

October 26, 1981: Trial is reset for January 12, 1982, and respondent is directed to cooperate in preparation of the pretrial memorandum.

December 15, 1981: Substituted counsel files his appearance for respondent, and an extension of time is granted to enable him to become familiar with the case.

December 17, 1981: Petitioner moves for sanctions because respondent failed to comply with the October 26 order to cooperate. Respondent does not appear.

December 28, 1981: Respondent’s response and counterpetition are stricken as sanctions. Respondent fails to appear.

January 5, 1982: The December 28 order is vacated, and respondent is ordered to pay a sum to petitioner’s attorney as a sanction. Trial is rescheduled for February 22, 1982, at respondent’s request.

January 19,1982: After in camera interviews with the children, at which all parties are represented by counsel, the court restricts respondent’s visitation rights and orders that the entire family undergo psychotherapy.

February 22,1982: Trial is reset for April 1, 1982.

February 23, 1982: Respondent’s visitation rights are suspended for failure to comply with the court’s order to arrange for psychological counseling.

March 23, 1982: Respondent’s motion for resumption of visitation is denied, and he is again ordered to arrange for family counseling.

April 1,1982: Respondent’s attorney moves to withdraw, citing respondent’s failure to cooperate. Trial is delayed, and the motion is granted on April 19, 1982. Substituted counsel is not obtained until October 8,1982.

May 19,1982: Trial is delayed until June 28, 1982.

June 28,1982: Respondent requests a continuance because he has not yet retained new counsel. Trial is rescheduled for August 19 for hearing on the grounds and August 23 and 24 for hearing on the remaining issues when respondent refuses to waive bifurcation. Respondent is admonished that no further continuances will be granted.

The case is reassigned, and a new trial date of August 18, is set at petitioner’s request. August 6, 1982:

Trial is reset for September 8,1982. August 18, 1982:

On September 8, respondent failed to appear despite having received notice that the final hearing was set for that date. The trial court was informed that respondent knew of the hearing and stated that he would not appear because he was opposed to the divorce and would not cooperate. At the request of petitioner and the guardian, the trial court proceeded to a hearing on both the grounds and the property and custody issues. Petitioner testified in pertinent part that on April 25, 1980, without cause or provocation, respondent threw her against a wall; on May 20, 1980, he struck her with his fist when she interfered with the threatened physical punishment of their oldest child; and on May 22, 1982, he pushed her several times because she had taken money from the house to pay for a cab when he took her car keys, preventing her from going to work. In addition, respondent’s conduct toward the children was extremely objectionable, but whenever she sought to interfere he would strike her. Petitioner further testified, with regard to the contested property issues, that the marital home, purchased in May of 1971, had an appraised value of $65,000 and was subject to a $15,500 mortgage. It was in need of substantial repairs for some time before respondent moved out in August of 1980, but he refused to provide the necessary funds. They had furniture in the home, part of which respondent took with him to furnish his apartment. Petitioner also stated that they had three cars — a 1963 Rambler, which she purchased prior to the marriage, and a 1969 Ford station wagon and a 1973 Javlin, purchased during the marriage. Respondent was employed as a mechanical designer, earning $22,000 per year, until he was fired on August 12, 1982. He had applied for unemployment compensation, but petitioner stated that she did not know how much he would receive. She was employed as a housekeeper and earned approximately $140 per week. Finally, petitioner testified that respondent had not paid the $381 judgment for arrearages entered May 5, 1981, nor had he complied with the temporary order directing him to pay her 40% of his net income since August 12, 1982. The total arrearages were $2,187 — including the $381 judgment.

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Bluebook (online)
459 N.E.2d 1056, 121 Ill. App. 3d 328, 76 Ill. Dec. 921, 1984 Ill. App. LEXIS 1415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-sheber-illappct-1984.