In re Marriage of Wade

Opinion

FOURTH DIVISION March 31, 2011

No. 1-10-1843

In re MARRIAGE OF D.T. WADE, Petitioner and ) Appeal from the Circuit Counterrespondent-Appellee, and S.L. WADE, Respondent ) Court of Cook County and Counterpetitioner-Appellant. ) ) No. 07 D 11714 ) ) ) Honorable ) Marya T. Nega, ) Judge Presiding. )

PRESIDING JUSTICE GALLAGHER delivered the judgment of the court, with opinion. Justices Lavin and Pucinski concurred in the judgment and opinion.

OPINION

Respondent, S.L. Wade, appeals from orders of the circuit court of Cook County granting

petitioner, D.T. Wade’s, motion to bifurcate the judgment for dissolution of marriage and entering

a bifurcated judgment for the dissolution of the parties’ marriage. On appeal, respondent

contends that the grant of petitioner’s motion to bifurcate must be reversed and the judgment for

dissolution of marriage vacated because the bifurcation of the proceedings was not warranted by

appropriate circumstances. We affirm.

BACKGROUND

On November 26, 2007, petitioner filed a praecipe for summons in suit for a dissolution of

marriage. On May 27, 2008, petitioner filed a petition for dissolution of marriage, in which he

asserted that he and respondent were married on May 18, 2002, and that they had two minor

children, Z.B.D. and Z.A., as a result of their marriage. He further asserted that irreconcilable 1-10-1843

differences and difficulties had caused the irretrievable breakdown of their marriage and asked the

court to enter an order dissolving the marriage; awarding the parties joint care, custody, and

control of their minor children; awarding him any and all of his nonmarital property free and clear

of any right, title, or interest of respondent; and awarding him his fair, just, and equitable share

and proportion of the marital property of the parties.

On August 13, 2008, respondent filed a response to petitioner’s petition for dissolution of

marriage and a counterpetition for dissolution of marriage, in which she denied petitioner’s claim

of irreconcilable differences and asserted that she should be awarded the sole legal care, custody,

control, and education of their children because that was in their best interests and that petitioner

was guilty of desertion and mental cruelty toward her and had committed adultery. Respondent

asked the court to dissolve the parties’ marriage and to award her sole legal care, custody,

control, and education of her children; temporary and permanent maintenance; and all attorney

fees incurred in connection with the litigation. Respondent also asked the court to bar petitioner

from seeking maintenance and to adjudicate the property rights of the parties.

On May 11, 2010, petitioner filed a motion to bifurcate the judgment for dissolution of

marriage, in which he asserted that the parties had satisfied the two-year separation requirement

to proceed under the grounds of irreconcilable differences and that appropriate circumstances

existed to bifurcate the judgment for dissolution because respondent had frustrated and delayed

the proceedings by repeatedly changing counsel and interfering with petitioner’s parenting time

with their two minor children. Petitioner further asserted that the delays in resolving the issue of

dissolution were draining funds out of the marital estate and were detrimental to the interests of

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his children, that a failure to bifurcate the proceedings would unduly prolong the case, and that

respondent would not be prejudiced by bifurcation because her separate residence had been

secured, substantial funds had been placed in escrow to address the expenses of the parties and

their children, and respondent had control of substantial additional marital funds. On May 14,

2010, Lester Barclay, the representative of the parties’ children, filed a response in support of

petitioner’s motion to bifurcate, in which he asserted that respondent had acted contrary to the

children’s best interests, that she had prolonged the litigation by changing attorneys numerous

times, that the delay was a detriment to the children, and that appropriate circumstances existed to

enter a bifurcated judgment for dissolution of marriage.

On May 26, 2010, respondent filed a response to petitioner’s motion to bifurcate, in which

she denied petitioner’s assertions that she had delayed the proceedings by repeatedly changing

counsel, that her actions were contrary to the best interests of her children, or that appropriate

circumstances existed to justify bifurcation. On June 14, 2010, respondent filed an amended

response, affirmative defenses, and memorandum of law in opposition to petitioner’s motion to

bifurcate, in which she asserted that appropriate circumstances to justify bifurcation did not exist

in this case and that bifurcation would be greatly prejudicial to her.

A hearing was held on June 22, 2010, at which time the circuit court granted petitioner’s

motion to bifurcate. In doing so, the court recognized that although bifurcation was generally

disfavored, a court could enter such an order in appropriate circumstances where it determined

that bifurcation would be in the parties’ best interests. The court stated that appropriate

circumstances to justify bifurcation were present in this case because respondent’s continual

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replacement of her attorneys had caused multiple delays and the protracted and contentious nature

of the litigation had impacted the parties’ children in a detrimental manner. The court further

stated that it did not believe bifurcation would have a detrimental impact on the case because a

custody trial was set to begin shortly and a trial on the financial aspects of the case was unlikely to

begin anytime soon, due in part to the large marital estate at issue. On June 25, 2010, the court

heard testimony from petitioner and entered judgment for the dissolution of marriage on the

ground of irreconcilable differences, while reserving all other issues to be dealt with in future

proceedings.

ANALYSIS

Respondent contends on appeal that the circuit court erred by granting petitioner’s motion

to bifurcate and entering a bifurcated judgment for the dissolution of marriage because

appropriate circumstances did not exist to justify bifurcation in this case. A circuit court shall

enter a judgment of dissolution of marriage if one of the approved grounds for dissolution has

been proved. 750 ILCS 5/401(a) (West 2008). However, a court may only enter a judgment of

dissolution while reserving resolution of the issues of child custody, child support, or maintenance

upon agreement of the parties or a motion by either party and a finding that appropriate

circumstances exist. 750 ILCS 5/401(b) (West 2008).

In In re Marriage of Cohn, 93 Ill. 2d 190, 199 (1982), our supreme court held that while

a circuit court does not have unfettered discretion to bifurcate a dissolution judgment, bifurcation

is justified in certain circumstances. The court set forth a nonexhaustive list of appropriate

circumstances for entering a bifurcated dissolution judgment, which included “[w]here the court

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does not have in personam jurisdiction over the respondent; where a party is unable to pay child

support or maintenance if so ordered; where the court has set aside an adequate fund for child

support pursuant to section 503(d) of the [Illinois Marriage and Dissolution of Marriage] Act; or

where the parties’ child or children do not reside with either parent.” Id. Bifurcation is justified

where the circumstances listed in Cohn are present or where the circumstances are of the same

caliber as those enumerated in Cohn. In re Marriage of Bogan, 116 Ill. 2d 72, 80 (1986). A

reviewing court will not disturb the circuit court’s decision to enter a bifurcated judgment of

dissolution of marriage absent an abuse of discretion. Copeland v. McLean, 327 Ill. App. 3d 855,

865 (2002).

Respondent asserts that the circuit court abused its discretion by granting bifurcation

because none of the appropriate circumstances listed in Cohn were present in this case and the

circumstances relied upon by the court to justify bifurcation were not of the same caliber as those

identified in Cohn. Before we can decide whether the court abused its discretion by granting

bifurcation, we must first ascertain the reason it granted petitioner’s motion.

The record shows that following argument on the motion to bifurcate, the circuit court

noted that the parties did not agree to bifurcation and stated that although it was clear from the

case law that bifurcation was generally disfavored, bifurcation was appropriate where the court

made a finding based on the circumstances of the case that the entry of such a judgment was in

everyone’s best interests. The court then cited to Cohn and explained that the list of appropriate

circumstances set forth therein was not exhaustive. The court stated that it felt the extended and

protracted litigation in this case was a problem and that it believed the highly contentious nature

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of the case was having a serious and detrimental impact on the mental health of the parties’

children. The court further stated that respondent had caused multiple delays by continually

replacing her attorneys, reiterated that it was “very troubled and concerned about the impact that

all of this has had upon the children,” and found that appropriate circumstances existed to grant

petitioner’s motion to bifurcate. The court then explained that it did not think bifurcation would

have a detrimental impact on the case because a custody trial had been scheduled and the financial

issues were not going to be resolved anytime soon, due in part to the size of the marital estate.

The record thus shows that the circuit court gave substantial consideration to the question

of whether appropriate circumstances existed to justify bifurcation and ultimately determined that

such circumstances existed in this case because the length and contentiousness of the proceedings

were having a detrimental impact on the mental health of the parties’ children. Although the

parties discuss numerous bases that the circuit court allegedly relied upon, or could have relied

upon, to justify bifurcation in their briefs, it is clear from the court’s comments that it granted

bifurcation because it was in the best interests of the parties’ children, and not because it wanted

to punish respondent for repeatedly changing counsel or delaying the proceedings.

Having ascertained the reason the circuit court believed bifurcation was justified, we now

determine whether that justification can be a proper basis for granting bifurcation. We initially

note that our supreme court explicitly stated that it did not attempt to list all possible appropriate

circumstances that warrant bifurcation in Cohn, 93 Ill. 2d at 199, and subsequently reiterated that

bifurcation is justified not only where the circumstances are the same as those listed in Cohn, but

also where the circumstances are of the same caliber (Bogan, 116 Ill. 2d at 80). Thus, bifurcation

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may be justified in this case even though none of the appropriate circumstances enumerated in

Cohn are present.

In In re Marriage of Kenik, 181 Ill. App. 3d 266, 278 (1989), the respondent filed a

motion for bifurcation and this court held that the circuit court had not abused its discretion by

granting that motion in part because the respondent was pregnant and dissolution was in the best

interests of the unborn child. This court has also taken into account how bifurcation might benefit

the emotional status of the party seeking such an order where that party was an elderly and very ill

woman in deciding that the circuit court did not abuse its discretion by granting bifurcation. In re

Marriage of Blount, 197 Ill. App. 3d 816, 820 (1990). Thus, although the parties have not cited,

nor has this court found, a case in which an Illinois court has held that bifurcation is justified

where it will benefit the emotional and mental well-being of the parties’ children, this court has

considered similar factors in Kenik and Blount while upholding bifurcated judgments of

dissolution.

In addition, two of the underlying purposes of the Illinois Marriage and Dissolution of

Marriage Act are to “mitigate the potential harm to the spouses and their children caused by the

process of legal dissolution of marriage,” and to “secure the maximum involvement and

cooperation of both parents regarding the physical, mental, moral and emotional well-being of the

children during and after the litigation.” 750 ILCS 5/102(4), (7) (West 2008). Similarly, the

circuit court is directed to focus on the best interests of the child and on the child’s physical and

emotional well-being in child custody proceedings. Ill. S. Ct. R. 900(a) (eff. July 1, 2006). Thus,

it is clear that the legislature intended for the circuit court to take the best interests and well-being

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of the parties’ children into account while conducting the proceedings on a dissolution of

marriage.

We therefore determine that reasonable circumstances may exist to justify bifurcation

where the court concludes that bifurcation is necessary to protect and promote the emotional and

mental well-being of the parties’ children. This determination is consistent with other decisions of

this court, which have upheld bifurcation where necessary to protect the interests of a party’s

unborn child and to benefit the emotional status of a party who was elderly and very ill, and with

the circuit court’s responsibility to mitigate the harm to the parties’ children caused by the

dissolution process and to promote their well-being.

Having determined that bifurcation may be justified where necessary to alleviate the

detrimental impact of the dissolution proceedings on the parties’ children, we now must decide

whether the circuit court abused its discretion by finding that appropriate circumstances existed to

justify bifurcation on that basis in this case.

The circuit court has considerable discretion in deciding whether to grant bifurcation and,

as the finder of fact, was in the best position to determine the effect bifurcation would have on the

parties and their children. Copeland, 327 Ill. App. 3d at 866. There is nothing in the record

which contradicts the court’s findings that the litigation in this case was unusually long and

contentious and that the length and contentiousness of the proceedings were having a detrimental

impact on the parties’ children. To the extent the court believed respondent was delaying

proceedings by repeatedly replacing counsel, it did not act inappropriately by granting bifurcation

to overcome those delays and foster the progression of the case. Partipilo v. Partipilo, 331 Ill.

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App. 3d 394, 401 (2002). In addition, the court determined that bifurcation would not have a

negative impact on the case where the marital estate was large and it appeared unlikely that a trial

on the financial matters would begin anytime soon. Thus, substantial complications were bound

to arise in reaching a resolution regarding the financial matters present in this case regardless of

whether the court entered a bifurcated judgment of dissolution, and delaying the entry of a

dissolution judgment until the financial matters were resolved would have only exacerbated the

detrimental impact the litigation was having on the parties’ children.

While we agree with respondent that bifurcation did not terminate the litigation between

the parties or resolve the custodial dispute, we do not agree that the circuit court abused its

discretion by granting bifurcation. The court was confronted with an unusually protracted and

contentious litigation in this case, which it reasonably believed was having a detrimental impact on

the mental and emotional health of the parties’ children. By granting a bifurcated judgment of

dissolution, the court at least resolved one issue present in the proceedings and provided the

parties and their children with certainty and finality regarding the parties’ marital status. Unlike in

Cohn, 93 Ill. 2d at 200, where the circuit court did not give any consideration to the question of

whether bifurcation was necessary, here the court acknowledged the general presumption against

bifurcation and considered the relevant case law and the unique circumstances present in this case

before concluding that bifurcation was justified.

The circuit court was present for and involved in the extensive proceedings that had taken

place prior to bifurcation and was therefore in the best position to determine the effect bifurcation

would have on the parties, their children, and the case. Copeland, 327 Ill. App. 3d at 866. As

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such, we will not upset the court’s considerable discretion to bifurcate and thus conclude that the

court did not abuse its discretion by granting petitioner’s motion to bifurcate and entering a

bifurcated judgment of dissolution of marriage. Id.

Respondent further asserts that the circuit court abused its discretion and violated her

right to due process because it granted petitioner’s motion to bifurcate on grounds that were not

raised in the motion. However, the record shows that petitioner alleged in his motion that

bifurcation was warranted because the delays in resolving the issue of dissolution were

detrimental to his children’s best interests and that the court granted the motion because it

believed bifurcation was in the best interests of the parties’ children. Thus, we conclude that the

court granted petitioner’s motion to bifurcate on grounds that were raised in the motion and did

not abuse its discretion or violate respondent’s due process rights by doing so.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be Attached to Each case) _____________________________________________________________________________

In re MARRIAGE OF D.T. WADE, Petitioner and Counterrespondent-Appellee, and S.L. WADE, Respondent and Counterpetitioner-Appellant _____________________________________________________________________________

No. 1-10-1843

Appellate Court of Illinois First District, Fourth Division

March 31, 2011 _____________________________________________________________________________

PRESIDING JUSTICE GALLAGHER delivered the opinion of the court.

LAVIN and PUCINSKI, JJ., concur.

_____________________________________________________________________________

Appeal from the Circuit Court of Cook County.

Honorable Marya T. Nega, Judge Presiding. _________________________________________________________________________

For APPELLANT, Kalcheim Haber, LLP, Chicago, IL (Michael W. Kalcheim, Michael A. Haber, of counsel)

For APPELLEE: D.T. Wade, Nadler Pritikin & Mirabelli, LLC, Chicago, IL (James B. Pritikin, Sylvia A. Sotiras, Michael D. Sevin, of counsel) and Paul J. Bargiel, P.C. (Paul J. Bargiel, of counsel)

For APPELLEE: Child Representative, Barclay, Dixon & Smith, P.C. (Lester L. Barclay, of counsel)

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