In Re Marriage of Ward

668 N.E.2d 149, 282 Ill. App. 3d 423, 217 Ill. Dec. 964, 1996 Ill. App. LEXIS 520
CourtAppellate Court of Illinois
DecidedJune 28, 1996
Docket1-94-3027
StatusPublished
Cited by44 cases

This text of 668 N.E.2d 149 (In Re Marriage of Ward) 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 Ward, 668 N.E.2d 149, 282 Ill. App. 3d 423, 217 Ill. Dec. 964, 1996 Ill. App. LEXIS 520 (Ill. Ct. App. 1996).

Opinion

JUSTICE COUSINS

delivered the opinion of the court:

On November 6, 1990, Phyllis Ward (petitioner) filed a petition for dissolution of her marriage to Reginald Ward (respondent) based on the ground of physical cruelty. On September 20, 1993, the case was set for trial on December 9, 1993. On December 9, 1993, a representative of the law firm representing respondent appeared in court and requested a continuance due to the illness of the attorney handling respondent’s case. The court denied the request and held the trial without the presence of respondent or his attorney. Respondent’s attorney appeared in court after the prove up to object to the trial in his absence. On January 14, 1994, petitioner requested leave to amend the complaint to change the grounds sought from physical cruelty to irreconcilable differences. The trial court granted the leave to amend and issued a final judgment for dissolution of marriage, based on the December 9, 1993, hearing. The judgment stated, inter alia, that respondent’s response to the original petition had been stricken for failure to attend a pretrial conference. The court also denied respondent’s motions to set aside and vacate the judgment of January 14, 1994. Respondent appeals, contending that: (1) the court erred in refusing to grant a continuance; (2) the court erred in refusing to set aside the default judgment; (3) the court abused its discretion in awarding the bulk of the assets to petitioner and the bulk of the debts to the respondent; and (4) petitioner waived any advantage obtained from the default judgment by amending her petition.

BACKGROUND

Petitioner and respondent were married in Chicago on September 25, 1982, and they had one child during their marriage. Prior to this marriage, petitioner had one child. The proceedings in the case sub judice commenced on November 9, 1990, when petitioner filed a petition for dissolution of marriage based on physical cruelty. Respondent, on March 3, 1992, filed a response to the petition for dissolution of marriage.

On July 30, 1992, petitioner filed her first set of interrogatories and a request for production of documents. Respondent failed to answer the petitioner’s discovery requests within 28 days. Therefore, on October 8, 1992, petitioner filed a motion to compel discovery compliance. When the case was called for status later that day, the court entered an order directing that all parties comply with outstanding discovery requests by the close of business on October 12, 1992.

Respondent filed answers to petitioner’s first set of interrogatories on October 13, 1992. However, petitioner filed a rule to show cause alleging that respondent failed to produce relevant documents. At the next court hearing, based on the representations of respondent’s attorney that all documents had been produced in response to the request for production, the court ordered respondent to file an affidavit of compliance no later than December 14, 1992.

On January 8, 1993, petitioner filed a second petition for rule to show cause. Petitioner based this petition on the fact that respondent had failed to comply with the court order requiring him to file an affidavit of compliance and to produce documents no later than December 14, 1992. At the hearing on the rule to show cause, the court granted respondent until January 28, 1993, to file a written response to the rule to show cause and postponed the hearing on this matter until February 3, 1993.

When the hearing on the rule to show cause resumed on February 3, 1993, the respondent still had not filed a written response. Also, Charles Snowden, the attorney for respondent, was unable to attend, and respondent was represented by one of Mr. Snowden’s associates, who was not prepared to argue the rule to show cause. Therefore, the court sanctioned respondent and ordered him to pay the attorney fees incurred by petitioner.

On February 16, 1993, respondent tendered documents in response to petitioner’s deposition notice. The respondent also tendered to the court an affidavit of compliance, which the court had previously ordered him to file by December 14, 1992. However, respondent never answered the petitioner’s request for production of documents. As a further attempt to reduce future discovery problems, the court ordered respondent to appear for his deposition before March 6, 1993.

On March 9, 1993, the case was called for pretrial status. This date had been set by an agreed order that had been entered by respondent’s attorney. However, respondent’s attorney failed to show on this date. As a result, the court sanctioned respondent once again and required him to pay attorney fees.

In anticipation of the upcoming trial, petitioner filed a request to admit facts and genuineness of documents. This request was never answered by respondent. On March 17, 1993, petitioner filed another petition for rule to show cause relating to respondent’s failure to appear for the pretrial conference. Petitioner supported this petition by citing that respondent failed to appear in court on several occasions, failed to produce documents in a timely fashion, and failed to appear for his deposition as ordered to by the court. Therefore, petitioner asked that the court strike respondent’s response to the petition for dissolution of marriage.

On April 2, 1993, the court granted respondent until April 8, 1993, to file a written response to the latest petition for rule to show cause and set April 12, 1993, as the hearing date for the rule to show cause. On April 12, 1993, the court held a hearing on the rule to show cause. However, respondent’s attorney was once again not present; he requested in a message to the court that he be allowed additional time to file responsive pleadings. The court again ordered respondent to pay attorney fees and ordered that the respondent’s response to the petition for dissolution of marriage be stricken as a sanction.

On September 20, 1993, attorney Snowden was present in court when the court set the petitioner’s petition for prove up for December 9, 1993, at 2 p.m. On October 12, 1993, the petitioner filed a second request for admission of facts. However, respondent never answered this request. The facts in this request included the market value of the marital residence and an apartment building owned by the parties along with outstanding mortgages on both properties.

On December 9, 1993, when the case was called for prove up at 2:15 p.m., respondent’s attorney was not present. The court was informed that respondent had also failed to appear for the trial because attorney Snowden advised him that his attendance would not be necessary, inasmuch as attorney Snowden was ill and would obtain a continuance. The judgment order that the court entered on January 14, 1994, states that the court had received a phone call from the office of respondent’s attorney stating that attorney Snow-den had a back problem and could not appear in court. Thirty minutes after the case, was scheduled to be called for prove up, William Richardson, another attorney from Snowden’s law firm, the law firm of record for respondent, arrived in open court. Richardson stated that attorney Snowden was unable to attend because of a back problem.

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Cite This Page — Counsel Stack

Bluebook (online)
668 N.E.2d 149, 282 Ill. App. 3d 423, 217 Ill. Dec. 964, 1996 Ill. App. LEXIS 520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-ward-illappct-1996.