In Re Marriage of Wiedner

394 N.E.2d 620, 75 Ill. App. 3d 1014, 31 Ill. Dec. 418, 1979 Ill. App. LEXIS 3178
CourtAppellate Court of Illinois
DecidedAugust 23, 1979
Docket78-368
StatusPublished
Cited by3 cases

This text of 394 N.E.2d 620 (In Re Marriage of Wiedner) 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 Wiedner, 394 N.E.2d 620, 75 Ill. App. 3d 1014, 31 Ill. Dec. 418, 1979 Ill. App. LEXIS 3178 (Ill. Ct. App. 1979).

Opinion

Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Julianne N. Wiedner appeals from the portion of a judgment for dissolution of marriage which adjudicated matters of support, maintenance and property rights. She contends that a bifurcated trial with a 48-hour interval was mandatory under section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 403(e)), and that her waiver of the waiting period after the proof of grounds was ineffectual. She also contends that the judgment is against the manifest weight of the evidence.

Petitioner argues that the meaning of the term “contested trials” in the Act includes a contest as to any issue and that this provision cannot be waived. The Illinois Supreme Court has recently determined that, as to contested trials, the trial must be bifurcated and the 48-hour interval respected even if the parties and the trial court agree to proceed immediately with the remaining issues after grounds are found. (Strukoff v. Strukoff, 76 Ill. 2d 53, 61-62 (1979).) Therefore, the essential question before us is whether the proceedings amounted to a contested trial as described in section 403(e) of the Act which provides:

“(e) Contested trials shall be on a bifurcated basis with the grounds being tried first. Upon the court determining that the grounds exist, the court shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial.” Ill. Rev. Stat. 1977, ch. 40, par. 403(e).

The petitioner filed her complaint for divorce on November 15,1976. There followed interrogatories, discovery, depositions, conferences between counsel and with the parties and a pretrial. The parties appeared in court thereafter on December 16, 1977. The parties agreed that “the petitioner, wife, shall get a divorce by stipulation as if in default.” Before the terms of the stipulation were recited to the court, counsel for Mrs. Wiedner stated that 13 conferences had taken place with the six children of the parties and that the parties had agreed that the petitioner would have custody of the four minor children; and the additional stipulation was stated that the petitioner would proceed, as the court noted, “with respect to the grounds, and then go ahead with the property.”

The petitioner then testified as to the grounds, and there was no cross-examination by respondent’s attorney. At the close of this testimony the court stated that a judgment of dissolution of the marriage was awarded to the petitioner and that, except for custody, the remaining issues were contested, but that the parties had stipulated to waive “bifurcation.” The court then proceeded directly to a hearing on the remaining issues. The final judgment was filed on April 25, 1978. Petitioner filed her notice of appeal on May 24, 1978.

In Strukoff v. Strukoff, the supreme court noted:

“The purpose of the specified waiting period between the hearings in contested trials, obviously in aid of the Act’s general purposes, is to encourage the amicable settlement of remaining issues. (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).)” (76 Ill. 2d 53, 60-61.)

And

“An action for dissolution of marriage affects society, and it involves interests other than those of the parties themselves. (People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 394.) In the light of the Act’s purposes, we consider that the provision for bifurcated hearings and the interval to afford the parties an opportunity to settle amicably remaining questions are not unreasonable conditions in this statutorily created proceeding. (See Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 576; People ex rel. Doty v. Connell (1956), 9 Ill. 2d 390, 396.) 8 8 8” (76 Ill. 2d 53, 62.)

And the court concluded:

“We consider that the parties could not waive the provision for an interval between the hearings called for by section 403(e). The language of the legislature is that the court ‘shall allow not less than 48 hours for the parties to settle amicably the remaining issues before resuming the trial.’ (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).) The provision is mandatory and not discretionary, and the noncompliance in the trial court will require reversal of the judgment as it relates to the second hearing.” 76 Ill. 2d 53, 61-62.

Strukoff may be factually distinguishable because both the grounds and the remaining issues were contested, whereas here the grounds were not contested. The issue before us narrows to whether the 48-hour waiting period must be observed when the grounds are not contested, a question which was not reached in the factual setting of Strukoff.

We note parenthetically that the last quotation from Strukoff refers to the “second hearing,” which might suggest that the term “contested trials” is used in the larger sense of referring to the entire proceedings as to all issues. This would permit an inference that if any issue is contested the trial is contested. However, it is difficult to say with any certainty that this clearly states the legislative intention. The use of the terms “hearings” and “trials” is often an interchangeable one. See, e.g., Black’s Law Dictionary 852, 1675 (4th ed. 1951).

The 48-hour interval as a minimum in contested trials, as noted in Stmkoff, is for the laudable purpose of providing the parties an opportunity to settle the remaining issues amicably, with claimed marital misconduct and grievances eliminated from consideration. The provision also, of course, serves judicial economy since, in absence of proof of grounds, further hearings are saved; and if there is proof of grounds, an amicable settlement may also save further hearings. The attorneys who co-authored the Act, in their amicus curiae brief filed in Stmkoff, also note “the psychological impetus of a preliminary decision on the merits.” In a footnote they advance the opinion that, even where the grounds are agreed, bifurcation may prevent the parties from injecting provocative evidence not necessary to prove up the grounds, to influence the decision on the remaining issues. However, while this analysis has some persuasion, it appears that there are overriding considerations for the nonapplicability of the waiting period in cases where the grounds are uncontested. It would appear that parties who are willing to go ahead immediately would be in no better position after the uncontested prove-up to negotiate or know the extent of their liabilities than before the prove-up.

In causes such as this case, where the parties have stipulated to the grounds, there would appear to be a minimal opportunity for further provocation or rancor which could affect the decision on the other issues. This seems particularly true under the circumstances of this case in which the complaint has been on file for many months, and where there has been a great amount of pretrial activity including interrogatories, discovery, depositions, numerous conferences between counsel and with the parties and a pretrial conference. It is difficult to see how a further 48-hour “cooling off” period would have any practical effect or how the chance of a settlement would be better after the 48-hour intermediate delay.

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Bluebook (online)
394 N.E.2d 620, 75 Ill. App. 3d 1014, 31 Ill. Dec. 418, 1979 Ill. App. LEXIS 3178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-wiedner-illappct-1979.