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In Re Marriage of Wiedner

OPINION FILED AUGUST 23, 1979.

IN RE MARRIAGE OF JULIANNE N. WIEDNER, PETITIONER-APPELLANT, AND JOSEPH R. WIEDNER, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Du Page County; the Hon. FREDERICK HENZI, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 26, 1979.

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.

• 1 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.) * * *" (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, ...


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