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In Re Marriage of Milovich



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. GRUPP, Judge, presiding.


This appeal is taken from the trial court's judgment which dissolved the parties' marriage, awarded custody of the two minor children to petitioner (husband), apportioned the marital property, and determined the support, maintenance and attorney fees. Respondent raises several issues but her primary concern appears to be the custody award. In addition to alleging error with respect to custody, respondent contends that (1) the judge was biased against her and should have recused himself; (2) the court erred in refusing to allow her to substitute counsel or add four new attorneys to represent her during the trial; (3) the court awarded a disproportionate share of marital property to petitioner; and (4) the court's assessment of attorney fees against her was erroneous. Respondent further challenges the dissolution judgment as to grounds and argues that the court erred in barring her from receiving maintenance. Inasmuch as respondent waived the grounds issue and has since remarried, the question of grounds and maintenance is moot and we shall not consider it further.

Some of the facts in this case are bitterly disputed and argumentatively presented in appellant's brief. Indeed, petitioner-appellee filed a motion to strike portions of the brief for containing scurrilous material. We emphasize that we disregard irrelevant and inflammatory material in reaching our determination of the issues presented. Nevertheless, some of the comments and argument in appellant's brief are inaccurate, highly improper and far exceed the bounds of zealous advocacy. We express our disapproval to remind counsel that the first purpose of the appellate brief is to inform the court of the facts, objectively, and then to persuade the court of a particular application of the law to the facts. Our impartial review of the pending controversy, which encompasses almost 1500 pages of transcript, is not aided by the persistent inclusion of misleading statements. After sifting through the voluminous record, therefore, we summarize only those facts which are pertinent to the issues and are necessary for an understanding of this case.

On May 14, 1979, after approximately 12 years of marriage, petitioner filed a dissolution action, alleging that his wife was guilty of adultery and requesting various forms of relief. Respondent answered and counterpetitioned, denying the adultery allegations and alleging that petitioner was guilty of mental cruelty. On June 8, 1979, the court entered a temporary restraining order against both parties to prevent them from removing the children from the marital home and to prevent the dissipation or transfer of the parties' joint assets. Pursuant to an agreed order, the court directed the Department of Supportive Services to investigate and report on the home environment.

On April 21, 1980, trial began with the evidence regarding petitioner's grounds for dissolution. After petitioner rested the court ruled that he had established a prima facie case of adultery and that respondent could proceed with her defense and counterpetition. The court then adjourned. The hearing recommenced on May 15, 1980. At that time respondent's counsel informed the court that respondent would not interpose a defense to grounds because she was eager to proceed to the custody and property matters. *fn1

On May 16, 1980, the child custody hearing began. The court heard the testimony of 15 witnesses in six sessions over a five-month period. Petitioner's first witness was Dr. Dean Dauw, a clinical psychologist and published author with 15 years of experience in marriage counseling. He testified that he consulted with the parties 10 times between March 13 and May 8, 1976. Mrs. Milovich had told him of her wish to "better relate" to her daughter, Nicole, and her desire to have a "more effective career" than being a mother or a housewife. The doctor conducted psychological tests on the parties and concluded that respondent had certain needs which led her to be impatient with her daughter. The doctor prescribed a course of behavior for her which involved certain goals and a system of self-reward and punishment.

George Lebsock, petitioner's supervisor at the Chicago Housing Authority, next testified. He had known Peter Milovich for 20 years, at work as well as socially. He testified that on two occasions he had seen Peter display a concerned, responsive attitude toward the two Milovich children and that they also responded well to their father.

Dmitor Rakich, president of the congregation of petitioner's church, testified that he had known Peter for 30-35 years, through church activities. He testified that petitioner attended church regularly and brought the children to Sunday School. He thought that Peter exhibited more "warmth" toward them than had Mrs. Milovich. He stated his opinion that Mr. Milovich was the more responsible parent, although he admitted that he had only observed the mother 3-5 years ago for a few minutes during infrequent church social functions.

Mary Ann Anderson, the parties' neighbor for seven years, testified that she saw the parties regularly and had bowled with Mrs. Milovich. She had let the daughter, Nicole, come over to her house on occasional mornings to wait for the school bus when Mrs. Milovich was gone. She further testified that the children always appeared healthy, groomed, and happy. She had observed both parents with the children on different occasions.

Another neighbor and a friend of the parties, Mariangela Castrogiovanni, testified that she had seen both parents interact with their children. She related that Mrs. Milovich had told her that she would not have children if she had her life to live over again. Since the dissolution proceedings began, Mrs. Milovich had not socialized with any of the neighbors.

The next two witnesses were Mr. Milovich's niece and her 19-year-old friend. The friend described a ski trip that Mr. Milovich had taken the children on and stated that he was affectionate toward them. She further testified that she observed Mrs. Milovich kick her husband on March 3, 1980.

Peter Milovich's niece babysat for the children every other week from 1972-1977. On occasion she saw both parties discipline the children. The father spanked them and the mother sometimes dug her fingernails into their arms. She saw the mother kiss the children on the tops of their heads only. The children were more "physical" with their father, who played with them. In the niece's opinion, he was affectionate toward them but Mrs. Milovich was not.

Petitioner's sister, Sorka Lester, testified that she had enjoyed a good relationship with her brother's wife for several years but that they had not been on friendly terms for the last few years. She had talked to respondent approximately 6 months before the parties' marriage. At that time respondent expressed her feeling that she did not want to have children. Ms. Lester further testified that her brother would always check on the children when the families visited but that her sister-in-law rarely did so. She saw her brother help his children with their homework. On March 3, 1980, she observed respondent kick her brother and slam the door behind him.

Petitioner then called respondent to testify pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). She testified that she was presently living with her husband and children in a nine-room house in Palos Heights. There is a lock on her bedroom door for privacy. She works as a sales representative and until recently she was out of town for periods of several days, which totaled two weeks out of each month. When she was gone, Mr. Milovich took care of the children. She admitted that she had been found in contempt of court for violating the visitation order but stated that she had taken the children out of town on some of "his" weekends because he had not paid the support money and she believed that "one negated the other."

Regarding her conversations with Dr. Dauw, the psychologist, she stated that she had been having difficulties understanding Nicole during that period because she was confined to the house all day without adult company. Her relationship with the neighbors was somewhat distant because she felt they were critical of her. When she went bowling once a week, she took the children with her. She occasionally worked as a substitute teacher and modelled a few times. Respondent further testified that she may have told others that she was unhappy being pregnant but that if she did not want to have children she would not have. Mrs. Milovich further stated that her husband was "all right" as a father and that he enjoyed a good relationship with the children. She testified that she had flexible hours as a sales representative, working five days a week from approximately 8:30-4:30. She would leave Jason at a day-care center in the morning and generally pick him up after work. She also stated that she would prefer not to work if she had the choice but that she needed the money.

When the hearing recommenced on October 15, 1980, approximately two months after Mrs. Milovich had testified, the court heard her motion for leave to add additional counsel. Petitioner objected because he had been given no prior notice and because the motion came in the middle of trial. The court denied respondent's motion. Then petitioner's counsel, Mr. Blum, objected to the addition of Dr. Reuben Siegal to respondent's witness list. The children's attorney, Mr. Schultz, joined in the motion on the grounds that there was no issue regarding the parties' mental health. The court granted the motion to exclude Dr. Siegal as a witness.

Petitioner then testified on his own behalf. He had been employed by the Chicago Housing Authority for 20 years. He related an incident in which he had to break a chain on the door to get into the house because his wife was sleeping and the baby was crying. He further testified that his wife had been very upset after the birth of Nicole and, in the delivery room, screamed that she did not want the baby and hoped it was dead. He stated that he helped his wife feed the baby and change her diapers. He also described several incidents when Nicole or Jason were ill and he had taken care of them, even missing a day of work in one instance. He further testified that in 1976 his wife consulted with Dr. Dauw because of her trouble relating to the children. She often stated that she wanted to be "free."

After the dissolution proceedings began the parties' relationship deteriorated rapidly. They both continued to live in the marital home with Nicole and Jason. Petitioner testified that one night in June of 1979 he was prevented from eating with his family because his wife refused to set him a place and then threw his food out and called him a name. The next day when he again tried to eat with them she said she would poison him. These actions and threats, he testified, upset the children and made them cry. He stopped eating with the family after that. In January of 1980, his wife put a bolt on the door of the master bedroom. The nursery adjoined the bedroom and was only accessible through that door. When he arrived home from work the children would be herded up into the bedroom and he would be denied access to them except for the weekends that he had visitation rights.

Petitioner further testified that his wife's employment required her to be out of town approximately 73 days total, from January to September, 1980. His job never required him to travel out of Chicago and in an emergency he could go home. Finally, petitioner testified that his wife did not demonstrate affection toward the children and told them not to "mess up" her hair or dress. He, on the other hand, would hold them, carry them, and kiss and hug them.

After petitioner rested, respondent called as her first witness, her sister, Sally Ann Radick, a Pennsylvania attorney. She related that she had observed Mrs. Milovich on several occasions playing with the children and also observed affection between them and their mother.

A college student who works at the neighborhood pool next testified that he saw Mrs. Milovich bring the children there 2-3 times a week during 1980 and about once every two weeks during the summer of 1979. He never saw Mr. Milovich bring them.

Wayne Basch, associate pastor of a church, testified that he knew Mrs. Milovich from her work as a Brownie Scout leader. He also saw her occasionally at church services. He saw Jason and his mother when she dropped him off and picked him up at the day-care center located by the church. The pastor observed that the mother and son appeared to be close and responsive to each other. He had never met Mr. Milovich.

Respondent's mother, Mildred Radick, testified that she had taken care of the children at her daughter's request, approximately six times between January and May of 1980 when Mrs. Milovich was out of town on business. She stayed in the Milovich home with the children and Mr. Milovich for periods ranging from one to five days at a time. During her stays she would do the cooking and cleaning also. Mrs. Radick also testified that on occasions that she visited her daughter and son-in-law, her daughter was always the one who cooked and cleaned for the family. She had never seen Mr. Milovich help.

Mrs. Milovich testified on her own behalf. She is a technical representative and local salesperson for Perma Alloys. Presently, her job only requires her to travel during the day although prior to September 1980 she had to make overnight trips. In 1980 she was gone for a total of 56 days.

When she was in the recovery room following Nicole's birth she was groggy and tired. She testified that she did not ever reject having the baby in the room with her. She took care of the baby and all of the household chores. When Jason was born, she fed him most of the time, but Mr. Milovich sometimes gave him the midnight feeding. He would not change diapers but occasionally bathed Nicole.

Mrs. Milovich further testified that she was a Brownie Scout troop leader for 4 years, a Sunday School teacher for 3 years and took the children to church. She arranged and paid for Jason's day care, and took the children to their lessons and activities. Her husband rarely attended any recitals, plays, or special functions with or for the children. He did attend Indian Guides, a father-son activity, with Jason. In January of 1976 he was hospitalized for 4 days in the intensive care unit.

At the conclusion of this testimony the children were interviewed in chambers by the court with all counsel present. The judge told the children several times that they should not blame either parent but if they wanted to blame someone they should blame him. Nicole stated that she knew what it meant to tell the truth; she got along with Jason; she knew both parents loved her; she played games with both parents; both helped her with school work; and both parents were "fun." Jason also stated that he loved both parents and had fun with both of them. Nicole testified that she was told to "tell the truth" and that no one told her what to say. Jason said his dad would spank him if he were bad and his mom spanked him once with a leather belt. Nicole said her mom never spanked her but Jason said, "She bites your hair and pulls your hair." Nicole and Jason again stated that they had fun with both parents. The court sustained an objection to the children's counsel's question as to Nicole's preference of parents. When asked if there was anything else Nicole wanted to say that no one had asked, she replied, "No."

A caseworker for the Department of Supportive Services, Edlynne Sillman, testified regarding her assignment to the Milovich case. She had participated in 150 other investigations. She testified that she visited the Milovich home on September 11, 1979. At that time she interviewed both parties and the children. In addition, she spoke to several references over the telephone. She testified that the children appeared well-adjusted, relaxed, and comfortable with both parents, and that the parties were affectionate and spontaneous with the children. Mrs. Milovich had been home until May of 1979, when she found employment as a salesperson. Her hours were flexible and she usually left after the children were taken care of in the morning and returned by 4 p.m. Mr. Milovich's schedule was to leave for work at 7:30 a.m. and return home at about 6 p.m. She further testified that, in her conversation with petitioner, she learned that respondent had taken care of all domestic chores when she was home and that she still did all of the housework in addition to her job. Mr. Milovich further told Ms. Sillman that he could learn to take care of the house or hire a housekeeper if he had custody of the children. The caseworker was not allowed to give her opinion as to whom the custodial parent should be, or relate the substance of her conversations with anyone other than the parties.

The parties proceeded with closing arguments as to custody. Donald Schultz, the children's attorney, stated that both parents were decent people and their children, "extraordinary." He concluded, however, that since Nicole was reaching puberty, it was in her best interest to be in her mother's custody and that the two children should not be separated.

The court then ruled that after considering all of the relevant factors under section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 602), and all of the evidence, it would be in the best interests of the children to be placed in their father's custody. The judge stated that he had considered the wishes of the children and parents, the children's adjustment to home, school and community, and that he did not consider any conduct of either parent that did not affect their relationship with the children. He noted that Mrs. Milovich is entitled to pursue her own career, but that the children were entitled to a stable environment. In a written order of October 28, 1980, the court reiterated and elaborated on its findings, concluding that Peter Milovich was better able to provide a stable environment. The court thus awarded him custody, with liberal visitation to the mother.

On October 24, 1980, four additional attorneys for respondent appeared in court, Messrs. Douglas Polsky, Joel S. Ostrow, J. Scott Bonner, and Alan Rugendorf. Robert Karton, who had only the previous day received notice of their petition for leave to appear, then asked the court for leave to withdraw as respondent's counsel and to substitute the four new attorneys. Petitioner's counsel objected and the matter was continued. On November 10, 1980, the court heard argument of counsel and allowed Mrs. Milovich to testify. She stated her preference for the new attorneys and her refusal to pay Karton for any services on her behalf after the date of the hearing in substitution of attorneys. She also stated that she lost faith in him after the hearing on the grounds for dissolution. The trial court then denied her petition, noting ...

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