Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In Re Marriage of Cummins

OPINION FILED MAY 4, 1982.

IN RE MARRIAGE OF DIANA CUMMINS, PETITIONER-APPELLANT, AND JOHN CUMMINS, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Kane County; the Hon. RICHARD WEILER, Judge, presiding. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Whether there is an absolute right to a change of venue upon the filing of any successive post-decree petition to modify support provisions of a decree of dissolution of marriage alleging changed conditions, is the question here involved.

The petitioner (wife) obtained a dissolution of marriage on November 14, 1980. The decree entered by Judge Weiler required the respondent (husband) to pay child support of $60 per week for each of the two minor children of the parties. The same judge entered an order on January 14, 1981, reducing the payment to $50 per week based on his finding that there had been a decrease in the husband's 1980 earnings. The wife remarried on January 30, 1981. On February 20, 1981, the husband filed a motion for a reduction of child support "based upon a change of financial circumstances," and asking the court to consider that the new husband was living in the marital home and paying some of the expenses thereof.

On February 26, 1981, the wife filed a motion for a change of venue from Judge Weiler alleging that he was prejudiced against her and also filed a motion to dismiss the petition for reduction.

On the same date, Judge Weiler, after a hearing, entered an order denying the wife's motion for a change of venue and continued the hearing on all pending matters to March 3, 1981, later scheduling the hearing for April 3, 1981.

On April 3, 1981, the wife filed a petition for rule to show cause and orally moved for a change of venue with regard to her petition. On the same day the court entered an order denying the motion for a venue change and denying the husband's petition for reduced child support because of his financial condition, but reserving the issue of reduction in child support and other relief based upon the wife's remarriage.

On the continued date for the hearing on all pending matters, April 7, 1981, the wife again filed a motion for change of venue for the petition for rule to show cause, alleging that Judge Weiler was prejudiced against her. On the same date the judge entered an order reducing child support payments to $37.50 per child per week because of the wife's changed financial condition resulting from her remarriage. The order also denied the wife's April 7 motion for change of venue, finding no showing of prejudice. The wife appeals from the orders of April 3 and April 7, contending that the trial judge improperly denied her motion for change of venue and, alternatively, that he abused his discretion in reducing child support payments.

The venue act provides that as pertinent:

"501. Causes for change of venue

§ 1. A change of venue in any civil action may be had in the following situations:

(2) Where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because the inhabitants of the county are or the judge is prejudiced against him, or his attorney, or the adverse party has an undue influence over the minds of the inhabitants. In any such situation the venue shall not be changed except upon application, as provided in this Act, or by consent of the parties.

503. Petition — Verification — Time for presentation

§ 3. Every application for a change of venue by a party or his attorney shall be by petition, setting forth the cause of the application and praying a change of venue, which petition shall be verified by the affidavit of the applicant. A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds." Ill. Rev. Stat. 1979, ch. 110, pars. 501, 503 (formerly ch. 146, pars. 1, 3).

• 1-4 Particularly where prejudice on the part of the judge is alleged, these provisions are to be liberally construed in order to effect rather than defeat a change of venue. (Rosewood Corp. v. Transamerica Insurance Co. (1974), 57 Ill.2d 247, 251.) The trial judge has no discretion as to whether the change will be granted if a proper and timely petition is filed and cannot inquire as to the truthfulness of the allegations of prejudice. (57 Ill.2d 247, 251.) The motion need not specify the basis of the charge of prejudice; a general allegation of a suspicion of prejudice is sufficient. (American State Bank v. County of Woodford (1977), 55 Ill. App.3d 123, 128.) The motion is timely if filed before the hearing has begun or the judge has ruled on a substantive issue in the case. (Templeton v. First National Bank (1977), 47 Ill. App.3d 443, 447.) Any order entered after an improper denial of a change of venue is void. Sansonetti v. Archer Laundry, Inc. (1976), 44 Ill. App.3d 789, 798.

• 5-7 Preliminarily, the husband argues that the wife has never appealed the February 26 order denying her motion for change of venue and that the orders of April 3 and 7 denied request for a change of venue only with regard to her petition for rule to show cause. However, an order granting or denying a change of venue is not a final order and is not otherwise appealable. (City of Chicago v. Airline Canteen Service, Inc. (1978), 64 Ill. App.3d 417, 428.) The wife therefore did not waive her right to a venue change by not appealing the non-appealable order of February 26. If she was entitled to a change of venue she was entitled to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.