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In Re Marriage of Sheber

OPINION FILED JANUARY 20, 1984.

IN RE MARRIAGE OF OLIVE SHEBER, PETITIONER-APPELLEE, AND JAMES SHEBER, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Marion E. Burks, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 28, 1984.

Respondent appeals from the denial of his motion to vacate the final judgment entered in an action for dissolution of marriage. He contends that the trial court abused its discretion in (1) refusing to set aside the default judgment entered against him; (2) failing to (a) bifurcate the proceedings as required by section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 403(e)), or (b) provide additional notice to him pursuant to section 405 of that Act (Ill. Rev. Stat. 1981, ch. 40, par. 405); (3) failing to fairly apportion the marital property; and (4) requiring him to pay maintenance.

The parties were married on June 19, 1965, and had three children: Carolyn, born May 11, 1966; Andy, born July 27, 1968; and Laura, born May 12, 1975. Petitioner, 41 years old, is employed as a housekeeper and earns approximately $140 per week. Respondent, 45 years old, is a mechanical design engineer and earned $22,000 per year until he was discharged from his employment on August 12, 1982. He was unemployed at the time of trial.

Petitioner filed her petition for dissolution of the marriage on July 21, 1980, alleging extreme and repeated physical and mental cruelty on respondent's part, and seeking custody of the children, maintenance and child support, sole ownership of the marital home, and an equitable distribution of the remainder of the marital property. Respondent denied the allegations, and it appears from the record that he filed a counterpetition, but no copy thereof has been provided on appeal. Trial of this action did not take place until September 8, 1982, and a summary of some of the proceedings which caused the delay is pertinent to the issues before us:

July 29, 1980: Petitioner is granted exclusive possession of the marital home pending a final hearing, and respondent is directed to pay 40% of his net income as temporary unallocated maintenance and child support for 120 days.

February 18, 1981: On petitioner's motion, respondent's visitation with the children is restricted, and a guardian ad litem (the guardian) is appointed; the matter of visitation rights is continued several times by agreement, to afford the guardian an opportunity to interview all parties.

May 5, 1981: The order for temporary unallocated family support is reinstated on motion of petitioner, and she is granted a judgment for $381 in arrearages.

July 21, 1981: By agreement, the matter is set for trial on October 26, 1981.

July 22, 1981: Respondent's attorney withdraws. Substituted counsel is not secured until December 15, 1981.

October 26, 1981: Trial is reset for January 12, 1982, and respondent is directed to cooperate in preparation of the pretrial memorandum.

December 15, 1981: Substituted counsel files his appearance for respondent, and an extension of time is granted to enable him to become familiar with the case.

December 17, 1981: Petitioner moves for sanctions because respondent failed to comply with the October 26 order to cooperate. Respondent does not appear.

December 28, 1981: Respondent's response and counterpetition are stricken as sanctions. Respondent fails to appear.

January 5, 1982: The December 28 order is vacated, and respondent is ordered to pay a sum to petitioner's attorney as a sanction. Trial is rescheduled for February 22, 1982, at respondent's request.

January 19, 1982: After in camera interviews with the children, at which all parties are represented by counsel, the court restricts respondent's visitation rights and orders ...


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