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In Re Marriage of Pillot

OPINION FILED JUNE 30, 1986.

IN RE MARRIAGE OF DOROTHY PILLOT, PETITIONER AND COUNTERRESPONDENT AND INTERVENOR-DEFENDANT AND APPELLEE, AND RALPH PILLOT, RESPONDENT AND COUNTERPETITIONER AND INTERVENOR-PLAINTIFF AND APPELLANT (ARLENE SCHWANDT, INTERVENOR-PLAINTIFF AND APPELLEE).


Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

This is a consolidated appeal brought by respondent, Ralph Pillot, from the judgment of dissolution of marriage entered in favor of petitioner, Dorothy Pillot, and intervenor, Arlene Schwandt; the subsequent order reducing petitioner's child-support payments and assessing intervenor's attorney fees against respondent; and the order denying respondent's petitions for reconsidering the distribution of assets. On appeal, respondent contends that: (1) the trial court erred by: (a) denying his motion for a continuance prior to commencement of trial, (b) refusing to allow respondent to contest the grounds proceedings, (c) determining the amount of past-due child-support and mortgage payments, (d) reducing the amount of child support to be paid by petitioner, (e) assessing respondent with the intervenor's attorney fees, (f) allowing petitioner to remain as beneficiary on respondent's life insurance policies; and (2) the cumulative errors which occurred throughout the dissolution proceeding denied respondent his right to a fair trial. For the reasons that follow, we affirm the judgment of the trial court.

The record reveals the following facts pertinent to this appeal. The parties were married on September 26, 1964, and had two children. On April 13, 1981, petitioner filed her petition for dissolution of the marriage, alleging extreme and repeated mental and physical cruelty. On May 15, 1981, respondent filed an answer denying the allegations and a counterpetition for dissolution of the marriage. Originally, both parties requested temporary and permanent custody of the children. In an order entered May 15, 1981, the court enjoined the parties from dissipating assets and harming each other and ordered that each party contribute $800 per month toward maintenance of the marital residence, in which both parties continued to reside.

On July 13, 1981, petitioner moved out of the marital residence. As a result, on August 24, 1981, the court entered an order which reduced petitioner's monthly maintenance payment to $500, retroactive to the date she moved out of the marital home; awarded physical possession of the children to respondent, and custody to both parties. Subsequently, on January 18, 1982, the court entered an order which modified the monthly payment portion of the August 24, 1981, order so that petitioner was obligated to pay 27% of her net income for child support plus one-half of the mortgage, insurance and taxes on the marital residence. The order was retroactive to August 24, 1981. Petitioner's obligations to contribute toward maintenance of the marital residence ceased as of the date of the order. However, the obligation of child-support payments continued. On December 8, 1982, the trial court granted Arlene Schwandt's petition to intervene in the dissolution proceedings which sought an equitable mortgage or lien upon the marital residence, on the ground that she allegedly had an outstanding loan with petitioner and respondent, secured by the marital residence.

After numerous continuances, on May 27, 1983, four days before trial was scheduled to commence, Fred Aprati, counsel for respondent, requested and was granted leave to withdraw. Thereafter, on May 31, 1983, David Levy was granted leave to file his appearance on respondent's behalf, but was denied his request for a continuance in order to prepare for trial. On the morning of June 3, 1983, the day trial actually commenced, respondent again requested and was denied a continuance. The court ordered that prove-up of the grounds and evidence on intervenor's claim would commence later that afternoon. Although respondent was in attendance at the morning proceedings when his continuance was denied, he did not appear during the afternoon. Following testimony as to grounds, the court found that grounds had been proved by petitioner and a judgment of dissolution would be entered. Subsequently, testimony commenced on the intervenor's claim and was continued to June 16, 1983.

Meanwhile, on June 10, 1983, David Levy requested and was granted leave to withdraw as respondent's attorney. On June 16, 1983, the trial court granted John Bresingham's motion for leave to file his appearance on respondent's behalf, but denied his motions to vacate the dissolution proceedings of June 3, 1983, and for a continuance. The trial continued and on December 16, 1983, the judgment for dissolution of marriage was entered, which: (1) granted custody of the children to respondent; (2) granted an equitable mortgage or lien on the marital residence to intervenor; (3) divided the marital assets; (4) ordered the marital residence to be sold and the proceeds to be apportioned as stated by the court; (5) determined an arrearage due respondent from petitioner; (6) denied maintenance to either party; and (7) ordered petitioner to pay $528 per month in child support. Subsequently, respondent moved for reconsideration and petitioner moved for modification of the child-support order, alleging extreme alienation of her children caused by respondent's conduct.

Following hearings on the motions, the trial court entered an order which: (1) reduced the child support payment to $350 per month until the older child reaches age 18 and then to $250 per month until the younger child reaches age 18; (2) assessed intervenor's attorney fees against respondent; (3) found no arrearage in support for the period between July 13, 1981, and August 24, 1981; and (4) ordered that arrearage in support shall be paid out of the proceeds of the sale of the marital residence. Subsequently, upon respondent's petition, the court modified the arrearage-payment provision, stating that the arrearage was to be paid out of petitioner's share of the proceeds of the marital residence. Respondent's appeal followed.

Respondent first contends that the trial court erred in denying his request for a continuance when his new counsel had not had sufficient time to prepare for trial and discovery had not been completed. Further, respondent asserts that commencement of the June 3, 1983, proceeding in his absence was an infringement of his due process rights. As stated, petitioner filed her petition for dissolution on April 13, 1981. The record indicates that trial was set originally for October 8, 1981, and was continued 11 times to May 31, 1983. On May 27, 1983, four days before trial was to commence, respondent's counsel, Fred Aprati, requested and was granted leave to withdraw. Aprati's petition specifically stated, inter alia, that he had been "contacted by Ralph Pillot who stated that he no longer wished [Aprati's] services and that he wished [Aprati] to withdraw." The petition further stated, "that there was an obvious conflict of personalities that would prevent the undersigned from effectively representing Ralph Pillot."

Subsequently, on May 31, 1983, the law firm of Feiwell, Galper and Lasky, Ltd., filed its appearance on respondent's behalf and moved for a continuance. The motion was denied and the trial date was set for June 3, 1983, at which time respondent filed an emergency motion for a continuance, alleging that his counsel was on trial; lacked time to prepare; and that a deposition had not been completed. The motion was denied and trial on the grounds and intervenor's claim was set to commence later that afternoon.

• 1 It is well established that a motion for a continuance not based on statutory causes is addressed to the sound discretion of the trial court, and the exercise of that discretion will not be disturbed absent evidence of a manifest abuse of discretion or a palpable injustice. (Benton v. Marr (1936), 364 Ill. 628, 5 N.E.2d 466; Thomas v. Thomas (1974), 23 Ill. App.3d 936, 321 N.E.2d 159; Reecy v. Reecy (1971), 132 Ill. App.2d 1024, 271 N.E.2d 91.) Further, substitution of attorneys at the commencement of trial does not constitute good cause for the granting of a continuance (In re Marriage of Yakin (1982), 107 Ill. App.3d 1103, 436 N.E.2d 573), and the denial of further continuances in cases that have been pending for a long period of time and in which numerous continuances have been granted has consistently been upheld in an effort to thwart dilatory tactics (Leathers v. Leathers (1958), 13 Ill.2d 348, 148 N.E.2d 773). Moreover, even if the denial of a continuance is found to be erroneous, it does not constitute denial of due process. In re Marriage of Yakin (1982), 107 Ill. App.3d 1103, 436 N.E.2d 573.

In the present case, despite respondent's contentions to the contrary, the record supports petitioner's argument that Aprati's withdrawal as respondent's counsel was done at respondent's request. Consequently, respondent cannot now claim surprise or deprivation of rights as the result of his voluntary action. Similarly, with respect to the retention of new counsel, in our view it was incumbent upon respondent to ascertain his new counsel's availability to commence trial as scheduled.

• 2 In support of his position, respondent relies on Reecy v. Reecy (1971), 132 Ill. App.2d 1024, 271 N.E.2d 91, Sobina v. Busby (1965), 62 Ill. App.2d 1, 210 N.E.2d 769, and Neboshek v. Berzani (1963), 42 Ill. App.2d 220, 191 N.E.2d 411. In our opinion, his reliance is misplaced. In Reecy, the court specifically found that plaintiff's counsel had requested leave to withdraw on his own motion and that plaintiff had not voluntarily changed counsel. In our case, withdrawal was at respondent's request. In Sobina, the reviewing court held that the trial court had erred in refusing to grant defendant a continuance to take a deposition when the parties had expressly stipulated that depositions were to be taken. Similarly, in Neboshek, the court held that a continuance should have been granted based upon the parties' agreement that plaintiff would secure a continuance in defense counsel's absence so that defendant could file a counteraffidavit. There is no evidence of such stipulations or agreements in our case. Accordingly, we conclude that the trial court properly denied respondent's motions for continuance.

• 3 Respondent next contends that the trial court further violated his right to due process by preventing him from contesting the grounds during the afternoon proceedings on June 3, 1983. Respondent maintains that he was unaware that the proceedings on the grounds were to commence that afternoon and that he had never signed a pretrial order stating that the grounds were uncontested. We find respondent's argument unpersuasive.

The record is clear that respondent was present in court on the morning of June 3, 1983, when his emergency motion for a continuance was denied and the trial court ordered that proceedings on the grounds and intervenor's claim would commence at 2:15 p.m. that afternoon. Thus, respondent cannot now claim deprivation of ...


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