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In Re Marriage of Perkinson

OPINION FILED SEPTEMBER 24, 1986.

IN RE MARRIAGE OF TERRY RAY PERKINSON, PETITIONER, AND BILLIE JEAN PERKINSON, RESPONDENT-APPELLEE (MID-AMERICA TRANSPORTATION COMPANY, INTERVENOR-APPELLANT).


Appeal from the Circuit Court of Calhoun County; the Hon. Lyle E. Lipe, Judge, presiding.

JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:

Intervenor, Mid-America Transportation Company (Mid-America), appeals from the denial of its petition for intervention and from an order setting aside a judgment of dissolution of marriage.

At the onset we note that Mid-America's motion to supplement the record on appeal is allowed pursuant to Supreme Court Rule 366(a)(3) (87 Ill.2d R. 366 (a)(3)).

The pertinent facts are as follows. Petitioner, Terry Ray Perkinson, and respondent, Billie Jean Perkinson, were married on October 23, 1976. Two children were born of this marriage.

On December 28, 1984, petitioner filed a petition for dissolution of marriage in the circuit court of Calhoun County. Grounds for the dissolution were alleged as follows: "that without fault or provocation on the part of the petitioner, the respondent has been guilty of extreme and repeated mental cruelty." On May 3, 1985, a hearing was held on the petition for dissolution of marriage. Respondent failed to personally appear. In general, petitioner's testimony concerned respondent's drug habit, her misuse of his wages, and her poor care of the children. After a hearing, the trial court entered an order which stated that petitioner "has grounds for the dissolution of marriage and the marriage is dissolved."

On May 14, 1985, a hearing was held on remaining issues of child custody, visitation, division of property, and maintenance. By agreement of the parties, petitioner was awarded permanent custody of the minor children and respondent agreed to quitclaim her interest in the marital residence to petitioner. The terms of this agreement were subsequently incorporated with the previous order of dissolution, resulting in a final written judgment of dissolution, which was entered June 7, 1985. This judgment stated the following grounds for dissolution: "without fault or provocation on the part of the petitioner the respondent has been guilty of extreme and repeated mental cruelty."

Then on June 24, 1985, petitioner drowned while working as a deckhand on board a tug owned by Mid-America Transportation Company.

On July 1, 1985, respondent filed petitions to set aside the judgment of dissolution of marriage and for custody of the minor children. That day, an order was entered, awarding respondent temporary custody of the children. On July 11, 1985, Theresa Perkinson, petitioner's sister, filed an answer to the petition to set aside the judgment of dissolution and a petition for custody of the children. Following a hearing on September 12, 1985, the trial court found that Theresa Perkinson did not have standing to participate in the cause of action.

On October 24, 1985, the trial court appointed Theresa Perkinson's attorney as special administrator for the sole purpose of defending against the petition to set aside judgment of dissolution. A hearing was then held on the petition. Subsequently, on December 30, 1985, the trial court entered an order setting aside the judgment of dissolution, which stated: "the court upon reflection finds that the Petitioner Terry Ray Perkinson failed to prove the grounds of repeated mental cruelty."

On January 21, 1986, Mid-America, petitioner's former employer, filed a petition for intervention (Ill. Rev. Stat. 1985, ch. 110, par. 2-408) and a motion for reconsideration of the order setting aside the judgment of dissolution (Ill. Rev. Stat. 1985, ch. 110, par. 2-1301(e)). Mid-America's petition for intervention alleged that it had an interest in the proceedings because the setting aside of the judgment of dissolution would allow respondent to pursue a claim against Mid-America under the Jones Act (46 U.S.C. § 688 et seq. (1982)) and general maritime law. The trial court denied this petition finding "Mid-America's interest if any was adequately protected by Terry Ray Perkinson and by the Special Administrator appointed in this case." The motion for reconsideration was not ruled upon.

On January 27, 1986, the special administrator filed a notice of appeal from the order setting aside the judgment of dissolution. On January 29, 1986, Mid-America filed its notice of appeal from the aforementioned order and from the denial of its petition for intervention. These two appeals were consolidated. Thereafter, the special administrator and respondent "satisfied their claims," and that appeal was dismissed. Thus, the prior consolidation was vacated, leaving only Mid-America's appeal.

The first issue on appeal is whether Mid-America's petition for intervention was erroneously denied. Mid-America's petition requested either intervention of right (Ill. Rev. Stat. 1985, ch. 110, par. 2-408(a)), or permissive intervention (Ill. Rev. Stat. 1985, ch. 110, par. 2-408(b)). The circuit court denied the petition, reasoning that Mid-America's "interest if any was adequately protected by Terry Ray Perkinson and by the Special Administrator appointed in this case." Mid-America now appeals from that ruling, arguing that it had a right to intervene in the action to oppose the overturning of the judgment of dissolution.

We note, preliminarily, that Mid-America advances only an "intervention of right argument" on appeal. In neither its main brief or reply does Mid-America argue that it was entitled to permissive intervention. As this point was not argued, it is waived on appeal pursuant to Supreme Court Rule 341(e)(7) (103 Ill.2d R. 341(e)(7)).

• 1 Generally, courts have held that intervention is a matter within the sound discretion of the trial court and its judgment will not be reversed absent a clear abuse of discretion. (E.g., In re Application of Bashore (1982), 109 Ill. App.3d 396, 440 N.E.2d 936; University Square, Ltd. v. City of Chicago (1979), 73 Ill. App.3d 872, 392 N.E.2d 136.) One court has recently stated that intervention of right should be distinguished from permissive intervention insofar as the exercise of discretion is concerned. (City of Chicago v. John Hancock Mutual Life Insurance Co. (1984), 127 Ill. App.3d 140, 468 N.E.2d 428.) That court indicated that the trial court's discretion with regard to intervention of right ...


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