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04/09/87 In Re Marriage of Mary E. Dunn

April 9, 1987

IN RE MARRIAGE OF MARY E. DUNN, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

HARVEY K. DUNN, Respondent-Appellant

508 N.E.2d 250, 155 Ill. App. 3d 247, 108 Ill. Dec. 89 1987.IL.461

Appeal from the Circuit Court of Coles County; the Hon. Joseph R. Spitz, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. BARRY, P.J., and WOMBACHER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

In October 1984, the petitioner again refused to allow the respondent to visit the child. The respondent filed a second petition for rule to show cause. The petitioner responded with the same defense as to the first petition, that the respondent had sexually molested the child in late December 1983. In addition, the petitioner filed a motion to terminate visitation. After the hearing on the motion to terminate visitation and the petition for rule to show cause, the trial court found that the respondent had sexually abused the child and terminated his rights of visitation. The respondent appeals the ruling on several grounds. We reverse.

We will first address the respondent's argument that the trial court erred in granting the motion to terminate visitation because it was barred by the doctrine of res judicata. The respondent contends that the trial court's decision to deny his first petition for rule to show cause, wherein the court stated that it was not convinced that the respondent was guilty of sexually abusing his daughter in late December 1983, barred the subsequent hearing on the motion to terminate visitation, wherein the petitioner alleged that the respondent had sexually abused the child in late December 1983.

The principle that underlies the doctrine of res judicata is that "the court will not relitigate a matter which has been previously determined in an action between the same parties." (Ohio National Life Insurance Co. v. Board of Education (1944), 387 Ill. 159, 166, 55 N.E.2d 163, cert. denied (1945), 323 U.S. 796, 89 L. Ed. 635, 65 S. Ct. 439.) The doctrine of res judicata is two-pronged, and the respondent seeks to impose both prongs as a bar to the motion to terminate. The first prong is the doctrine of estoppel by judgment. When a cause of action has been litigated in a court of competent jurisdiction to a final judgment on the merits, the parties to that action are thereafter estopped from relitigating in a subsequent action, not only issues which were in fact raised and decided in the prior action, but also all other issues which might have been raised in the prior action. (City of Evanston v. G & S Mortgage & Investment Corp. (1973), 11 Ill. App. 3d 642, 297 N.E.2d 331.) This doctrine requires that there be an identity of parties, subject matter and cause of action between the two actions. O'Neill v. DeLaney (1980), 92 Ill. App. 3d 292, 415 N.E.2d 1260.

We do not believe that the hearing on the motion to terminate visitation was barred by the doctrine of estoppel by judgment. Though the parties were identical, neither the identity of the subject matter nor identity of the cause of action requirements were met. In the respondent's first petition for rule to show cause, the subject matter was the denial of visitation rights by the petitioner and the petitioner's state of mind as to why she denied those rights. The subject matter of the motion to terminate visitation was whether the respondent had sexually abused his daughter. With reference to the requirement that there be identity between the causes of action, the test is "whether there is identity of facts essential to the maintenance of both cases." (Village of Northbrook v. County of Cook (1980), 88 Ill. App. 3d 745, 750, 410 N.E.2d 925.) Here, the evidence needed to sustain the petitioner's defense to the initial petition for rule to show cause was not the same evidence needed to sustain her petition to terminate visitation. To defend the first petition for rule to show cause, and avoid a finding of contempt, the petitioner had to demonstrate to the court that her conduct in disallowing visitation was not wilful and contumacious. Her state of mind was at issue. In order to prevail on the motion to terminate visitation, she had to convince the trier of fact that the sexual abuse had in fact occurred, and that the abuse seriously endangered the child's physical, mental, moral or emotional health. Ill. Rev. Stat. 1985, ch. 40, par. 607.

The second prong of res judicata is the doctrine of collateral estoppel. When, in a subsequent action on a different cause of action between the parties to a prior action, there arises an issue which was in fact raised and decided in the prior action, then the parties to the subsequent action are estopped by the verdict in the prior action from relitigating that issue. (City of Evanston v. G & S Mortgage & Investment Corp. (1973), 11 Ill. App. 3d 642, 297 N.E.2d 331.) Even assuming that the issue of whether the respondent had sexually abused his daughter was raised in the hearing on the first petition for rule to show cause, it was not finally decided by the court. The court simply denied the petition on the ground that the petitioner had not acted contemptuously.

The respondent next attacks several evidentiary rulings made during the course of the hearing on the second petition for rule to show cause and motion to terminate visitation. The nature of the evidentiary issues necessitates a review of the petitioner's case in chief.

The petitioner offered the testimony of several witnesses who recounted statements made by the child concerning the alleged sexual abuse. The first witness was Dorothy Jordan, the child's kindergarten teacher. Ms. Jordan reported that in the spring of 1985, more than a year after the alleged occurrence, the child stated during a general class Discussion, "my daddy put his finger in my bottom." Another witness was Eva Metcalf, the child's maternal grandmother. Mrs. Metcalf testified that in May of 1985, one year and five months after the alleged occurrence, the child told her grandmother that the respondent "sticked his finger in my front bottom end and it hurt." The next witness was Martha Carter. Ms. Carter is a child adolescent therapist. She has a bachelor's degree in social work and a master's degree in educational guidance and counseling. She observed and visited with the child on five different occasions, beginning 10 months after the alleged occurrence, at the request of the petitioner's counsel. At trial, Ms. Carter related several statements made by the child during these visits concerning the alleged sexual abuse. Finally, the petitioner herself related an occurrence that took place in October 1984, 10 months after the alleged occurrence. At that time, the petitioner was conversing with the child in the child's bedroom when the child started making gasping noises. When asked where and when she had heard that noise, the child responded, "At my Daddy's," and "Last Christmas." According to the petitioner, the respondent was making the noise "while he was sticking his finger in her bottom." When she asked what he was doing with his other hand the child said, "He was touching his own front bottom." The petitioner also related a previous incident of alleged sexual abuse committed on the child by the father, prior to the judgment of dissolution.

Since the child was found incompetent to testify in this matter and thus not subject to cross-examination, counsel for the respondent objected on hearsay grounds to all of the above testimony. An out-of-court statement offered for the truth of the matter asserted therein is hearsay and is inadmissible unless it meets one of the exceptions to the hearsay rule. (Galindo v. Riddell, Inc. (1982), 107 Ill. App. 3d 139, 437 N.E.2d 376.) The rule against hearsay evidence, that a witness can testify only as to facts within his personal knowledge and not as to what somebody else told him, is founded on necessity of opportunity for cross-examination, and is a basic, not a technical, rule. (Novicki v. Department of Finance (1940), 373 Ill. 342, 26 N.E.2d 130.) Despite counsel's objections, however, the trial Judge allowed the testimony in reliance on this court's decision of In re Marriage of Theis (1984), 121 Ill. ...


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