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06/30/87 In Re Marriage of Maurice W. Birt

June 30, 1987

IN RE MARRIAGE OF MAURICE W. BIRT, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

SARAH ANN BIRT, Respondent-Appellant

510 N.E.2d 559, 157 Ill. App. 3d 363, 109 Ill. Dec. 691 1987.IL.944

Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Cox, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. UNVERZAGT and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Sarah Ann Birt, respondent, appeals from a supplemental judgment entered by the circuit court of Du Page County disposing of the remaining issues subsequent to the entry of an order dissolving her marriage to Maurice W. Birt, petitioner.

Respondent raises numerous issues on appeal. The first issue raised, which we find to be dispositive of this appeal, is whether the trial court erred in denying her petition for change of venue. The other issues are whether the trial court erred in awarding the parties joint custody of their four children; whether the trial court erred in valuing petitioner's business by allowing financial evidence and expert testimony which could not be tested due to petitioner's noncompliance with discovery and by permitting testimony of non-current valuation by unqualified witnesses; whether the trial court erred in not considering petitioner's medical degree or practice as a marital asset; whether the maintenance and child support ordered were inadequate; whether the trial court erred in concluding that respondent had dissipated marital assets; whether the trial court erred in quashing a subpoena for deposition of one of petitioner's employees; whether the trial court erred in barring respondent and her counsel from discussing the case during trial; and whether the trial court erred in precluding petitioner from making an offer of proof regarding prior proceedings between the parties.

We set forth only the proceedings and facts necessary to our resolution of the case. Petitioner filed a petition for dissolution of marriage on December 21, 1984. On May 28, 1985, a judgment of dissolution of marriage was entered which reserved all issues other than grounds. As part of discovery, respondent subpoenaed Margaret Dunne and Nicki Melnick, among others, for depositions. On July 30, 1985, Margaret Dunne, through petitioner's attorney, filed a motion to quash the subpoena with an attached affidavit. She stated that she was an occasional social friend of petitioner's, but that she had no knowledge, information or documents pertaining to the proceeding and that the subpoena had been issued to her solely for purposes of harassment. Nicki Melnick, also through petitioner's counsel, filed a motion for a protective order stating that her deposition had been taken in a prior dissolution proceeding which was dismissed upon respondent's motion, and that she had no documents in her possession pertaining to the parties' affairs. She requested that the portion of the subpoena commanding her to produce personal documents be quashed and that the scope of the discovery deposition be limited to the period subsequent to her prior deposition.

Although Judge S. Keith Lewis had been assigned to the case and had entered the previous orders in the case, in his absence Judge Robert A. Cox heard arguments on the motions July 30, 1985. Judge Cox granted Margaret Dunne's motion to quash the subpoena and denied Nicki Melnick's motion for a protective order, but ordered that respondent's attorney could only inquire into matters not fully covered in the prior deposition.

Trial was set for December 4, 1985, by Judge Lewis. Respondent filed a motion to reschedule the trial date and for an order compelling compliance with discovery. Because of an apparent reassignment of Judges in the Eighteenth Judicial Circuit, the parties appeared before Judge Philip J. R. Equi on December 5, 1985. Judge Equi recused himself on that date, and the cause was transferred to Judge Cox. On December 10, 1985, respondent filed a petition for change of venue as a matter of right. The petition stated that the cause had been reassigned to Judge Cox and that respondent feared and reasonably believed that Judge Cox was prejudiced against her. She further stated that Judge Cox had not ruled on any substantial issues in the case and that she had not filed any previous petitions for change of venue.

A hearing was held on the petition. Petitioner argued that it was too late for respondent to assert a general claim of prejudice as she had appeared before Judge Cox previously and requested relief. The petition was denied and trial was set for January 29, 1986.

The parties were married in 1966 and four children were born of the marriage. Petitioner's attorney, on two occasions, stated that custody was not an issue in the case and, during his closing argument, stated that the children should be in the custody of their mother.

It is unnecessary to set forth the testimony at trial in view of our decision on the change of venue issue. Following trial, a written judgment disposing of the remaining issues was entered on March 17, 1986. Among these, the trial ...


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