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07/08/87 In Re Marriage of Sondra M. Varco

July 8, 1987

IN RE MARRIAGE OF SONDRA M. VARCO, PETITIONER-APPELLANT,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

and ROSS D. VARCO, Respondent-Appellee

511 N.E.2d 736, 158 Ill. App. 3d 578, 110 Ill. Dec. 559 1987.IL.969

Appeal from the Circuit Court of Cook County; the Hon. Charles J. Grupp, Judge, presiding.

APPELLATE Judges:

JUSTICE WHITE delivered the opinion of the court. RIZZI, J., concurs. JUSTICE FREEMAN, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE

Petitioner Sondra Varco appeals an order denying her motion to vacate a judgment for dissolution of her marriage to respondent Ross Varco. She contends that the trial court erred in ruling on the motion without hearing testimony.

The parties, each represented by counsel and accountants, orally negotiated a property settlement and reduced their agreement to writing before the trial court on October 17, 1985. Petitioner and respondent both testified that they understood the terms of the settlement, that they considered those terms to be fair, and that they had entered into the agreement without duress. Judgment for dissolution, incorporating the settlement, was entered on November 7, 1985.

On November 14, 1985, petitioner filed a motion to vacate the judgment, alleging that she had negotiated the agreement under duress from respondent and his agents. Petitioner's supporting affidavit asserted that she had been intimidated by threatening and obscene phone calls, threatening notes left on the door of her home and on her daughter's car, and the presence of a suspicious car near her home on several occasions. The affidavit further stated that Donna Spilotro, a friend of both parties in this case, had informed petitioner that her husband, Dr. Pat Spilotro, was responsible for the threatening phone calls she received; that Mrs. Spilotro told petitioner, "My husband is carrying a grudge against you and feels justified in harassing you," and that Dr. Spilotro had told petitioner to "avoid problems" for herself and her husband by not making public their financial transactions with him. The affidavit also stated that Dr. Spilotro held petitioner responsible for the loss of gold and silver coins he had stored in the Varco home after his own home was destroyed by fire.

Petitioner subpoenaed Donna Spilotro and her daughter, Christine, to testify at the hearing on her motion to vacate. Respondent and the Spilotros, believing that petitioner regularly tape-recorded her conversations, filed motions for production of all tapes which included conversations with them. In addition, the Spilotros filed a motion to quash their subpoenas. On March 11, 1986, the trial court entered an order compelling petitioner to produce any tapes she had made of conversations with respondent or the Spilotros. Petitioner answered that she did not have any of the tapes demanded by the order.

The trial court heard arguments on the motions on April 8, 1986. At that hearing, counsel for petitioner clarified his client's answer to the court order; she asserted that she could not produce any tapes; she did not claim that no tapes existed. The court asked whether there had been such tapes and what had been done with them. Counsel for petitioner stated that his client invoked her fifth amendment privilege against self-incrimination and would not answer the question. The Spilotros then renewed their motion to quash; that motion was granted. Respondent asked that petitioner's motion to vacate the judgment be denied because of her failure to produce the tapes. Counsel for petitioner said that his client would withdraw her invocation of the fifth amendment if that invocation barred her motion.

The court denied the motion to vacate, initially stating that "fear and confusion is not a valid reason for failing to tell the Court what the situation is," and that petitioner should have raised her claim of duress at a prior hearing. The court later stated that petitioner's motion was denied "simply because she asserted Fifth Amendment privileges." Petitioner contends that the court's denial of her motion without a hearing was a denial of due process and an abuse of discretion. We disagree.

Petitioner's due process claim is ill-founded, since a failure to receive evidence does not constitute a denial of due process. (In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015.) We therefore focus on petitioner's claim that the trial court's failure to hold an evidentiary hearing was an abuse of discretion.

This court has long held that motions may be decided on the basis of affidavits alone. (Piper v. Reder (1966), 70 Ill. App. 2d 141, 217 N.E.2d 487; Dyke v. Petty (1916), 198 Ill. App. 414.) We have found an exception to that general rule and required an evidentiary hearing in cases where a motion to vacate and its supporting affidavits make allegations sufficient to create a material issue of fact. (In re Marriage of Giammerino (1980), 81 Ill. App. 3d 998, 401 N.E.2d 1048.) In the instant case, petitioner's motion and affidavit ...


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