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12/03/87 In Re Marriage of Bates (James H. Stacke

December 3, 1987

IN RE MARRIAGE OF BATES (JAMES H. STACKE, EX'R OF THE


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Estate of George A. Bates, Plaintiff-Appellant, v.

Mary Luise Bates, Defendant-Appellee)

517 N.E.2d 23, 163 Ill. App. 3d 893, 115 Ill. Dec. 58 1987.IL.1777

Appeal from the Circuit Court of McHenry County; the Hon. Haskell M. Pitluck, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Plaintiff, James H. Stacke, executor of the estate of George A. Bates, appeals from a judgment of the circuit court of McHenry County which granted defendant's motion to vacate judgment of dissolution and abated this cause of action due to the death of George Bates, except for the remaining issues of child support, attorney fees, and a rule to show cause.

On appeal plaintiff raises five issues, namely, that (1) the appellate court mandate directed the trial court to enter immediately a bifurcated judgment of dissolution; (2) the trial court erred when it violated the mandate by vacating the bifurcated judgment of dissolution; (3) res judicata bars defendant from relitigating the bifurcation issue in this appeal; (4) defendant waived her objection to the entry of a bifurcated judgment by failing to raise the issue in her petition for leave to appeal to the supreme court; and (5) the proceedings did not abate by reason of the death of George A. Bates.

On April 30, 1980, George A. Bates (George) filed for dissolution of marriage on the grounds of mental cruelty. Defendant, Mary Luise Bates (Mary), to whom George had been married for four years, denied the allegation of mental cruelty and filed her own counterpetition for legal separation. After a trial on both petitions, the trial court denied George's petition for dissolution and granted Mary's petition for legal separation. Following the denial of post-trial motions, both parties appealed to this court in August 1984.

On March 14, 1986, this court reversed the trial court in In re Marriage of Bates (1986), 141 Ill. App. 3d 566, and instructed the trial court to enter an "immediate order of dissolution of marriage between the parties," and further instructed the trial court to "[thereafter] . . . reconsider the issues of maintenance and attorney fees in a manner not inconsistent with this opinion." Bates, 141 Ill. App. 3d at 575.

On May 12, 1986, Mary filed a petition requesting leave to appeal to the Illinois Supreme Court. The petition alleged several errors by this court but did not make bifurcation an issue. The Illinois Supreme Court denied defendant's appeal, and on July 9, 1986, this court issued its mandate to the trial court.

Following the issuance of the mandate, George, who was in ill health at the time, filed two motions in the trial court to compel the entry of a bifurcated judgment. On September 30, 1986, the trial court granted instanter a bifurcated judgment for dissolution of the marriage and reserved ruling on all remaining matters. The court also ordered that a hearing be set on all other matters on December 8 through 12 and December 15 through 19, 1986. That order provided in pertinent part: "It is hereby ordered that pursuant to the mandate, judgment for dissolution of marriage is hereby granted instanter." The record does not indicate what, if any, appropriate circumstances were found by the court to support its entering a bifurcated judgment.

By agreement of the parties, the hearing on the motion to vacate the judgment of dissolution was continued to December 29, 1986. On October 3, 1986, Mary filed a motion to vacate the judgment of dissolution of marriage entered on September 30, 1986. George died on December 28, 1986. The hearing set for December 29, 1986, was continued to March 4, 1987. George's will dated December 12, 1986, was admitted to probate on January 8, 1987. This will left no property to Mary.

On March 4, 1987, the trial court heard arguments on Mary's motion to vacate the judgment of dissolution entered on September 30, 1986. Throughout the hearing, the trial court in apparent contradiction to its ruling of September 30, 1986, in which it entered a judgment of dissolution, expressed great uncertainty as to the Bates opinion. At one point in the proceeding, the court stated the following:

"The reason it [the mandate] caused me so much trouble in the first place when we had the hearing on whether or not to enter the judgment is because I wasn't real sure what they wanted. That was the problem I had. Nothing against the appellate court, but I wasn't real sure."

Later in the hearing, the court stated as follows:

"Hindsight is always better than the present. Now, hindsight, of course, I would have never entered the judgment in this case, which Mr. Driscoll [Mary's attorney] says is not a judgment. And it is evidenced by the Discussions that we had on that date that I immediately allowed an oral motion to vacate for further hearing because I wasn't real sure what the appellate court said."

On March 5, 1987, the trial court granted Mary's motion to vacate and abated further proceedings in this cause of ...


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