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01/25/88 In Re Marriage of Timothy G. Maroon

January 25, 1988

IN RE MARRIAGE OF TIMOTHY G. MAROON, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and JOLENE R. MAROON, Respondent-Appellant

519 N.E.2d 49, 165 Ill. App. 3d 529, 116 Ill. Dec. 459 1988.IL.71

Appeal from the Circuit Court of Bond County; the Hon. Wendell Durr, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. KARNS and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

On November 7, 1986, the circuit court of Bond County entered a judgment which dissolved the marriage of petitioner, Timothy Maroon, and respondent, Jolene Maroon; awarded custody of the parties' child, Derek, to petitioner; and granted respondent certain visitation rights. Respondent promptly filed a post-trial motion. While that motion was pending, petitioner moved for a rule to show cause why respondent should not be held in contempt for refusing to abide by the visitation provisions of the court's judgment. Following a hearing, the court issued an order which, inter alia, denied respondent's post-trial motion and found her to be in contempt of court. This appeal followed. We reverse and remand.

Petitioner originally filed for dissolution on August 27, 1986. At the same time, he moved for an order of protection pursuant to the Illinois Domestic Violence Act (Ill. Rev. Stat. 1985, ch. 40, par. 2301-1 et seq.). The circuit court, Judge Clayton Williams presiding, granted the motion, ex parte, and ordered respondent not to remove Derek from Illinois. The court further ordered that petitioner was to have temporary custody of the child, and it scheduled a hearing on extension of its order for September 3.

Presiding at the September 3 hearing was Judge Daniel Stack. During the hearing, testimony was presented by petitioner, respondent, petitioner's mother, respondent's aunt, and two witnesses who were acquaintances of the parties. Based upon this testimony, Judge Stack extended the order of protection for a period not to exceed six weeks and set a hearing on the merits of the dissolution proceeding for October 15, 1986.

The October 15 hearing was conducted by a third Judge, the Hon. Wendell Durr. At the outset of the hearing, Judge Durr asked counsel:

"Are you in a position where you might be able to state what your respective testimony would be and agree to that without -- not agree to the accuracy of it, but agree that that would be the testimony without the time consumption of direct and cross and redirect, and all that, or do you need to go through that?"

In response, counsel for the parties agreed that they could relate what their respective witnesses had testified to at the prior hearing and stipulated that the testimony would be the same if those witnesses were called again. Counsel then proceeded to summarize the testimony for the court. There was no stipulation as to any facts. Counsel merely advised the court as to what the various witnesses had said and what certain exhibits had shown.

After evidence from the prior hearing was thus presented, the parties called various witnesses to give additional testimony. These witnesses included petitioner, respondent, and petitioner's mother, each of whom had testified previously. Testimony was also adduced from new witnesses, including petitioner's former employer, respondent's mother, petitioner's sister, a counselor, Derek, and a woman who had done babysitting for the parties. Three witnesses from the prior hearing, respondent's aunt and the two acquaintances of the parties, were not called again.

Based upon counsel's summary of the evidence from the prior hearing and the additional testimony and exhibits adduced at the October 15 hearing, Judge Durr entered a judgment dissolving the parties' marriage, awarding custody of Derek to ...


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