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02/10/88 In Re Marriage of Naomi Madary

February 10, 1988

IN RE MARRIAGE OF NAOMI MADARY, PETITIONER-APPELLEE, AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

JAMES V. MADARY, Respondent-Appellant

519 N.E.2d 509, 166 Ill. App. 3d 103, 116 Ill. Dec. 617 1988.IL.169

Appeal from the Circuit Court of Du Page County; the Hon. Michael R. Galasso, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. LINDBERG, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Respondent, James Madary, appeals from an order of the circuit court of Du Page County finding him guilty of indirect criminal contempt for spitting at petitioner, Naomi Madary, as she was leaving the courtroom. After a hearing, the court ordered respondent incarcerated for three days. Respondent appeals. We affirm.

On June 23, 1987, respondent and petitioner were present in court for a hearing on petitioner's motion to voluntarily dismiss her divorce action. After the court granted petitioner's motion, as the parties were exiting the courtroom, respondent allegedly spit on petitioner's face. Petitioner's counsel alerted the Judge to the occurrence, and the Judge scheduled a contempt proceeding for 35 minutes later that day.

Respondent later appeared with counsel and was advised of the nature of the allegation against him. The court noted that if the allegation were true it would constitute indirect contempt. Respondent's counsel indicated that he was ready to proceed for hearing on the matter and requested a jury trial. The court denied respondent's jury demand, explaining that it did not intend to sentence respondent to more than six months in prison if he was found in contempt.

Petitioner first called respondent as an adverse witness. Respondent denied spitting on petitioner. Respondent further testified that petitioner did not speak to him during the previous court session, nor did she provoke him.

Petitioner subsequently testified that as she was leaving the courtroom, respondent pushed his way toward her and spit on the left side of her face and on her glasses. Petitioner stated that she did not speak to respondent or provoke him in any way. Petitioner's glasses were admitted into evidence and revealed a dried substance on the left lens.

Susan Kessl, who was attending court that morning on a separate matter, testified that she observed respondent spit on the left side of petitioner's face. Kessl was seated in the back row of the courtroom and heard no conversation between the parties. Kessl was not acquainted with the parties.

Respondent testified on his own behalf and again denied that he intentionally spit on petitioner. Respondent stated that he approached petitioner "to say 'way to go' sort of cynically about what had transpired in court," and a gland under his tongue sprayed saliva involuntarily. Respondent further stated that he was under stress and that this glandular reaction occurs during stressful moments.

Respondent's dentist, Stanley Drab, testified that it was not uncommon for someone under stress to have a sublingual gland build with pressure and release fluid. Drab further ...


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